04) JURISTS CONDEMN ATTACK ON INDIGENOUS GRANDMOTHERS

(The following article is from the August 1-31, 2008, issue of People's Voice, Canada's leading communist newspaper. Articles can be reprinted free if the source is credited. Subscription rates in Canada: $25/year, or $12 low income rate; for U.S. readers - $25 US per year; other overseas readers - $25 US or $35 CDN per year. Send to: People's Voice, c/o PV Business Manager, 133 Herkimer St., Unit 502, Hamilton, ON, L8P 2H3.)

The American Association of Jurists (AAJ), a non-governmental organisation with status at the United Nations Social and Economic Council (ECOSOC), has condemned the use of excessive force by the Canadian Border Services Agency against two Indigenous grandmothers.

     On June 14, two Kanion'ke:haka (Mohawk) women were attacked by CBSA guards at the Akwesasne port of entry between Canada and the US. Kahentenetha Horn (aged) 68 and Katenies (Janet Davis, 43) are grandmothers and the principal editors and managers of Mohawk Nation News http://www.mohawknationnews.com a popular internet site. The site was forced to stop normal operations after Kahentinetha suffered a trauma-induced heart attack during the attack.

     The incident began when violent procedures were used to arrest Katenies on questionable warrants arising from a charge in 2003, when she was accused of running that same border after she thought she had been waved through. Katenies questioned the jurisdiction of the Canadian court, and since then has faced a procedural morass.   Katenies lives in Akwesasne, a Mohawk settlement established in the 1740s straddling the Thousands Islands section of the St. Lawrence River, an area occupied by her ancestors since time immemorial. Both Canada and the United States routinely violate the territorial integrity of Akwesasne. Because of the borders imposed on them, the people of Akwesasne are forced to deal with the jurisdictional claims of both countries, as well as sub jurisdictions claimed by Ontario, Quebec and New York State. As a result, Katenies must travel from Akwesasne (Quebec), where she lives, via Akwesasne (N.Y.) and through Canadian border controls to visit her daughter and grandchildren who live a few minutes drive away in Akwesasne (Ontario). Katenies' daughter, Teiohontateh, had to abort a child because she was forced by CBSA to pass under a dangerous x-ray machine for trucks, when pregnant.

     In the 1920s, the Haudenosaunee Six Nations Confederacy (including Kanion'ke:haka/Mohawks) petitioned the League of Nations to protect their right to jurisdiction over their own land and people, but this issue has always been denied a hearing both within Canada and internationally. They never consented to become part of Canada or the United States or to the border later drawn through their community by the 1794 Jay Treaty between Great Britain and the United States. The Jay Treaty guaranteed the right of Indigenous peoples to travel and trade between Canada and the United States.

     As a successor state to Britain, Canadian law includes the well established "Honour of the Crown" doctrine reflected in such instruments as the Royal Proclamation of 1763, which oblige the state to protect Indigenous peoples. Section 35 of Canada's Constitution Act of 1982 also recognizes and affirms "existing aboriginal and treaty rights."

     Border charges against Akwesasne residents have escalated since 2001, when Canada's Supreme Court decided in Mitchell v. the Minister of National Revenue that the people of Akwesasne do not have a right to trade freely within their community across the border.

     Canadian courts have consistently refused to prove their jurisdiction when Indigenous people question their authority. In December 2007, Lester Howse, aged 64, was hospitalized because he was brutalized by three Brantford Ontario police after he was expelled from a courtroom where he had questioned the jurisdiction of a Justice of the Peace to try a Six Nations man.

     The AAJ warns that "These incidents suggest a pattern of violence to intimidate Indigenous people and avoid legal consideration of the jurisdictional issues they raise... Canada's shameful refusal to sign the United Nations Declaration on the Rights of Indigenous People reflects its refusal to recognize and respect the Indigenous Nations, contrary to the recommendations of both the United Nations and Canada's own 1996 Royal Commission on Aboriginal Peoples."

     The AAJ has called on the Canadian government to refrain from using force to resolve legal issues, to respect the human rights guaranteed by the international treaties and accords that it has signed, and to respect the terms of the Jay Treaty and the Constitution Act of 1982. The AAJ also urges a full investigation into the police and Border Service assaults, and a negotiated alternative to border controls that interfere with normal rights to privacy, home, family and community life of Indigenous people.