Treaty sets out border trade rights

MONTREAL — Don’t call it smuggling.

It’s a familiar refrain from the Mohawk vendors who sneak millions of  cigarettes into Canada from the United States each year. The Mohawks insist  they’re just taking the tobacco from one end of their backyard to the other.

They say the fact that an international border happens to pass through that  yard is simply a matter of opinion.

“We’ve lived on both sides of the border for hundreds of years,” said Mike  Delisle, grand chief of the Mohawk Council of Kahnawake. “Many of our  ironworkers live in Kahnawake with their families during the weekend and work in  New York during the week. It’s a right that was recognized in writing over 200  years ago.”

Before there was such a thing as Canadians or Americans, there were Mohawks.  For hundreds of years, the First Nation lived in a territory that extends from  the St-Lawrence Valley in Quebec, through Vermont’s Green Mountains and into the  flatlands of New York, where the Mohawk River flows into the Hudson. The Mohawk  nation also stretched well beyond Toronto and into southwestern Ontario.

In fact, the aboriginals’ right to freely live, travel and trade on either  side of the border was enshrined into law in the 1794 Jay Treaty — a document  signed by the newly created U.S. government and the British Crown.

“Because there were so many dozens of First Nations that were sliced in half  by what became the Canada-U.S. border, there had to be some sort of law  governing that,” said Karl Hele, the head of Concordia University’s First  Peoples program. “The Jay Treaty basically recognizes the inherent right  aboriginal peoples have to live in their own territory. So while it may seem  like the Mohawks are smuggling, they’re just taking goods from one end of their  territory to the other.”

In a sense, this explains why the majority of native cigarettes are smuggled  into Canada through the Akwesasne Mohawk reserve. Because Akwesasne stretches  from western Quebec into Ontario and New York, Mohawks can claim they’re  respecting the Jay Treaty by bootlegging smokes across the St. Lawrence River  and into Canada from the New York side of Akwesasne.

But the federal government doesn’t leave that sort of activity up to  interpretation. Secretly taking cigarettes from a reserve in upstate New York to  Canada is smuggling, plain and simple. Proponents of the government’s position  claim the Jay Treaty was nullified after war broke out between Great Britain and  the U.S. in 1812.

Canada’s Public Safety Minister Vic Toews said the trade of illicit  cigarettes is actually a Trojan horse for much more dangerous illegal  trafficking.

“Contraband tobacco fuels the growth of organized criminal networks,  contributing to the increased availability of illegal drugs and guns in our  communities,” Toews said at a news conference in March.

The largely unregulated industry also makes it easier for minors to get their  hands on cigarettes, according to Toews.

RCMP reports claim the so-called contraband tobacco market fuels the war  chests of criminal organizations like the Hells Angels and other gangs — who  allegedly work alongside aboriginals to import, sell and distribute cigarettes  across the country.

“Of course, there are some criminal elements, but those are a minority,” said  Serge Simon, chief of the Kanesatake Mohawk territory and a longtime vendor who  has ceded operation of his cigarette shops to his family. “If you don’t think  you’re making enough money with cigarettes and you feel you need to sell guns or  drugs on the side, you’re just being greedy and reckless. When I ran my  business, I would cut ties with anyone who I knew sold dope on the side. It  happened to me a few times.”

Like many of the government’s critics, Simon said he believes the feds are  cracking down on native tobacco because it accounts for millions in lost tax  revenue each year.

“It’s purely a taxation issue,” Hele told The Gazette. “Well, taxation and a  government that wants aboriginals to know they aren’t sovereign and that Ottawa  calls the shots.”

The majority of smokers who buy from aboriginal distributors are non-native.  Because aboriginals have the legal right to produce and sell each other  cigarettes tax-free, the finished product retails for about $20 per carton (or  about one-third the price of a carton of brand name cigarettes).

“It’s no coincidence that the aboriginal tobacco industry took off in the  1980s, at a time when cigarettes became so heavily taxed,” Hele said. “By  punishing the tobacco industry with sin taxes, the government inadvertently  created a market for aboriginal vendors.”

Despite the Mohawks’ tobacco rights, it’s illegal for them to sell untaxed  cigarettes to non-aboriginal consumers. It’s a legal issue that falls mainly  under provincial jurisdiction and has caused revenue agencies to clamp down on  non-aboriginals caught buying or distributing illicit tobacco.

During the last four months, Revenue Quebec has handed down more than $4  million in fines for the sale of native tobacco off reserves. In the worst  cases, offenders were given 30 days to pay fines exceeding of $100,000 or they  would face a jail sentence of up to one year.