Episode 6: The Test Case

Turns out, Derek’s not the first Mohawk to take a border crossing case to court. The last person who tried spent 15 years in the courts, and risked the rights of his entire community. His story now serves as a stark warning for anyone fighting for native rights.

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Episode Transcript

Speaker 1 (00:01):
Campsite media in Canada did something that would seem absolutely
insane to most Americans. They rewrote their Constitution. Until then,
Britain technically still had the power to make changes to
it whenever they wanted. But after the Constitution Act was passed,
Canada was finally in charge of its own affairs and

(00:24):
at last became a fully free, independent and sovereign nation.
The moment the Queen puts her signature on this document,
it becomes law. The Constitution is now hong Tucked away
in the Constitution Act was a bullet point under section
it reads, the existing Aboriginal and treaty rights of the

(00:45):
Aboriginal peoples of Canada are hereby recognized and affirmed. It
was one of the landmark achievements that Prime Minister Pierre
Trudeau brought up in a speech that day. We know
have a charger which defined the kind of country in
which we wish to live. Unguarantees the basic rights and

(01:06):
freedom which each of us shall enjoy as a citizen
of Canada. Unfortunately, Section five wasn't so cut and dry.
The Constitution recognized and affirmed all existing indigenous rights, but
it didn't exactly say which rights those were. Section five
was essentially a blank canvas in the middle of the

(01:27):
Canadian Constitution. Those blank spots would have to be filled
in by the courts. Indigenous people filed lawsuits or challenged rests,
mostly over things like fishing, hunting, and territorial rights, and slowly,
over the last forty years, that canvas has been filled in,
bit by bit a patchwork of legal battles that define
the bounds of what Native people in Canada can and

(01:49):
can't do. But there is one prominent issue that remains unresolved,
the legality of the tobacco trade, whether Native people can
buy and sell tobacco tax free. Derek hoped to be
the person who paints across that blank spot. I'm the
only one that's ever you know, tried to fight it.
I mean, that's one of the reasons why. One of

(02:09):
my my my lawyers told me, he said he worked
for the government, federal government for thirty years on exercise
and he said, uh, they the government always won every time,
every court case. So he said, basically, why are you
trying to do it as well? Yeah, but did anybody
ever fight it? And he said, no, you got a

(02:30):
point there, nobody ever fought it, so they always took
the deal. I said, well, I'm going to fight it
and see what happens. The worst. The worst can happen
is spend all kinds of money and get thrown in jail.
I'll not I'm not. I'm not gonna I'm not gonna
plead guilty to it though, that's for sure, because I'm
not guilty of doing anything. When Derek filed this constitutional challenge,

(02:55):
it had to go through a court review process, and
once the judge agreed to hear Derek's aregument, it meant
that his guilty verdict was put on pause. He wouldn't
go to prisoner have to pay a fine until his
constitutional challenge was finished, sort of like overtime for his
criminal trial. His constitutional case was slated to begin a
few months after the guilty verdict. So Derek got himself

(03:17):
the best Native rights lawyers that money could buy and
put them to work crafting a defense. My name is
Vincent Carney. I'm a lawyer at or the Entre sec
in Montreal. So our firm UH specializes in the defense

(03:37):
of Aboriginal nations or helping them achieve recognition for their rights.
Vincent is the junior lawyer on Derek's legal team. They
planned to make the case that as an Indigenous person,
Derek has a right to trade tobacco tax free. It
was a right that was protected by various treaties that
Mohawks had signed with the colonial government centuries earlier. That

(03:59):
right is called stitutionalized and would prevail over the statutory
framework that um that exists in Canada. And because of
those rights, those provisions are not applicable to them in
the circumstances of these proceedings. So the argument, as I
understand it, is that these laws should not apply because

(04:21):
they are Native and so therefore they did not commit
a crime. In simplified terms, Yes, that's accurate. So because
Section thirty five of the Canadian Constitution says that all
existing Aboriginal rights are recognized, that means that Derek and
Hunter's actions should be fully legal in the eyes of
the law. We didn't change the rules dated for Hunter Montour,

(04:47):
he was fighting the case alongside Derek. This is just
another case of Canada ignoring treaties and negotiations that already
answered these questions hundreds of years ago. There are rules
that were set up and agreements made prior to Canada,
prior to the United States, there were agreements made that

(05:08):
we honored, and we still follow We still followed him,
And it's like playing a game of cards with somebody
and they just decided we're going to change the rules
so they can win. Hunter believes that, of course Mohawks
have a right to free trade across the border. They
were doing it long before Canada even existed. This is
a cut and dry case. But whether the courts will

(05:28):
actually agree with him, he's not so sure. I don't
know what happens, and I don't nobody's ever been this far.
I think, as far as I know, nobody's been this far. Well,
that's not entirely true, because back in the nineteen eighties,
another Mohawk took border crossing issues all the way to
the Canadian Supreme Court and it became one of the
most famous Native rights cases of the twentieth century. It's

(05:50):
already been litigated on when one individual, Mike Mitchell case,
when he did it on his soul and there was
a grandstanding gesture. Doug George Canendio is a prominent Mohawk
journalists from Mike's community. Mike Mitchoke took it upon himself
to take goods across and his very symbolic Kylie Pablo
sized act. He thought he was going to be a
great savior. In a lot of ways, Derek was following

(06:13):
in Mike's footsteps. Even though Mike's case wasn't about tobacco,
it was a prime example of mohawk activism and how
the court system could be a powerful tool for Native rights.
But it was also a cautionary tale of what could
happen if things went wrong. It was a dumb case.
I never should have been argued before the court. What
Mike did it? Anyway? From Campsite Media and Damn Patrick Productions,

(06:42):
this is running Smoke, Pretty Black Act. I'm Roger Gola
and this is episode six, the test case of all
in the past. There's a documentary that came out back

(07:03):
in the nineteen sixties called You Are on Indian Land.
The film begins with a young man speaking for a
packed room of journalists and activists. He's wearing a black
blazer and a thick beaded belt around his neck. The
crowd is dead silent, hanging on his every word. We
don't want to be a Canadian citizen. We don't want

(07:24):
to be American cist. They taught us a long time
about that we were not American Indians like to day,
we feel this way too. The film documents of protest
held in the winter of nineteen when Mohawks from the
Agasas Mohawk Territory shut down the international bridge linking Canada
in the US across the St. Lawrence River. Their demand

(07:45):
was for both countries to recognize their right to cross
the border freely with groceries, clothes, and whatever else without
having to pay a customs tax. The world is looking
at it. The whole world is looking at us right
here and now. Are we going to give up? No?
Are we gonna fight until there's not one Indian left here.

(08:06):
Dozens of activists young and olds bundled up against the
harsh winter and took over the bridge early in the morning.
They blocked cars from passing in both directions and hands
it out flyers that said notice, this is an Indian reserve. Eventually,
Canadian police arrived with batons and began arresting the protesters.
One of the first to be arrested was the young
man with the beaded necklace, who went by the name

(08:29):
Mike Mitchell. So, my name is Michael Mitchell, and I'm
a Mohawk from Aquasas Mohawk Nation. I am from the
Wolf Clan and a faith keeper in a longhouse and

(08:49):
former Grand Chief of the Mahaw Council of Aquasasta. Last
year I met Mike for soup and cheesecake at a
restaurant just outside the Aguasas Mohawk Territory in Upstate New York.
Mike is now seventy one years old and retired from politics,
though he still garners immense respect for his tenure as
the Aquasas Grand Chief. I occupied that position for over

(09:11):
thirty years. His leadership was marked by the same activist
spirit he showed back in nineteen. It's the kind of
leadership that a place like Agasas demanded because it was
in a rather unique position. Half of the reservation of Aquasasna,
happy of it is in Canada and the other half

(09:32):
in the United States, and then the part that's in
Aquasasa on the Candy side, half of that is in Ontario,
and then the other halfs in the problems of Quebec.
There's five different jurisdictions over one community between two border agencies,
state cops, provincial cops, and federal cops from both sides.

(09:53):
Agasas was under a lot of pressure. It made life
complicated for everybody there. Most of the workforce where people
that work in the United States, and a good part
of the workforce were the iron workers. They'd go to
New York, Boston, Philadelphia, and New Jersey, etcetera. They come

(10:13):
home on weekends, the wives and the women would buy
their groceries and clothing in nearby Stars and upstate New York.
And it's hard to imagine that our daily lives were
affected by border of some kind, some authority, some government,

(10:34):
and it affected everybody. Decades after Mike's dramatic protests on
the bridge, little had changed in the everyday lives and
mohawks on the border. They were forced to submit to
vehicle searches, I D checks and had to pay customs
on the basic goods they needed for their everyday life
hours every day, we're just swallowed up waiting in long lines,

(10:55):
and hard earned dollars were paid to a system they
believed was unjust, and so the others as well. We
gotta make them listen. We're gonna let them know we're
very serious about protecting our right. We gotta fight for it.
We could lose everything. They could deny us all recognition
of indigenous right, border crossing. And the whole question was, well,

(11:19):
then the right to cross, the right to work, they're
right to go to school, uh, community goods. They were
kind of tired of their harassment. They said, let's let's
rather than more blockades, more people going to jail, let's
let's make a fight of it. Let's do the test case.

(11:40):
They decided to fight the border crossing laws in court.
It was a high stakes gamble for us. That's what
it meant. We should try to get a verdict and
have it reconfirmed that we have that right. Canada's idea
was once that's over and the order terments that they

(12:00):
have no rights, then we're back in control. Hold on,
we'll be right back. You're listening to your running smoke media.
Mike's plan was to stage a symbolic protest. He would
fill his pickup with basic goods and drive across the border.

(12:22):
When the border agents demanded that he paid taxes, he
would refuse, and once he got a ticket for breaking
the law, he can make his case in court. It
seemed pretty fool proof, and Mike got a lot of
support from the community. They took up a collection after
so many meetings and all and uh. They went to
a machine on New York and bought groceries. They bought

(12:44):
furniture and a refrigerator and a washing machine. They took
my truck loaded up with the groceries and the furniture.
There's a big piling and some of the women and
elders got on the truck and we walked there across
the border. Hundreds of people followed behind Mike's blue Chevy

(13:06):
square body in support of his protest. I came across,
got to the customers Canadian Customers compound and I declared
everything and they said, uh you oh um, four dollars
of duty dutiable attacks and I said, well, I'm not

(13:29):
paying because I am invulking my indigenous right. And that's
how it began. When Mike refused to pay, the tax
cops swarmed his truck. My performed with the RCMP. Would
you please talk to HIC before somebody gets hurted. I'm sorry,
but I can't stop. And I put everything back into
the truck and I surely drove away because there was.

(13:52):
You know, I've quite a lot of people around, and
they would not let me surrender or give it up.
As my tried to drive away, CBC news crews mobbed
his truck and caught the confrontation on cameras under Section
thirty one, Mike of the Customs Act, I'm arresting you.
Would you come with me please, part of the section
Article three summons in ninety four j Treaty. I have

(14:15):
rights to cross, and I'm going through your personal with
personal goods from lot of people. Mike kept on pushing
through the other side of the border. His mission was
to get all this stuff in his truck to the
Mohawk Reservation of Tyandanega, about seventy miles away. Cops followed
him the whole time, and he was worried that he
wouldn't actually make it all the way without getting pulled over.
So he radioed as people, so I don't think we're

(14:37):
gonna make it out of too far out of corn one,
and within five minutes a whole army of well fifty
trucks and cars. So Mandy got in front of our
caravan and others behind, and so day I escorted me
all the way to Tandanegat miles out. There was one

(14:58):
loan actually p Mono police. He pulled out. He pulled
across and he said, I know what he's that going,
and this is a right way to do it. You
know you're trying to pursue you on non violent way
to get your point across. He said, but I have
to deliver this charge and and that's just for all

(15:20):
the stuff thattch in your truck that came across the border.
He said, we're backing off. What show you in court?
Then he drove off. This is what the whole protest
was leading up to. He finally had a ticket that
stated the taxes. He owed it was a document he
could take to court, and a few months later he

(15:43):
got his chance to plead his community's case before judge.
His argument was based off the j Treaty, named after
John J who negotiated the deal back in. The treaty
was signed between the US and Great Britain after the
Revolutionary War and included a clause guaranteeing Native Americans the
right to free trade and free passage across the northern border. Canada, however,

(16:06):
says the treaty doesn't apply because it was signed before
their independence. Mike Mitchell told the judge about his people's
historical right and that borders did not apply to indigenous
people whose governments had been around for thousands of years
before colonists ever arrived on the continent. Much to Mike's surprise,
much to everyone's surprise, the judge agreed. The court essentially

(16:29):
recognized that all Native people across Canada from coast to coast,
have the right to cross the border without paying customs
or taxes. Mike had one big they're where cars haw
care and no hearts going back and forth. People were parading. Uh.
It probably was a very joyous I I did not

(16:51):
um man chesipate a decision like that, but I was
very happy. But Mike had been around long enough to
know that victories like this for Native communities we're going
to be short lived. I said, we told you we
went not as a test case, but we need to
go back for a great or certain today called it
and they got that. At the Court of Appeal, Mike

(17:16):
was told that the Canadian government would be appealing the decision.
He would have to defend Mohawk rights yet again to
judges are the same thing over again, and they reduced
that right, course of course, to all of Quebec, all
of Ontario, and all the New York State. The federal
appeals Court had overturned the first judge's decision and instead

(17:38):
limited the right to free border crossing to just the
Native people living in the traditional Mohawk homelands in the
eastern part of the country. It was a big blow,
but there wasn't a total defeat. Could we live with it, Yeah,
we could negotiate with But I started getting suspicious right
from there that something else is going to happen. They were,
they were freaked out. Mike had good reason to be

(18:00):
suspicious because during this time, there was a new industry
starting up in Mohawk territories, an industry that Canada saw
as a threat to their financial stability, contraband tobacco. We
didn't realize that, but this is a billion dollar industry.
So became a big topic in Canada, and that they're
big SENTI in Canada, which we're looking a lot of revenue.

(18:21):
Uh indigenous UH communities are making millions um on on
a tax free, gouty free. They said, um Indigenous people
could threaten the financial stability of Canada, the financial institutions
of the country, et cetera. They would freaking out. So

(18:41):
if the tobacco industry wasn't a factor, do you think
Canada would have comes to the negotiating table after first
when yeah, yeah, In the ends, mike suspicions were born out.
The prosecutors weren't happening with the outcome from the appeals court,
and they appealed once again, this time to the Supreme
Court of Canada. And my job, best grand chief, would

(19:04):
I say, well, we've got to keep fighting. You know,
we've got to persevere, you know, we we can't give up.
And the elders are saying the same thing. We'll get
into all that right after the break in two thousand one,
nearly fifteen years after Mike first crossed the bridge and
his pick up, the Supreme Court handed down its decision.

(19:27):
The Supreme Court decided uh that the Mohawks abaquiz us
it did not trade across the St. Lawrence River. To
this stage, there's seminars put on by lawyers trying to
figure out what the hell did Canada mean by that.

(19:47):
Nobody couldn't make sense of it. The Supreme Court decided
that Mohawks never had a right to cross the border.
According to the history that the government's experts presented, Mohawks
never traded north south across the St. Lawrence River, which
marks the US Canada border. Instead, they claimed, Mohawks conducted
their trade east to west above the St. Lawrence and

(20:08):
therefore they don't have a right to free passage across
the border. Today, you played again exactly the way they
laid it out. You get your decision, and then they
yanked back away. I lost all respect. I didn't think
I whatever. You left to see the day that it
was so blunt um that they weren't gonna let it happen.

(20:31):
The impact of the decision was felt across Canada. Immediately,
Customs police began enforcing border taxes with a new vigor,
and Indigenous advocates were crushed. The whole saga begged the
question of whether it was worth fighting the status quo.
If losing meant having your rights officially denied, What was
the effect of his loss? There? It was? It was bad.

(20:56):
Kenneth Dear is the founder of the Eastern Door newspaper
and a longtime commun Unity leader, and got a wag
game Mohawk territory. You know, first of all, he was
told don't do it, and but he wouldn't listen on
anyone ahead. A lot of people in the long house,
we're telling them not not to do it. Wow, because
of the risk losing, you know, and uh, which would

(21:17):
happened people were piste. I always say that you stay
out of courts. Don't go out of courts, stay stay
out of it. And and and sometimes we just get
shoot ourselves in the foot that way, you know. And uh,
as if courts don't mean anything to watch what they do.
It's easy to say that the courts don't matter to
Indigenous people. Their modern institutions trying to govern ancient societies.

(21:40):
They're made up of experts who aren't Native. Law is
imported from colonists and judges who aren't trained in Indigenous history.
But at the end of the day, the courts have
a very real impact on the lives of Indigenous people,
regardless of whether those decisions are considered legitimate. Steve Bonspiel,
editor of the Eastern Or newspaper, has what happens with

(22:00):
these sorts of cases time and time again. We have
to fight in a system that inherently has waited against us,
a country that inherently doesn't accept us, or even to
the worst point, hates us. And and we have no choice.
What are we gonna do? You know. So it's not
a surprise when people, you know, go and uh stand

(22:24):
up against the pipeline or block an entrance way or whatever, grassroots,
because there's no other way, you know. And and I
think that's the tough part is that this court system
is set up to serve certain people and it's not us,
you know. And that's the toughest part is you're fighting
against this um, this monster that has endless money and

(22:46):
endless resources. There's always that double standard of like, wait,
the manhawks are getting ahead, Okay, now, let's let's nail them. Well,
our people are getting ahead. No, that's fine, that's that's innovation,
that's that's you know, them evolving. The courts. Just asion
made it clear that this wasn't the place for Indigenous
people to affirm their rights. Canada would never give up
any of its sovereignty to make space for indigenous communities.

(23:08):
It forced indigenous advocates to ask themselves if they should
even bother doing things through the quote unquote proper channels
if the system was rigged against them in the first place.
Peggy Mayo stand Up is a former chief on the
Mohawk Council of Ganawage and one of Derek's expert witnesses
for the constitutional challenge. She's had a front row seat
to Derek's case since he first went to court on
criminal charges, and the way she sees it, Derek and

(23:31):
Hunter are fighting this thing the only way they can.
When you look across Canada, like all the cases that
have gone to courts, like land claims, every every kind
of case that you could think of, even with the
tax exemption regarding working on the outside but working for
native entity, all of that, all those challenges that haven't
done all the years back unemployment, and the list goes

(23:54):
on and on. Have we won a case? The answers, no,
we haven't. We haven't won anything major. I mean, then
what is the value of fighting any of these in
the court? Well, to me, there's no other way to
fight it. And what else you're gonna do. You're not
gonna have a war over it because we're not gonna win.
I mean, we're like you look at it as Indigenous
people across the country were like one percent of the population.

(24:17):
And I mean it's like when we have no chance
of we can take in our arrows out and okay,
we're gonna go to battle now with them. There's no
way we can do that. So there's only one way
to do it is in the courts, and have your
faith and trust that you're going to find some lawyer
who's going to be committed and dedicated and finding every
loophole and cover every loophole to get us to this court.

(24:38):
That's our only option. Hunter Montur, Derek's co accused, I'm
not gonna sit in, gonna wag in my whole life
because I don't want to turn myself in. I'm not
going to do that. So it is what it is.
What we're trying to take the fight wherever we can
take it. And then we'll see who's ready to keep
fighting and go on and who's who's really cut out

(24:59):
for this, and who is it who really wants to fight,
how far you want to go. It's not about standing
in the tree line and trying to scare policemen and
army guys. This is a this is the way things
are done now. This is the fight. I don't know
what's gonna happen. I mean if I if I win,
and when I do win, this it's business as usual

(25:23):
for everyone else. And if I lose, which I probably
ain't gonna lose, it's still it's gonna stay status school.
I mean, it's going to continue until a long time
after I'm did. You know. So it's just it's it's
our trade. I mean, it's not gonna die. It's not

(25:44):
going anywhere. The government just needs to understand that this
thing ain't gonna go away, even by finding if I'm
found guilty, which I won't, it's still going to continue.
We don't pay taxes were we are not people that

(26:09):
will follow to the Canadian laws or stuff like that.
I mean, we um, we're here. They stole all our
land and they're crying over a little bit of freaking
tobacco money. They could, you know what they that's what
they can do, give us our land back, plain and simple.

(26:30):
We're stuck and we're surrounded by all these outsiders, and
and they want to try to, you know, tell us
what to do. It ain't. It ain't gonna happen. Our
governments need to step up and say, okay, well let's
fight this as a as a whole, the whole Turtle Island,

(26:54):
every reserve or territory where Native people live. They need
to be stepping up and fighting this because it's a
it's a big deal. I mean, it's right to the
top right now. So it's where it's where it's supposed
to be. It's been wanted. People have been wanting this

(27:16):
for years, but I don't think they're ready to fight it.
And I am. I'm going to do it because I mean,
it's it's my life, it's my livelihood. I'm fighting this
right till, right till the end. Derek and Hunter were
gearing up for the fight of their lives against the

(27:36):
Canadian government, but before they even stepped foot in court,
they got a call from the Mohawk Nation Council of Chiefs,
the highest level of traditional government that oversees all eight
Mohawk territories. They were calling to make a simple demand.
They wanted Derek and Hunter to drop their case. They
were basically asking plead guilty and just take the eel

(28:00):
or whatever and not fight it. But we already had
it set that we're going to fight this. They just
didn't feel that it was my fight. It's kind of
a whole nation, like everybody's fight. So I said, now
it's the perfect time. I was pissed, and I told
him how I felt. I said, what are you doing here?

(28:23):
Who sent you? Because I don't know who the hell
these people are? And if you're not here to help,
what are you here for? Next time? On Running Smoke?
Middle Ground over there, either you're four or against, I said, well,
what the hell's the point of having these tools? If

(28:45):
we can't use them, when are you going to use them?
It was the Wild West and you're doing a hundred
hundred and ten and the car you're pursuing is throwing
beer bottles at you. They would ride around, and he
souped up cars and trucks with these weapons whose only
purpose was to kill with other human beings. Running Smokes

(29:09):
the production of Campsite Media, dan Patrick Productions, and Workhouse Media.
The series was written and reported by me Rogi Goa.
Our producers are Leah Papes, Blaine Gerbig, and Julie Dennischet.
Our editors are Michelle Lands and Emily Martinez. Sound designed
and original music by Mark McAdam, Additional sound and mixing
by Ewen Lye from Ewan additional reporting by Susie McCartney,

(29:31):
our executive producers or Dan Patrick, Josh Dean of Campside Media,
Paul Anderson, Nicknella, and Andrew Greenwood for Workhouse Media. Fact
checking by Mary Matthis and Angelia Mercado, artwork by Polly Adams,
and additional thanks to Greg Horne, Johnny Kaufman, Sierra Franco,
Elizabeth Van Brocklin, and Sean Flynn