Society

Canada's Toughest Border Crossing

How one government policy makes it near impossible for Indigenous people to travel through their own community

BY


Map by Meredith Holigroski/Data from the Mohawk Council of Akwesasne
Map by Meredith Holigroski/Data from the Mohawk Council of Akwesasne

On a cold january morning in 2013, April Elaine Thompson was rushing out to work when her ex-husband called. He’d been scheduled to pick up their daughter, Kaitlyn, who was then eighteen, from Thompson’s place but wouldn’t be able to come over in time. Could Thompson drop her off at his place instead?

It wasn’t necessarily an unreasonable request: his home was on Thompson’s way to work. But Thompson, who is Mohawk, lives in Akwesasne, a reserve that sprawls across the United States–Canada border: sections of it stretch into Quebec, Ontario, and New York state.

To reach the school where she works, Thompson drives north from her home in upstate New York, across the bridge spanning the Saint Lawrence River to Cornwall Island, Ontario, and from there on to the city of Cornwall on the mainland, where the Canadian border post is located. There, she has to report to Canada Border Services Agency (CBSA) officials before continuing to her workplace. Thompson’s ex-husband, however, lives on Cornwall Island, so dropping off her daughter there meant Thompson would need to drive past his home on the island and to the border post on the mainland to report Kaitlyn and herself, return to the island to drop her off at his place, then drive back through the border post and re-report to officials before continuing. All told, she would roughly double her commute time—and arrive late for work.

Thompson decided to skip reporting her daughter, instead dropping her off en route to the border post, where she planned to report just herself and then proceed to work. But when Thompson reached the border post, a CBSA official pulled her over and demanded she enter the CBSA building for further questioning.

“I ended up spending seven hours there,” Thompson told me over a cup of tea at a Tim Hortons near her school in the spring of 2017, referring to the amount of time she spent held in a cell. “They took everything: my shoes, my money, my hair clip, my cellphone.” She was charged with aiding and abetting a person entering Canada without appearing before a CBSA border guard for examination. Thompson’s car was also impounded, and she needed to pay a fine of $1,000 before she was able to retrieve it. (The CBSA responded to some fact-checking inquiries but was not able to respond to questions about Thompson’s story.)

The Cornwall border post is one of over 100 that control traffic between the US and Canada and one of the fourteen road border crossings that straddle the Ontario line. Yet no part of the international border seems as complex as the region Cornwall’s border post services, which can include people who regularly move between parts of Ontario, Quebec, and New York. The figure changes over time, but in October 2015, roughly 70 percent of the border post’s traffic consisted of Mohawks from Akwesasne, many of whom, like Thompson, have to cross the international boundary on a daily basis—even when travelling within the reserve.

It’s not uncommon, for instance, for locals to live in upstate New York, work in the city of Cornwall, and drop off their kids at school in, say, Saint Regis in Quebec. Though they can drive past the border post, there is no legal way for them to avoid having to report there. (Members of the Mohawk First Nation are represented by the Mohawk Council of Akwesasne on the Canadian side of the border, while the Saint Regis Mohawk Tribal Council represents Mohawk on the US side.) Unless Canadian legislation changes, Mohawks travelling within their reserve could continue to face an environment of near-constant state surveillance and, consequently, the daily threat of being charged.

Thompson couldn’t figure out how border officials knew she had dropped off her daughter without reporting her. According to the CBSA, agents use technology, including cameras and data systems, to collect information but also work with law enforcement and community partners, sometimes even relying on public reporting. You don’t want to make enemies in Akwesasne.

The CBSA tracks the number of people who avoid reporting, marking them down in two distinct categories: port runners and those who fail to report inwards. The former are those who don’t comply with CBSA requirements. The latter are those who avoid reporting altogether. These can include regular commuters heading to their schools or workplaces. While the numbers are not particularly high—in 2016, the CBSA recorded twenty-two port runners and thirty-seven failures to report—in some cases, the infractions are considered offences under the Immigration and Refugee Protection Act. Repeat offenders could face jail time.

Border regulations, both on the Canadian side and on the US side, do little to ease travel for Mohawks in Akwesasne. Some Mohawks are covered by the Jay Treaty, under which Indigenous people in Canada who can prove, through verified documentation, 50 percent blood quantum—that at least half of their parentage is Indigenous—can use that documentation to enter and work in the United States. But the rights protected under the Jay Treaty are not enforceable for Indigenous people living on the US side of the border who travel into Canada, as the treaty is not recognized in Canada. Not long ago, some in Akwesasne—on both sides of the border—were sometimes able to travel using a Haudenosaunee passport, which indicated their Mohawk status. (The Mohawk Nation is a member of the Haudenosaunee Confederacy.) But such documentation rarely passes inspection.

Travel in the region wasn’t always as complicated. Until almost a decade ago, the Canada-US border post was located on Cornwall Island, which was more convenient for residents who travelled back and forth. In 2009, both Canada and the US increased efforts to stem illegal trade. (A 2013 report by the Macdonald-Laurier Institute, an Ottawa-based think tank, described the town of Cornwall as the “contraband capital of Canada.” The region offers choice avenues for smugglers to bring in and push out their wares, including tobacco, firearms, illegal drugs, and, on some occasions, humans. The report estimated that about $1 billion is lost to the illicit trade of tobacco.)

The RCMP launched a new patrol mission on the Saint Lawrence River. That same year, CBSA border guards were scheduled to be armed at the Cornwall port of entry as of June 1. In the leadup to that day, Akwesasronon—Mohawk residents of Akwesasne—gathered by the Seaway International Bridge, which spans the Saint Lawrence, carrying signs that read, “This is Mohawk Land,” “Guns Kill,” and “No Guns on Our Land.” According to court documents, the Mohawk Council of Akwesasne made it clear that it viewed the arming of border guards as an act of war against the Mohawks.

On May 31, the evening before the new rules for arming guards came into effect, CBSA officials retreated onto the mainland, a move that locals then heralded as a partial victory and an end to perceived occupation. But for the next five years, little changed. (Former Mohawk Council grand chief Michael Kanentakeron Mitchell, who is now an elder/advisor to the national chief of the Assembly of First Nations, says border guards began receiving cultural-sensitivity sessions, which improved relations slightly.) Then, in January 2014, a new $14 million port of entry was established in the city of Cornwall. The new location proved to be a far greater headache for those going about their day-to-day business, as the border was now not just a time-consuming checkpoint but geographically out of many people’s way.

Today, the Mohawk Council of Akwesasne maintains that the new border facility stands on traditional Mohawk land. Grand Chief Abram Benedict says that a land claim submitted to the federal government in 2014 was rejected and that the council is now gathering paperwork to keep pursuing its case.

For now, many Akwesasronon are focusing on proposing operational improvements. A report issued in 2017 on the issue of First Nations and border crossings, prepared by what was then Indigenous and Northern Affairs Canada, recommended installing machine-readable status cards, which would expedite travel times for those living on Cornwall Island and others visiting from the US side of the reserve.

Meanwhile, the underlying issue remains unresolved. Mohawks travelled in the area well before the international border existed. Should their historical presence not guarantee them a right of mobility today?

The current legal answer to that question—at least for Mohawks living on the Canadian side of the border—is tied to past cases that have addressed Indigenous mobility rights, many of which have come up against what critics call a frozen-rights approach, a controversial topic among legal analysts, constitutional experts, and rights activists. The approach requires that those asserting an Indigenous right, such as mobility within what is recognized as traditional territory, be able to prove—through historical record and archaeological findings—that the right is linked to a traditional custom or practice.

The current framework for the argument rests on decisions in historical cases such as R v. Van der Peet, which, in 1996 ruled that to establish an Aboriginal right under Section 35(1) of the constitution—which addresses the rights of Indigenous peoples in Canada—the activity in question must be recognized as integral to the Indigenous group’s culture and be linked to practices that existed prior to contact with European settlers. (For the Mohawks of Akwesasne, the contact point has been accepted as the year 1609, when French explorer Samuel de Champlain made his second visit to the vicinity of Montreal.) To some judges, daily activities such as going to school, attending a hockey game, or trying to get to work on time likely wouldn’t be viewed as meeting those requirements: they aren’t seen as traditional or integral to that group and thus aren’t considered relevant to Indigenous mobility rights.

When Thompson was charged in 2013, she decided it was time to take the issue of cross-border travel to the courts. While preparing her case with assistance from the Mohawk Council of Akwesasne, she learned about another resident, named Alicia Shenandoah, who’d had a similar experience. The council suggested the two combine their efforts, which they did.

Their lawyers argued that, as Mohawks, Thompson and Shenandoah should have the right of unrestricted mobility within all parts of Akwesasne. They brought in historians and an archaeologist to testify that Mohawk people had travelled in the region and that Indigenous people had lived in the area for thousands of years. But the judge was not convinced, as he found there to be no sufficient evidence of a Mohawk settlement at or near Akwesasne nor evidence of regular travel across what is now the international border. His decision sided with the Crown’s legal team, which argued in favour of CBSA officers’ ability to provide border integrity—the importance of which, Justice Peter D. Griffiths said, outweighed what he referred to as “minimal intrusion” into the daily lives of Mohawks.

Griffiths did, however, let Shenandoah and Thompson off with a conditional discharge and a six-month probation, an unusually lenient decision, given the charge. (The most lenient outcome would have been an absolute discharge; the maximum sentence would have included a fine or jail time or both.) One legal expert who analyzed R v. Shenandoah has questioned whether Thomspon and Shenandoah would have had a better case if they’d been stopped while on their way to a powwow instead of heading to work or to a lacrosse game.

When she heard the verdict, Thompson told me, she lost her nerve to pursue the matter further. Since similar arguments around the right of mobility presented in previous cases have also been shot down , it’s clear little will change until the courts begin to consider the mobility rights of Indigenous peoples within a contemporary context.

On the day of her arrest, Thompson spoke on the phone with her daughter, Kaitlyn. She was concerned the eighteen-year-old would try to cross the border on her own and get pulled over. She remembers urging Kaitlyn to stay on the island at her father’s place. (Kaitlyn does not recall her mother saying this.)

“I felt so guilty, that maybe it was my fault it had happened,” says Kaitlyn, looking back on that morning six years ago. “Your mom was being held, and it was because of you. You can’t forget that.”

Kaitlyn says she found herself suffocated between two border posts. She didn’t leave the island “for a while” after her mother called—probably a week. “Are they going to pull me in?” she wondered. “Are they going to arrest me?”

Eventually, she did cross the border back into the US, moving between her parents’ homes. She’s crossed the border many times since. She realized she couldn’t keep living in fear. “It’s going to be like this,” she says now. “It’s going to be like this my whole life.” The sense of dread and insecurity hasn’t left her.

“Even though it has been so long, it is deep down, and it’s there. You never know what you’re going to go through when you go through the border.”

This story is part of a larger reporting project with the International Women’s Media Fund.

Sonya Fatah is the editor-in-chief of J-Source and an assistant professor at the Ryerson School of Journalism.




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