Akwesasne

Gabriela De MedeirosBy Gabriela De Medeiros

UNDRIP

Article 3: Indigenous Peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 4: Indigenous Peoples, in exercising their right to self-determination, have the right to autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

 

As an immigrant, I have spent a lot of time thinking about borders and the impact of crossing them. These lines we draw on the soil are the stitched seams that hold together a world of nations that had to first be torn apart. These seams run through the lands in ways that don’t always reflect the network of relationships that the people living there have built over generations. The repercussions of these geopolitical fissures are a near-constant concern for those living in Akwesasne.

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Jurisdictional barriers have been at the forefront of my experience working for the Justice Department of Akwesasne from the start. The circumstance of the global pandemic made it so that I was stuck two borders away from the offices where I needed to be, and the sensitive nature of the work I was tasked with meant that I could not access most of the information outside of the closed network of the Justice Department. For the first two months, I was limited in what work I could complete, and I felt quite useless. I was entrusted with researching and drafting a boat registration policy, and I have to admit that it didn’t seem like very important work; as children’s bodies have been gradually exhumed over the course of the summer, and Canada and the United-States are increasingly forced to confront the violent legacy of residential schools, I hoped that as a law intern I could contribute meaningfully in some way. Boat registrations seemed mundane and unrelated to human rights work.

But as I delved deeper into my research, I began to understand the true scope of my task. Boat registrations for a river-based people are a significant jurisdictional battleground. The First Nation of Akwesasne is split between Ontario, Quebec and New York, and the Saint-Lawrence river that flows through the community is designated as international waters. The people of Akwesasne have always used the water in myriad ways, for transportation, sustenance and pleasure, a tradition that continues today as a large portion of the residents of the reserve own a water craft. But the same imposition of authority by the governments of nation-states over the affairs of Indigenous peoples that created the residential schools has transformed the way that the citizens of Akwesasne must manage their way of life. According to settler law, all boats must be registered in a federal database, and all vessels on the waters must produce their registration if ordered by an authority (usually the Coast Guard of either country).

I was tasked by the Justice Department to draft a boat registration policy and update the registration database to help the local tribal police force monitor their own community. This is a move toward establishing their own legal jurisdiction over the waters that surround their home. Apparently this has been a contentious resistance for generations, and Akwesasne has all but established its own jurisdictional authority through customary relationships with the states’ bodies. Denying the authority of a federal police over their affairs on the waters surrounding Akwesasne is nothing short of a stance in self-determination, an exercise of their right to autonomy and self-government.

water

At the end of my second month, the travel restrictions across provincial borders within Canada loosened up and I was called to go into the portion of Akwesasne on so-called Cornwall Island, known to the locals as Kawehno:ke. It’s an hour drive each way and there are no tolls anywhere on my path, until I get to the bridge connecting the Ontarian city of Cornwall to Kawehno:ke. Here my path is blocked by a toll booth and I must pay $3.75 to pass through the only entrance to Akwesasne from the Canadian side. This seemed immediately problematic to me, despite the assurance by my supervisor that my fees would be reimbursed. I inquired as to whether the residents of Akwesasne are permitted to cross for free, and was told that they are indeed granted passage if they show their Indian status card to the toll operator. However, this was a “privilege” that had to be fought for, as initially they had been expected to pay.

I can’t imagine that the decision to construct a toll bridge on that specific crossing was done with a benevolent or even neutral intention. In fact, I was informed that the legal justification for the toll bridge was a strip of land across the length of Kawehno:ke which had somehow been expropriated by the Canadian government — the bridge technically connects Cornwall to Crown-owned land, and not to an Indigenous reserve, and as such it does not infringe on Akwesasne’s right to control the lands within the reserve.

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In these few weeks that I have been involved with the Justice Department, I have learned that self-determination plays out not only on the scope of international law, but most importantly in the day-to-day interactions people have with their environment. The jurisdictional battles within the community of Akwesasne have created a patchwork of legal negotiations that the residents must navigate on a quotidian basis, because over the last century and a half they have been denied their own agency by the governments of Canada and the United-States.

I am certain that those who are uninformed see the victories that Indigenous peoples win over time, such as the right to cross the toll bridge without paying, without considering the significant costs which were imposed first. For instance, while Akwesasronen may cross freely onto Kawehno:ke, to cross back into Cornwall and the rest of Canada they must be interrogated by a customs officer at the line we call a national border. Because their community, which predates our settler geo-political borders, have been split up between three different jurisdictions, they are forced to adapt their daily lives to the demands of a government that was imposed on them. The burden of crossing the border has on many occasions impacted the decisions my coworkers have made about when they make the effort to go see family members or run errands within their very community.

As I continue my work with the Justice Department of Akwesasne, I can only imagine what a world without State borders would look like.

What happens to a community divided by an international border when the border closes?

Maya GunnarssonBy Maya Gunnarsson

Like most other communities in the world right, the COVID-19 pandemic has profoundly impacted the Mohawk community of Akwesasne.  However, while many of the disruptions to daily life Akwesasronon (Akwesasne community members) are experiencing may be familiar to outsiders, such as the need to practice physical distancing, working from home, and wearing a mask in public, one way in which this pandemic has impacted Akwesasne is quite unique: the Canada-US border closure.

A Community Divided by the Border

Akwesasne, a community of approximately 13,000 people, straddles Ontario, Quebec, and New York—a jurisdictional headache at the best of times. Larissa Parker, last summer’s intern at the Akwesassne Justice Department, blogged about Akwesasne’s unique jurisdictional challenges and the impact of the international border on Akwesasronon. To further complicate things, the part of Akwesasne that is in Quebec is an exclave—meaning it is only accessible by land via the US. In short, crossing the Canada-US border is an unavoidable daily reality for those living and working in Akwesasne.

Source: Meredith Holigroski (The Walrus)

All non-essential land travel between the Canada and the US has been shut down since March 21, 2020, as a way to limit the spread of COVID-19.  Initially announced as a month-long measure, this restriction on cross-border travel has been extended 4 times already, with predictions that it will stay in place for the foreseeable future. Further, anyone entering Canada from abroad is required by law to quarantine for 14 days. This has meant that my internship with the Akwesasne Justice Department has had to become remote. The Justice Department office is located in the Quebec exclave part of Akwesasne, meaning I would need to cross the border and report entry twice to get to the office and twice to get home every day.  Although there are exemptions to this border closure for critical healthcare and infrastructure workers who need to cross the border to get to work every day, my internship does not qualify for one. Closing the border and requiring 14 days of self-isolation following any border crossing for Akwesasne residents, however, is simply not practicable.  Residents need to cross the border to buy groceries, go to work, and access essential services such as banks, daycares, and healthcare providers.

Indian Status and the Right to Freely Pass

From the Treaty of Paris in 1783 and the Jay Treaty of 1795, to the Treaty of Ghent in 1812, the US and Britain signed a number of agreements establishing part of what is now the Canada-US border.  These agreements are ultimately what led to the community of Akwesasne being divided across jurisdictional boundaries.  Also included in the Jay Treaty and then reaffirmed in the Treaty of Ghent, is a recognition of Indigenous peoples’ right to freely pass the border. However, while the US recognizes the Jay Treaty, Canada does not.  That being said, residents of Akwesasne have been granted an exception under the current border closure, so long as they identify themselves at the border with their Indian Status card.  The majority of Akwesasronon have Indian Status, meaning they are allowed to continue to cross the international border that runs through their territory throughout this pandemic.  However, those without a Status Card have been left stranded in the part of the territory where they live.

Border officials are only accepting Indian Status Cards (issued by the federal government), and not Tribal Identification Cards (issued by the St Regis Mohawk Tribal Council on the American side of Akwesasne) to cross the border.  Indian Status eligibility is set out by the Indian Act, and has been subject to many criticisms due to its history of gender discrimination, its criteria that focuses on “blood quantum,” and the fact that it gives Ottawa the right to determine who is an “Indian,” rather than First Nations, themselves. This requirement means that Akwesasronon who are accepted as Mohawk by their community but are not eligible for or do not currently have a Status Card are unable to traverse their territory freely. These individuals are subject to all the border restrictions currently in place for other Canadian and American citizens. These restrictions, in turn, are severing family bonds in the community.

Many families in the region have a mix of Status and non-Status family members.  As of 2011, only about three-quarters of First Nations people in Canada were Status Indians, although Akwesasne-specific data is not available. The child of a Status Indian and a non-Status Indian or non-Indigenous person may or may not be eligible for Indian Status, depending on which provision of the Indian Act their parent received their Indian Status under.  The current border restrictions could prevent a non-Status child from seeing both of their parents if their parents live in different parts of the territory, or one lives off-reserve.  The restrictions could also limit the ability of one parent to bring their child to the other parent’s home. Furthermore, there have been cases of non-Indigenous spouses not being able to attend funerals or other important (socially distanced) family gatherings as a result of this border closure.

In addition to the way this closure is impacting families, it has also cut off many Akwesasronon from home services.  People like cable technicians, appliance repairpersons, plumbers, and electricians are unable to access the homes of many people in Akwesasne as a result of this border closure.  Even where they may technically be eligible for an exemption as an essential service provider, many are unwilling to come to Akwesasne due to the intense scrutiny they face when crossing the border.  And as for those residents who are still able to cross the border, there have been reports of increased harassment by border agents who are weary of Akwesasronon’s constant border crossings and concerned about the perceived health risk this poses.

Staying Safe during the Pandemic

Akwesasronon have valid concerns about their continued ability to traverse the international border that cuts through their community. However, they also have fair reason to be concerned about the spread of the coronavirus in their community—the Canadian provinces and American state that surround Akwesasne have some of the highest infection rates in each country. In Canada, Ontario and Quebec have had the highest number of cases throughout the pandemic, with approximately 39,000 and 59,000 cases, respectively, confirmed to date.  Combined, this accounts for 85% of all cases in Canada. In the US, the state of New York was the epicentre of the pandemic towards the start, and now has the third highest number of cases confirmed, with 418,000, accounting for 10% of total cases in the country. So how is the community protecting itself from the spread of the coronavirus amid constant cross-border movement between regional hotspots?

Akwesasne has imposed its own quarantine requirements. Anyone who enters the territory from outside of the 50-mile (80-km) radius surrounding Akwesasne is required to self-isolate for 14 days.  This means that anyone coming from any of the major city hotspots near Akwesasne (Toronto, Montreal, New York City) is required to self-isolate upon entering Akwesasne, regardless of whether they crossed the border.

This approach seems to be working.  Since the start of the pandemic, there have been a total of twelve COVID-19 cases in Akwesasne.  Considering its proximity to hotspots and its unique jurisdictional challenges, this low infection rate is all the more laudable. But, if Akwesasne’s own quarantine requirements seem to be effective at slowing the spread of the coronavirus, why are non-Status community members being excluded from travel exemptions?  The answer to this is probably the same as to the question of why community members are forced to go through border checkpoints every day in the first place—the Canadian and American governments have a history of interfering with and challenging Akwesasne’s sovereignty, and the actions taken during this global pandemic are no different.

Ultimately, Akwesasronon are used to dealing with border troubles.  From racist encounters with border agents, to heavy fines for delaying or failing to report entry, Akwesasronon have faced more than their fair share of border woes over the years, with a class action against the Canada Border Services Agency launched last year.

The community has adapted to having an international border run through their community, and they will adapt once again to the current border restrictions. But with no end in sight for this border closure, one has to wonder what the long-term impacts of these restrictions will be on the community.  While people around the world are wondering when life will return to normal, some Akwesasronon are left to wonder how many more months it will be until they can visit family members a mere 15-minutes away.

Strawberries, Nature, Culture, and Community

By Allen Brett Campeau

I spent most of my Akwesasne internship in Kana:takon in Akwesasne Mohawk territory, but I also had the opportunity to participate in several excursions, both on and off reserve. Two of the most enriching for me were my trips to Ottawa-Carleton Detention Centre (OCDC), a correctional and remand facility in Ottawa, and the Thompson Island Youth Cultural Camp (Tsikionhet Onkwawen:na tanon Tsiniionkwariho:ten), which was held on reserve in the St. Lawrence River. I met with Indigenous inmates at OCDC and Indigenous youth at the Cultural Camp.

At both OCDC and the Cultural Camp, we were joined by Mohawk elders and knowledge-keepers, who shared their knowledge of Mohawk culture and the Mohawk creation story. These teachings emphasized respect for the natural world and humanity’s connection with the land and non-human beings. I was particularly intrigued by the important role of traditional food in medicine and ceremony. Food was prominent in the teachings of the elders and knowledge-keepers at both the OCDC and Thompson Island events. Although the audiences were different, the key message was largely the same: “Whatever life’s hardships, the natural world—Mother Earth—will sustain us.”

At the Cultural Camp

I visited OCDC on June 21st for an Indigenous Peoples Day Celebration. Over the course of the day, we met with close to fifty Indigenous inmates—in groups of ten—in the OCDC prison yard, where we shared traditional foods, danced traditional dances, and listened to Mohawk teachings. Many of the inmates had gone months without seeing grass, I learned; they were immensely grateful for the chance to sit outdoors on this sunny day, with grass beneath their feet. Many inmates took off their shoes to make the most of their brief time in the yard. After less than an hour, they would be ushered back indoors. Our moments together were quite short, but they still felt significant. The inmates were all very kind and happy to meet with us.

After listening to the knowledge-keepers and dancing a few dances, we sat around a fire for a traditional meal: corn soup, frybread, and strawberries. I helped to prepare the food the night before, so the opportunity to share it with the inmates, and to learn about its significance from the knowledge-keepers, was very rewarding. The heart-shaped strawberry is symbolic of life and heath. It is recognized as a leader of the medicine plants because of its early ripening in the new year. It was also, I learned, one of two plants (along with tobacco) to have descended to Turtle Island with Skywoman in the Mohawk creation story. It is a food of incredible cultural significance, but likely one that few OCDC inmates had enjoyed since their incarceration. However, as one elder pointed out, strawberry plants could be found growing in the prison yard.

Around the fire

In the relatively lush surroundings of Thompson Island, strawberries and other traditional food and medicine plants were abundant. The rich natural setting made the perfect backdrop for the mid-August Cultural Camp. I acted as a chaperone for some of the twenty-odd Mohawk teenagers that came to learn about their culture, practice traditional skills, and enjoy the outdoors. We swam, canoed, played lacrosse, and ate good food. After burning off some energy, we would also sit and listen to traditional Mohawk teachings, including an hours-long telling of the Mohawk creation story. Here too, like at OCDC, we learned about the central importance of love and respect for Creation.

Many of the young people came to the Cultural Camp because they wanted to be there, but presumably some came at the insistence of their parents or loved ones—“it will be good for you”. It was, after all, an opportunity to learn more about Mohawk language, traditions, and stories. For a young Indigenous person—indeed, any person—knowledge about and pride in your culture and identity is crucial to living a good life. It keeps you grounded in and connected to your community. In Indigenous worldviews, this connection to community easily extends to the natural world. It is maintained through time in nature and participation in traditional practices, including those surrounding traditional foods.

In my last evening at the Cultural Camp, we sat around a fire and danced many of the same dances that we tried at OCDC. It was easy to see parallels between the experiences: we were all connecting or reconnecting to nature and culture, and in so doing, nurturing a part of ourselves that is often underdeveloped in modern urban or reserve life. For the OCDC inmates, the sense of estrangement from nature, culture, and community was likely more acute, but it is something that many of us struggle with, even in ideal circumstances. We can all benefit from time immersed in nature and culture, learning from our elders and peers, whether at camp for a week or just an hour with good food in the sun.

Rivers and Borders: Environmental Protection in Akwesasne Mohawk Territory

By Brett Campeau

The Mohawk community of Akwesasne is connected by rivers and divided by international and provincial borders. It sits at the confluence of three rivers—the Raquette, the St. Regis, and the mighty St. Lawrence—which serve as highways, trade routes, and reliable sources of fish. Akwesasne also sits at the intersection of three settler jurisdictions—Ontario, Quebec, and New York State—giving rise to jurisdictional issues that complicate Mohawk efforts to protect the rivers from harm.

The health of the rivers, and their ability to provide healthy food, has been degraded by heavy industry, hydroelectric development, and the construction of the St. Lawrence Seaway. These developments continue to have adverse effects on the environment, restricting the ability of Akwesasro:non to fully engage in fishing and other subsistence harvesting activities. Although heavy industry has largely disappeared from the shores of the St. Lawrence River, its legacy persists in local wildlife and the contaminated riverbed, with enduring health consequences for Akwesasro:non and other local people.

Akwesasro:non have won partial compensation for these environmental harms, but they continue to fight for enhanced environmental cleanup and a leadership role in environmental management. These efforts are complicated, however, by the complex jurisdictional arena.

Akwesasne Conservation and Compliance Officers on patrol in the St. Lawrence River

The international border divides Akwesasne into two parts: the St. Regis Mohawk Reservation (in the United States) and the Akwesasne Indian Reserve (in Canada). The Canadian reserve lands are further divided into three districts: Kana:takon (or St. Regis Village) and Tsi Snaihne (or Snye) in Quebec, and Kawehno:ke (or Cornwall Island) in Ontario.

The Akwesasne Justice Department, under the Indian Act band council government in Canada, has sought to exercise Akwesasne jurisdiction in environmental protection. Legislative development and enforcement efforts are making significant progress in this area, despite ongoing capacity issues and the reluctance of settler governments to cooperate.

Akwesasne has an acute interest in the management and conservation of fish and their habitat. It aims to exercise its jurisdiction in this area by enforcing its own environmental laws. It is currently updating a 1989 Wildlife Conservation Law and drafting a new water law, which should improve its ability to protect the rivers and wildlife on Akwesasne Lands.

The rivers of Akwesasne have been negatively impacted by industrial pollution from both Canada and the United States. Decades of dumping from now-shuttered factories—including the Domtar pulp mill in Cornwall (Ontario) and the General Motors and Reynolds Metals/Alcoa facilities in Massena (New York)—has resulted in the accumulation of polychlorinated biphenyls (PCBs), heavy metals, and other pollutants in the ecosystem. Efforts to dredge up, remove, or cap contaminated river sediments have been somewhat successful, but pollutants continue to circulate in the ecosystem and affect human health.

The health risks of consuming contaminated fish must be weighed against the cultural value of subsistence harvesting in Indigenous communities. Akwesasne governments advised Akwesasro:non to restrict their consumption of locally caught fish when the health risks emerged, but some consumption still occurs; fish remain an important component of the diet of many Akwesasro:non. Fishing also helps to reaffirm the connection between Akwesasro:non and the natural environment, thus serving an important cultural role in the community.

The author on a ride-along with Akwesasne Conservation and Compliance Officers

The constraints of the Indian Act have not stopped Akwesasne from exercising its inherent right to govern its lands and waters. Akwesasne Laws are being applied to protect the rivers and wildlife on Akwesasne Lands, despite jurisdictional uncertainties regarding enforcement powers and the authority of the Akwesasne Court—established in 2016—to adjudicate legal issues.

The Akwesasne Court has been tacitly accepted by the Canadian federal government, but full formal recognition from Canada, Ontario, and Quebec remains elusive. Apart from the 2013 Iatathróna Raotiientáhtsera ‘Couples Property’ Law, which uses the Akwesasne Court to adjudicate matrimonial real property issues, no Akwesasne Law with an explicit Akwesasne Court role has been formally approved by the federal government. Inter-governmental agreements are needed to formalize the Akwesasne Court’s jurisdiction and clarify its relationship with the courts in Canada, Ontario, and Quebec. Internal review and appeal processes will ideally capture most legal challenges, but Akwesasne Laws will need to be respected (and potentially enforced) by outside courts as well.

Akwesasne Conservation and Compliance Officers have been actively enforcing Akwesasne Laws, despite many of these laws—originally formulated as Indian Act bylaws—being formally disallowed by Indian Affairs pre-2000. Akwesasne Laws are now developed and enforced under Akwesasne’s inherent authority as a self-determining and self-governing First Nation. The federal government has not seriously challenged these laws or Akwesasne’s authority to enforce them, suggesting tacit approval. In addition, Akwesasne enforcement efforts have not been opposed by outside enforcement agencies. The Akwesasne Officers are beginning to gain the support of their provincial, state, and federal counterparts.

I recently observed Akwesasne enforcement efforts in a “ride-along” with Akwesasne Conservation and Compliance Officers. We spent a Saturday in June on the St. Lawrence River enforcing the 1989 Wildlife Conservation Law, including a requirement for non-Akwesasro:non fishermen to carry an Akwesasne fishing permit. We approached several boats with fishing lines in the water, but none of them—on this day—had their permit. Most of the fishermen pleaded ignorance and complained about the unclear jurisdictional boundaries. These are Akwesasne waters? I didn’t know. The officers did not write any tickets, but they invited the fishermen to buy the $10 year-long permits from them or at a local marina.

Akwesasne Laws encouraging responsible fishing are just one element of the community’s efforts to protect the rivers and wildlife. Although their relationship with outside courts and enforcement agencies remains somewhat murky, Akwesasne Laws have the potential to significantly improve ecosystem and community health. And with the authority of Akwesasro:non and their elected governments behind them, they are likely to gain the recognition needed for deepened environmental cooperation with settler governments.

National Aboriginal Day at the Ottawa-Carleton Detention Centre

Madeleine MacDonaldBy Madeleine Macdonald

On National Aboriginal Day, we went to Ottawa.

Ottawa has been getting a lot of love this summer, as countless dollars have been pumped into Canada 150 celebrations. National Aboriginal Day was no exception, and celebrations were held overlooking Parliament.  Leaders, elders, and community members feasted and danced; they spoke of reconciliation and snapped photos. By all accounts, a good time was had.

Across the city, nestled among mature trees and strip malls, lies the Ottawa-Carleton Detention Centre. The OCDC is a remand facility, a sort of processing warehouse for inmates as they move through the justice system.  From pre-trial detention to conviction to sentencing to incarceration, this is where inmates stay before they arrive at the correctional facility where they will serve out sentences longer than 60 days.  But don’t be fooled by the label. Despite its innocuous name, OCDC is a maximum security facility with everything that entails: barbed wire, industrial food, strip searches, and solitary confinement.

On a beautiful, sunny summer day, a team from the Mohawk Council of Akwesasne, Akwesasne Justice Department skipped the downtown parties and schmoozing to celebrate National Aboriginal Day in prison. The percentage of aboriginal inmates at OCDC hovers around 30%, relative to 3.8% of the national population. Despite this, 2017 marked the first time a cultural celebration was held for NAD there. Increased aboriginal cultural and spiritual programming is just one of the recommendations of the OCDC Task Force, struck in March 2016 to address reports of deplorable conditions and overcrowding.   

That day, aboriginal inmates who had shown good behaviour were invited out into the yard for a surprise. Native Inmate Liaison Officer Brian David greeted them with smudging before welcoming them into the yard, which held a mid-construction sweat lodge and a circle of chairs. Our guests were treated to a feast of homemade fry bread, corn soup, and fresh strawberries. Wearing his formal Gustowah (feathered headress), Satekaronhioton Fox of Native North American Travelling College told creation stories. Joyce King, Department Director, spoke of culture and restorative principles, emphasizing the importance of knowing one’s identity. In Haudenosaunee culture, to be prepared to for death, each one must know five things: their name, clan, language, song, and their medicine.  Then, we danced.  

Singing and drumming, the men from the travelling college led and we all followed.  Shuffling behind, the women massaged the earth with their feet, just as Sky Woman massaged the dirt on Turtle’s back to create the world.  We laughed. We sang.  Just like the big shots downtown, we feasted and feted, but there were no photo ops, because cameras are contraband.  

And as we were dancing around a barbed-wire enclosed prison yard, an osprey appeared overhead in that blue and cloudless sky, soaring wide and graceful arcs. Beneath him, for a moment, we were all free.

A Few Words on the Tekaia’torehthà:ke Kaianerenhsera (Akwesasne Court Law) to Commemorate the “Birthday” of the Akwesasne Mohawk Court

2016 Philpott AmeliaBy Amelia Philpott

Over the past months of my placement with the Mohawk Council of Akwesasne Justice Department, there have been some exciting legislative developments in the community. In June a referendum was held on the Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law) regulating the manufacturing and distribution of tobacco on the territory,[1]  and this month the community’s Tekaiatorehthà:ke Kaianerenhsera (Akwesasne Court Law) came into force.

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

The cover page of the Akwesasne Court Law. This is a picture of the crumpled paper copy I carried around with me all summer. A full (less crumpled) version is available on the Akwesasne Law Registry (link at the bottom of the blog post).

I have decided to focus this blog post to the latter. The Akwesasne Court Law coming into force is an event worthy of celebration not only for the Mohawks of Akwesasne, but also for First Nations across Canada, because it marks  the “birthday”[2] of the first ever independent court established by a First Nation.

Background

The Mohawks of Akwesasne have been administering their own justice since well before Jacques Cartier first arrived on Mohawk territory in 1535.[3] As members of the Haudenosaunee Confederacy, The Mohawks were united with the Cayuga, Onondaga, Oneida, Seneca, and later the Tuscarora, under the Kaianerekowa (Great Law of Peace); bringing together the previously warring nations. This law enforced the matrilineal clan system across the Confederacy, based on hereditary leadership.[4]

With Canadian Confederation, however, came a number of obstacles preventing the community from being able to effectively exercise their traditional Haudenosaunee government. Section 91(24) of the Constitution Act 1867 assigning “Indians and Lands Reserved for Indians”[5] to federal jurisdiction was used to justify a number of assimilative policies which had, and continue to have, severe repercussions for all First Nation communities, including Akwesasne.

In Akwesasne, elections were imposed by the Canadian government in 1899 in an attempt to disempower the traditional Mohawk council of chiefs.[6] This imposition, along with the larger assimilative scheme of the Canadian government, ultimately prevented the community from being able to administer their own traditional justice effectively.

Perhaps the greatest obstacle Akwesasne faced in this regard was the drawing of a Canadian-American international border squarely through their territory, and the further quartering of their land into the Canadian provinces of Ontario and Quebec. These borders alone have made it virtually impossible for the community to administer one cohesive justice system, since the Mohawk Territory of Akwesasne, and the larger Haudenesaunee Confederacy, now have to contend with multiple imposed colonial jurisdictions.

The Akwesasne Mohawk Court

Despite efforts to dispossess the Mohawks of their traditional institutions, the community has never stopped asserting their right to govern themselves and their traditional territory.[7] The Akwesasne Mohawk Court is an example of this.

The court itself, established by the Mohawk Council of Akwesasne (MCA), has existed since the 1970s, but its character has evolved substantially since then. For the first twenty or so years of existence, the court operated under the Indian Act, with Minster of Indian Affairs approved justices of the peace adjudicating by-laws passed under section 81 of the Act.[8] The court was therefore under tight control of the Canadian government.[9]

Over the past few decades, a number of interrelated factors made it easier for the community to effectively assert their right to make their own decisions about their judicial institutions.

Firstly, the Constitution Act 1982 entrenched this right by  “recognizing and affirming existing Aboriginal […] rights”[10] under section 35(1) of the Act. This effectively gave the assertion of this right a Constitutional backbone. Furthermore, towards the end of the 1980s the Minister of Indian affairs began rejecting a greater number of by-laws proposed by the MCA. The band council ratified some of the rejected by-laws anyway, marking the beginning of the community passing legislation themselves under their inherent right, as opposed to under the authority of the Indian Act.[11]

An important factor leading to the establishment of an independent court at Akwesasne was a report produced by Bruno Steinke in 1995 (the Steinke Report). The findings of the report indicated that overwhelmingly Mohawks of Akwesasne were in favor of establishing their own independent Mohawk court on their territory. The survey indicated that the community wanted a court to be structured like a Canadian court, with the incorporation of traditional restorative Haudenosaunee principles, presided over by justices from their own community.[12]

A reading of the Akwesasne Court Law clearly demonstrates that the Akwesasne Mohawk Court as it stands today has been modelled directly from the Steinke Report recommendations. The law represents a significant shift from the Court’s earlier days of operation in one very important way:  its source of authority is the community itself, and their inherent right to self-govern, as opposed to the Canadian government via the Indian Act.[13]

The Akwesasne Court Law

This Akwesasne Tekaiarorehthà:ke Kaianerénhsera (Akwesasne Court Law) reflects the values of the Mohawks of Akwesasne and the principles of Sken:en (peace), Kasatstensera (strength) and Kanikonri:io (a good mind), respect, fairness as well as natural justice.[14]

The coming into force of the Akwesasne Court Law on August 12 laid a framework enabling the Mohawk Council of Akwesasne to adjudicate their community laws. The law sets out the principles, powers and authorities of the Akwesasne Mohawk Court and governs the conduct of the institution’s justices. It also outlines the Court’s jurisdiction, which spans across a broad range of civil matters, including contract disputes, matrimonial property, and the regulation of untaxed tobacco products on the territory.[15]

Aside from the symbolic significance of Akwesasne Court Law for Akwesasronon[16] in terms of what it means for the MCA’s assertion of self-government, the law also places the community at the forefront of indigenous self determination efforts in Canada by laying the foundation for the first independent court established by a First Nation.[17]

The mix of legal traditions informing the Court Law is also unique: In accordance with the expressed will of the community,[18] the court is set up to be adversarial; operating in accordance with fundamental principles of Canadian justice.[19] What sets it apart from Canadian courts is the incorporation of traditional restorative Mohawk principles into the institution’s judicial framework.

The distinct blend of traditions in the Akwesasne Court Law is particularly present in its sections pertaining to remedies. While some are in line with what one might expect a provincial or Federal judge to order, others are unique to the Mohawk Court. Illustrating the former, section 9.3  states the payment of fines or ordering injunctions are both within the scope of remedies a Mohawk judge might order.[20] On the other hand, the requirement under section  3.4 that a judge consider “the talents of the [offending party]”;[21] and use these for the benefit of the community to remedy their infraction; is a consideration one would certainly not encounter in a Canadian Court.

The inclusion of Mohawk principles in the Akwesasne Court Law  is important for two reasons: Firstly, it is an affirmation of the community’s cultural identity. Secondly, by employing restorative mechanisms focussed on healing for offenders, the law illustrates an approach to justice which promotes the long term wellbeing of the community.

On a practical level, the Akwesasne Court Law guarantees members of the First Nation that their cases will be heard by a Mohawk Judge from their own community, and that they can choose to have court proceedings conducted in either English or Mohawk.[22] The law will also lessen congestion in nearby provincial courts, as it gives Mohawks of Akwesasne the possibility of referring to their own court to adjudicate community matters.

Concluding Thoughts

At the Akwesasne Justice Department I have been fortunate to work with some of the amazing trail-blazing minds behind the Akwesasne Court Law. I feel being an intern here during the first “birthday” of the Akwesasne Mohawk Court essentially gives me a backstage pass to history-in-the-making. Expressing how much this has meant to me is difficult, but suffice to say I consider myself to be one incredibly lucky law student (and human being).

You can find a digital copy of the Akwesasne Court Law, along with other community legislation on the Kaiahnehronsehra iehiontakwa (Akwesasne Law Registry):

http://www.akwesasne.ca/lawregistry

 


[1] Akwesasne Oién:kwa Kaianerénhsera (Akwesasne Tobacco Law), MCR 2016-2017-#075, Purpose para 2.

[2] Credit to Gilbert Terrance, Court Administrator, who called August 12th “the Birthday of the [Akwesasne Mohawk] Court.”

[3]  Frey, S.L., The Mohawks : An Inquiry Into their Origin, Migrations and Influence Upon the White Settlers, (Utica: Oneida Historical Society, 1898) at p 6.

[4] Joyce Tekahnawiiaks King, “The Value of Water and the Meaning of Water for the Native Americans Known as the Haudenesaunee” (2007) 16:3 Cornell Journal of Law and Public Policy 1.

[5] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91(24) , reprinted in RSC 1985, Appendix II, No. 5.

[6] Rarihokwats, How democracy came to St. Regis & the thunderwater movement, (Rooseveltown, NY: Akwesasne Notes, 1974) at p 8.

[7] Ibid at p 3.

[8] Indian Act, RSC 1985 c I-5.

[9] Anna Gilmer in conjunction with the Akwesasne Justice Department, History of the Akwesasne Mohawk Court (2015) at p 6 [unpublished, archived at the Mohawk Council of Akwesasne Justice Department].

[10] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[11] Ibid note 6 at pp 8-9..

[12]   Bruno Steinke, “Justice Needs in a Mohawk Community: Akwesasne” August 1995  at pp 65-70.

[13]  Akwesasne Tekaia’torehthà:ke Kaianerénhsera (Akwesasne Court Law), MCR 332 2016, Preamble para. 10.

[14] Ibid at Purpose para 2.

[15] Ibid at ss 5.1-5.4

[16] “Akwesasronon” is the Mohawk term for community members of Akwesasne.

[17] While other First Nations have established courts (see the Nisga’a Treaty), the Akwesasne Mohawk Court is the first institution of its kind established under the inherent Aboriginal right to self-government, recognized and affirmed by section 35 of the Constitution Act, 1982.

[18] Ibid note 9.

[19] For example, section 7 of the law helps to ensure the principle of judicial independence is upheld by holding the Akwesasne ratiianerenhserakweniénhstha (justices) and teshatiia’toréhtha (appeal justices) accountable to the Akwesasne Review Commission for their conduct. The Akwesasne Review Commission can also be called upon to rule on an alleged conflicts of interest of justices or appeal justices.

[20] Ibid note 13.

[21]  Ibid.

[22] Ibid at s 4.2.

 

 

Justice in an Indigenous Community

2015 Gilmer AnnaBy Anna Gilmer

I have recently completed my internship at Akwesasne, a cross-border Mohawk community near Cornwall, Ontario. I was specifically working for the Mohawk Council of Akwesasne, which governs the Canadian half of the community and is located partially in Ontario and partially in Quebec.

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When I sat down to write this second blog post, I reflected on my time at the Akwesasne Justice Department, and tried to think of the most interesting thing about it. As I considered everything I had been exposed to at the department, about all the programs and services that they run, I was struck by the huge scope of their mandate.

The Justice Department of the Mohawk Council of Akwesasne is made up of only approximately 17 staff. But these 17 people cover a huge range of services. Their lawyer and paralegals provide legal assistance on all legal matters to community members and to the band; they have probation and parole services as well as an early release program in place for community members in both Ontario and Quebec; and they run the conservation and compliance offices. They also draft new legislation, conduct the local elections and referendums, and are currently in negotiations with Canada for a final self-government agreement. The Akwesasne Mohawk Court serves as a community court, addressing matters within a specified mandate. Finally, the Community Justice Program (a program within the department) assists with young offenders, organizes community service work, and runs diversion programs and circle sentencing. It is a huge portfolio, and represents an impressive move towards local control over justice.

Of course, many aspects of justice at Akwesasne are reflective of outside structures, since the system has had to be redeveloped from scratch in the last few decades. In a discussion of the Akwesasne Mohawk Court, the Director of the department, Joyce King, explained to me that when the court was set up, the department brought in Canadian lawyers to train Justices. As such, the court is reflective of the only system those lawyers knew: it is adversarial, with the Justice at the front and rules reflective of Ontario and Quebec procedure. Despite the strong Canadian influence, the Justice Department has worked to incorporate Mohawk traditions, values and laws. Community control has also been prioritized, and is central to law enactment procedures and other processes. It is interesting to see how the community has worked to regain a Mohawk system of justice on the territory.

What is also interesting about the justice department, and especially about the Community Justice Program, is its genuine focus on ameliorating the problems facing the community. Among other things, this means addressing such issues with youth, and helping them stay safe and out of the justice system. Between my research and writing, I had the opportunity to help plan and then attend the program’s Summer Cultural Youth Camp. The Camp was focused on culture, and provided youth in the community (and particularly those in contact with the justice system) with an opportunity to practice their culture, to listen to teachings, and to live Mohawk values. They fished, sang, danced, did crafts, made fires and listened to stories. Programming also addressed issues facing youth in the community, such as drug and alcohol abuse, the large number of missing and murdered Indigenous women, and more generally the continued effects of colonialism. I was impressed by how well the participants responded to the camp.

In a small but incredibly complex community, the Akwesasne Justice Department does a lot. It attempts to rehabilitate community members who have been convicted. It works to keep youth safe and away from criminal activity. It incorporates Mohawk traditions and values into the justice system. It passes laws that reflect community priorities and ideas. Of course, it faces its share of challenges, and the structures in place are not perfect. Nonetheless, it is an impressive example of the kind of work that Indigenous communities are doing to regain control and assert self-determination.

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