TERRITORY OF AKWESASNE – A long-anticipated trial has commenced this week in Cornwall’s Ontario Court of Justice as two cases of Akwesasne residents being criminally charged by the Canada Border Services Agency are being challenged. These two cases were selected specifically to serve as constitutional test cases to challenge CBSA’s interpretation of the Customs Act and Immigration and Refugee Protection Act at the Cornwall Port of Entry. Both cases involve Akwesasne women who allegedly did not directly report to Canada’s Port of Entry in Cornwall, but first stopped on Kawehno:ke (Cornwall Island) to drop children off.

Phase 1 of the trial began on Monday, Dec. 9 and gives CBSA the opportunity to present the evidence they have against the two individuals, Alicia Shenandoah and Elaine April Thompson. 

In August of 2011, Shenandoah – who is a Mohawk/Onondaga from Akwesasne – was allegedly travelling to Cornwall from Akwesasne, and stopped at the A’nowara’kowa Arena on Kawehno:ke to drop her daughter off before travelling into Cornwall and reporting to CBSA. She was questioned and detained, and charged with two Customs Act offenses and one Immigration and Refugee Protection Act offense. Shenandoah’s case was selected as a test case because it serves as an example of the hardship community members endure to simply travel within their own community and attend community events.

Shenandoah’s case was also chosen because she represents many other Akwesasne residents who may be Mohawk, but aren’t status Indians or Canadian citizens according to the Canadian government. Canada insists that Mohawks show the Canadian-issued status card to prove their First Nations identity, despite Akwesasne’s unique international membership as a border community. In accordance with Canada's Indian Act, the Mohawks of Akwesasne have a right to determine their own membership and this right was acknowledged in the passage of Bill C-31 in 1985. However, it has resulted in "non-status" members who reside in both the northern and southern portions of Akwesasne who do not possess the CBSA-recognized travel documents to travel within their own community.  Canada has failed to acknowledge Akwesasne’s unique jurisdictional issues and unfairly assumes all First Nations communities are alike.

The second test case being heard this week was chosen as well for its representation of Akwesasne residents simply living their daily lives attending work, school, visiting family, or travelling within the community.  In November of 2011, Thompson was allegedly travelling from an Akwesasne district to her workplace in Cornwall, and stopped on Kawehno:ke to drop her daughter off with the girl’s father to catch the bus for school. Thompson continued on her way to work and reported to CBSA in Cornwall where she was questioned and subsequently charged with Aiding or Abetting Persons Coming Into Canada.

This week is the first phase of the trial, with the second phase scheduled to begin in the spring of 2014.  If the Crown is successful at proving its allegations against Shenandoah and Thompson during Phase 1, MCA’s attorney Gordon Scott Campbell will be calling evidence during Phase 2 to prove the constitutional violations of the cases.

“This case is among the first in Canada to directly raise issues of mobility within traditional territory as an Aboriginal right, treaty right and Charter right,” said Campbell.

Akwesasne community members are encouraged to show support for Shenandoah and Thompson as they endure the hardship of trial this week for the benefit of all Akwesasronon.

“Canada is reluctant to admit that Akwesasne’s situation is unique and therefore unique consideration must be given to allow our community members to simply live,” said Grand Chief Mike Kanentakeron Mitchell.  “Charging our members criminally for dropping children off to catch a school bus or watch a lacrosse game is absurd and is nothing more than another act of retaliation against our people by CBSA.”