WEBVTT - Episode 6: The Test Case 0:00:01.920 --> 0:00:08.960 Campsite media in Canada did something that would seem absolutely 0:00:09.000 --> 0:00:14.280 insane to most Americans. They rewrote their Constitution. Until then, 0:00:14.360 --> 0:00:16.680 Britain technically still had the power to make changes to 0:00:16.760 --> 0:00:21.119 it whenever they wanted. But after the Constitution Act was passed, 0:00:21.520 --> 0:00:24.400 Canada was finally in charge of its own affairs and 0:00:24.440 --> 0:00:28.440 at last became a fully free, independent and sovereign nation. 0:00:28.680 --> 0:00:31.760 The moment the Queen puts her signature on this document, 0:00:31.880 --> 0:00:38.360 it becomes law. The Constitution is now hong Tucked away 0:00:38.360 --> 0:00:40.720 in the Constitution Act was a bullet point under section 0:00:42.000 --> 0:00:45.400 it reads, the existing Aboriginal and treaty rights of the 0:00:45.440 --> 0:00:49.959 Aboriginal peoples of Canada are hereby recognized and affirmed. It 0:00:50.000 --> 0:00:52.840 was one of the landmark achievements that Prime Minister Pierre 0:00:52.840 --> 0:00:55.400 Trudeau brought up in a speech that day. We know 0:00:55.760 --> 0:01:00.840 have a charger which defined the kind of country in 0:01:00.920 --> 0:01:05.959 which we wish to live. Unguarantees the basic rights and 0:01:06.120 --> 0:01:11.000 freedom which each of us shall enjoy as a citizen 0:01:11.440 --> 0:01:16.440 of Canada. Unfortunately, Section five wasn't so cut and dry. 0:01:16.600 --> 0:01:21.240 The Constitution recognized and affirmed all existing indigenous rights, but 0:01:21.480 --> 0:01:25.080 it didn't exactly say which rights those were. Section five 0:01:25.160 --> 0:01:27.480 was essentially a blank canvas in the middle of the 0:01:27.480 --> 0:01:30.679 Canadian Constitution. Those blank spots would have to be filled 0:01:30.720 --> 0:01:35.200 in by the courts. Indigenous people filed lawsuits or challenged rests, 0:01:35.440 --> 0:01:39.600 mostly over things like fishing, hunting, and territorial rights, and slowly, 0:01:39.640 --> 0:01:42.600 over the last forty years, that canvas has been filled in, 0:01:42.720 --> 0:01:45.880 bit by bit a patchwork of legal battles that define 0:01:45.959 --> 0:01:49.000 the bounds of what Native people in Canada can and 0:01:49.080 --> 0:01:53.240 can't do. But there is one prominent issue that remains unresolved, 0:01:53.840 --> 0:01:57.160 the legality of the tobacco trade, whether Native people can 0:01:57.200 --> 0:02:00.880 buy and sell tobacco tax free. Derek hoped to be 0:02:00.920 --> 0:02:04.400 the person who paints across that blank spot. I'm the 0:02:04.440 --> 0:02:07.760 only one that's ever you know, tried to fight it. 0:02:08.200 --> 0:02:09.920 I mean, that's one of the reasons why. One of 0:02:09.960 --> 0:02:12.680 my my my lawyers told me, he said he worked 0:02:12.720 --> 0:02:16.679 for the government, federal government for thirty years on exercise 0:02:16.760 --> 0:02:21.800 and he said, uh, they the government always won every time, 0:02:21.840 --> 0:02:26.440 every court case. So he said, basically, why are you 0:02:26.440 --> 0:02:28.640 trying to do it as well? Yeah, but did anybody 0:02:28.680 --> 0:02:30.359 ever fight it? And he said, no, you got a 0:02:30.440 --> 0:02:33.160 point there, nobody ever fought it, so they always took 0:02:33.200 --> 0:02:35.640 the deal. I said, well, I'm going to fight it 0:02:35.800 --> 0:02:39.720 and see what happens. The worst. The worst can happen 0:02:39.840 --> 0:02:44.080 is spend all kinds of money and get thrown in jail. 0:02:45.160 --> 0:02:47.320 I'll not I'm not. I'm not gonna I'm not gonna 0:02:47.360 --> 0:02:49.280 plead guilty to it though, that's for sure, because I'm 0:02:49.280 --> 0:02:55.240 not guilty of doing anything. When Derek filed this constitutional challenge, 0:02:55.400 --> 0:02:57.800 it had to go through a court review process, and 0:02:57.880 --> 0:03:01.040 once the judge agreed to hear Derek's aregument, it meant 0:03:01.120 --> 0:03:04.480 that his guilty verdict was put on pause. He wouldn't 0:03:04.480 --> 0:03:06.320 go to prisoner have to pay a fine until his 0:03:06.360 --> 0:03:10.160 constitutional challenge was finished, sort of like overtime for his 0:03:10.160 --> 0:03:13.360 criminal trial. His constitutional case was slated to begin a 0:03:13.360 --> 0:03:17.000 few months after the guilty verdict. So Derek got himself 0:03:17.080 --> 0:03:19.520 the best Native rights lawyers that money could buy and 0:03:19.560 --> 0:03:25.440 put them to work crafting a defense. My name is 0:03:25.560 --> 0:03:30.119 Vincent Carney. I'm a lawyer at or the Entre sec 0:03:30.320 --> 0:03:36.880 in Montreal. So our firm UH specializes in the defense 0:03:37.320 --> 0:03:42.680 of Aboriginal nations or helping them achieve recognition for their rights. 0:03:43.360 --> 0:03:46.520 Vincent is the junior lawyer on Derek's legal team. They 0:03:46.520 --> 0:03:49.080 planned to make the case that as an Indigenous person, 0:03:49.560 --> 0:03:53.120 Derek has a right to trade tobacco tax free. It 0:03:53.200 --> 0:03:55.440 was a right that was protected by various treaties that 0:03:55.480 --> 0:03:58.840 Mohawks had signed with the colonial government centuries earlier. That 0:03:59.040 --> 0:04:06.160 right is called stitutionalized and would prevail over the statutory 0:04:06.160 --> 0:04:09.560 framework that um that exists in Canada. And because of 0:04:09.560 --> 0:04:13.080 those rights, those provisions are not applicable to them in 0:04:13.080 --> 0:04:16.760 the circumstances of these proceedings. So the argument, as I 0:04:16.839 --> 0:04:21.800 understand it, is that these laws should not apply because 0:04:21.880 --> 0:04:27.360 they are Native and so therefore they did not commit 0:04:27.400 --> 0:04:31.599 a crime. In simplified terms, Yes, that's accurate. So because 0:04:31.600 --> 0:04:34.599 Section thirty five of the Canadian Constitution says that all 0:04:34.720 --> 0:04:38.680 existing Aboriginal rights are recognized, that means that Derek and 0:04:38.760 --> 0:04:41.760 Hunter's actions should be fully legal in the eyes of 0:04:41.760 --> 0:04:47.359 the law. We didn't change the rules dated for Hunter Montour, 0:04:47.520 --> 0:04:49.919 he was fighting the case alongside Derek. This is just 0:04:50.000 --> 0:04:53.520 another case of Canada ignoring treaties and negotiations that already 0:04:53.520 --> 0:04:57.520 answered these questions hundreds of years ago. There are rules 0:04:57.600 --> 0:05:05.119 that were set up and agreements made prior to Canada, 0:05:05.160 --> 0:05:08.039 prior to the United States, there were agreements made that 0:05:08.080 --> 0:05:12.360 we honored, and we still follow We still followed him, 0:05:12.400 --> 0:05:14.359 And it's like playing a game of cards with somebody 0:05:14.360 --> 0:05:15.960 and they just decided we're going to change the rules 0:05:16.000 --> 0:05:19.880 so they can win. Hunter believes that, of course Mohawks 0:05:19.920 --> 0:05:22.360 have a right to free trade across the border. They 0:05:22.360 --> 0:05:25.240 were doing it long before Canada even existed. This is 0:05:25.240 --> 0:05:28.160 a cut and dry case. But whether the courts will 0:05:28.160 --> 0:05:31.440 actually agree with him, he's not so sure. I don't 0:05:31.440 --> 0:05:34.760 know what happens, and I don't nobody's ever been this far. 0:05:34.839 --> 0:05:38.200 I think, as far as I know, nobody's been this far. Well, 0:05:38.240 --> 0:05:41.120 that's not entirely true, because back in the nineteen eighties, 0:05:41.320 --> 0:05:44.200 another Mohawk took border crossing issues all the way to 0:05:44.240 --> 0:05:47.159 the Canadian Supreme Court and it became one of the 0:05:47.160 --> 0:05:50.880 most famous Native rights cases of the twentieth century. It's 0:05:50.920 --> 0:05:54.840 already been litigated on when one individual, Mike Mitchell case, 0:05:54.880 --> 0:05:56.200 when he did it on his soul and there was 0:05:56.240 --> 0:06:00.400 a grandstanding gesture. Doug George Canendio is a prominent Mohawk 0:06:00.480 --> 0:06:03.960 journalists from Mike's community. Mike Mitchoke took it upon himself 0:06:04.520 --> 0:06:07.880 to take goods across and his very symbolic Kylie Pablo 0:06:07.960 --> 0:06:10.159 sized act. He thought he was going to be a 0:06:10.160 --> 0:06:13.280 great savior. In a lot of ways, Derek was following 0:06:13.279 --> 0:06:16.839 in Mike's footsteps. Even though Mike's case wasn't about tobacco, 0:06:17.279 --> 0:06:20.360 it was a prime example of mohawk activism and how 0:06:20.360 --> 0:06:22.920 the court system could be a powerful tool for Native rights. 0:06:23.640 --> 0:06:26.039 But it was also a cautionary tale of what could 0:06:26.040 --> 0:06:28.479 happen if things went wrong. It was a dumb case. 0:06:28.560 --> 0:06:31.800 I never should have been argued before the court. What 0:06:32.360 --> 0:06:42.120 Mike did it? Anyway? From Campsite Media and Damn Patrick Productions, 0:06:42.160 --> 0:06:54.559 this is running Smoke, Pretty Black Act. I'm Roger Gola 0:06:54.760 --> 0:06:59.960 and this is episode six, the test case of all 0:07:00.440 --> 0:07:03.000 in the past. There's a documentary that came out back 0:07:03.040 --> 0:07:06.640 in the nineteen sixties called You Are on Indian Land. 0:07:07.480 --> 0:07:09.800 The film begins with a young man speaking for a 0:07:09.840 --> 0:07:13.400 packed room of journalists and activists. He's wearing a black 0:07:13.440 --> 0:07:16.400 blazer and a thick beaded belt around his neck. The 0:07:16.400 --> 0:07:19.760 crowd is dead silent, hanging on his every word. We 0:07:19.840 --> 0:07:24.400 don't want to be a Canadian citizen. We don't want 0:07:24.440 --> 0:07:27.560 to be American cist. They taught us a long time 0:07:27.600 --> 0:07:30.800 about that we were not American Indians like to day, 0:07:30.840 --> 0:07:33.680 we feel this way too. The film documents of protest 0:07:33.760 --> 0:07:36.840 held in the winter of nineteen when Mohawks from the 0:07:36.840 --> 0:07:41.200 Agasas Mohawk Territory shut down the international bridge linking Canada 0:07:41.280 --> 0:07:44.800 in the US across the St. Lawrence River. Their demand 0:07:45.000 --> 0:07:47.640 was for both countries to recognize their right to cross 0:07:47.680 --> 0:07:51.920 the border freely with groceries, clothes, and whatever else without 0:07:52.000 --> 0:07:54.760 having to pay a customs tax. The world is looking 0:07:54.800 --> 0:07:57.440 at it. The whole world is looking at us right 0:07:57.440 --> 0:08:00.520 here and now. Are we going to give up? No? 0:08:03.440 --> 0:08:06.000 Are we gonna fight until there's not one Indian left here. 0:08:06.760 --> 0:08:09.520 Dozens of activists young and olds bundled up against the 0:08:09.520 --> 0:08:12.000 harsh winter and took over the bridge early in the morning. 0:08:12.400 --> 0:08:15.000 They blocked cars from passing in both directions and hands 0:08:15.000 --> 0:08:19.760 it out flyers that said notice, this is an Indian reserve. Eventually, 0:08:19.800 --> 0:08:23.320 Canadian police arrived with batons and began arresting the protesters. 0:08:24.080 --> 0:08:26.280 One of the first to be arrested was the young 0:08:26.320 --> 0:08:28.800 man with the beaded necklace, who went by the name 0:08:29.320 --> 0:08:39.520 Mike Mitchell. So, my name is Michael Mitchell, and I'm 0:08:39.559 --> 0:08:44.120 a Mohawk from Aquasas Mohawk Nation. I am from the 0:08:44.120 --> 0:08:48.360 Wolf Clan and a faith keeper in a longhouse and 0:08:49.640 --> 0:08:53.880 former Grand Chief of the Mahaw Council of Aquasasta. Last 0:08:53.920 --> 0:08:56.080 year I met Mike for soup and cheesecake at a 0:08:56.120 --> 0:09:00.120 restaurant just outside the Aguasas Mohawk Territory in Upstate New York. 0:09:01.000 --> 0:09:04.080 Mike is now seventy one years old and retired from politics, 0:09:04.480 --> 0:09:07.360 though he still garners immense respect for his tenure as 0:09:07.400 --> 0:09:11.400 the Aquasas Grand Chief. I occupied that position for over 0:09:11.440 --> 0:09:14.640 thirty years. His leadership was marked by the same activist 0:09:14.640 --> 0:09:17.600 spirit he showed back in nineteen. It's the kind of 0:09:17.679 --> 0:09:21.319 leadership that a place like Agasas demanded because it was 0:09:21.360 --> 0:09:27.959 in a rather unique position. Half of the reservation of Aquasasna, 0:09:29.040 --> 0:09:32.160 happy of it is in Canada and the other half 0:09:32.240 --> 0:09:35.599 in the United States, and then the part that's in 0:09:35.600 --> 0:09:38.280 Aquasasa on the Candy side, half of that is in Ontario, 0:09:38.520 --> 0:09:40.679 and then the other halfs in the problems of Quebec. 0:09:41.800 --> 0:09:49.319 There's five different jurisdictions over one community between two border agencies, 0:09:49.480 --> 0:09:53.000 state cops, provincial cops, and federal cops from both sides. 0:09:53.559 --> 0:09:56.600 Agasas was under a lot of pressure. It made life 0:09:56.640 --> 0:10:01.079 complicated for everybody there. Most of the workforce where people 0:10:01.080 --> 0:10:05.600 that work in the United States, and a good part 0:10:05.640 --> 0:10:09.200 of the workforce were the iron workers. They'd go to 0:10:09.240 --> 0:10:13.679 New York, Boston, Philadelphia, and New Jersey, etcetera. They come 0:10:13.679 --> 0:10:17.400 home on weekends, the wives and the women would buy 0:10:17.400 --> 0:10:23.760 their groceries and clothing in nearby Stars and upstate New York. 0:10:24.440 --> 0:10:30.160 And it's hard to imagine that our daily lives were 0:10:30.200 --> 0:10:33.960 affected by border of some kind, some authority, some government, 0:10:34.679 --> 0:10:40.080 and it affected everybody. Decades after Mike's dramatic protests on 0:10:40.080 --> 0:10:42.760 the bridge, little had changed in the everyday lives and 0:10:42.800 --> 0:10:45.400 mohawks on the border. They were forced to submit to 0:10:45.520 --> 0:10:48.800 vehicle searches, I D checks and had to pay customs 0:10:48.800 --> 0:10:51.160 on the basic goods they needed for their everyday life 0:10:52.040 --> 0:10:54.920 hours every day, we're just swallowed up waiting in long lines, 0:10:55.640 --> 0:10:57.920 and hard earned dollars were paid to a system they 0:10:57.960 --> 0:11:02.199 believed was unjust, and so the others as well. We 0:11:02.360 --> 0:11:05.440 gotta make them listen. We're gonna let them know we're 0:11:05.559 --> 0:11:09.480 very serious about protecting our right. We gotta fight for it. 0:11:10.040 --> 0:11:13.319 We could lose everything. They could deny us all recognition 0:11:13.360 --> 0:11:19.880 of indigenous right, border crossing. And the whole question was, well, 0:11:19.960 --> 0:11:22.079 then the right to cross, the right to work, they're 0:11:22.120 --> 0:11:25.520 right to go to school, uh, community goods. They were 0:11:25.600 --> 0:11:29.480 kind of tired of their harassment. They said, let's let's 0:11:29.679 --> 0:11:33.000 rather than more blockades, more people going to jail, let's 0:11:33.120 --> 0:11:37.679 let's make a fight of it. Let's do the test case. 0:11:40.679 --> 0:11:43.680 They decided to fight the border crossing laws in court. 0:11:44.320 --> 0:11:47.040 It was a high stakes gamble for us. That's what 0:11:47.120 --> 0:11:50.559 it meant. We should try to get a verdict and 0:11:50.920 --> 0:11:55.280 have it reconfirmed that we have that right. Canada's idea 0:11:55.480 --> 0:12:00.960 was once that's over and the order terments that they 0:12:00.960 --> 0:12:07.520 have no rights, then we're back in control. Hold on, 0:12:07.559 --> 0:12:13.439 we'll be right back. You're listening to your running smoke media. 0:12:15.360 --> 0:12:18.840 Mike's plan was to stage a symbolic protest. He would 0:12:18.880 --> 0:12:21.640 fill his pickup with basic goods and drive across the border. 0:12:22.559 --> 0:12:25.080 When the border agents demanded that he paid taxes, he 0:12:25.120 --> 0:12:28.200 would refuse, and once he got a ticket for breaking 0:12:28.200 --> 0:12:31.360 the law, he can make his case in court. It 0:12:31.400 --> 0:12:33.839 seemed pretty fool proof, and Mike got a lot of 0:12:33.840 --> 0:12:38.920 support from the community. They took up a collection after 0:12:38.960 --> 0:12:41.679 so many meetings and all and uh. They went to 0:12:41.720 --> 0:12:44.560 a machine on New York and bought groceries. They bought 0:12:44.600 --> 0:12:50.400 furniture and a refrigerator and a washing machine. They took 0:12:50.480 --> 0:12:54.280 my truck loaded up with the groceries and the furniture. 0:12:54.320 --> 0:12:57.400 There's a big piling and some of the women and 0:12:57.480 --> 0:13:00.640 elders got on the truck and we walked there across 0:13:00.679 --> 0:13:06.120 the border. Hundreds of people followed behind Mike's blue Chevy 0:13:06.160 --> 0:13:09.240 square body in support of his protest. I came across, 0:13:09.480 --> 0:13:15.640 got to the customers Canadian Customers compound and I declared 0:13:15.679 --> 0:13:22.600 everything and they said, uh you oh um, four dollars 0:13:23.600 --> 0:13:29.600 of duty dutiable attacks and I said, well, I'm not 0:13:29.640 --> 0:13:34.800 paying because I am invulking my indigenous right. And that's 0:13:34.800 --> 0:13:37.560 how it began. When Mike refused to pay, the tax 0:13:37.880 --> 0:13:40.680 cops swarmed his truck. My performed with the RCMP. Would 0:13:40.679 --> 0:13:44.880 you please talk to HIC before somebody gets hurted. I'm sorry, 0:13:44.880 --> 0:13:47.880 but I can't stop. And I put everything back into 0:13:47.920 --> 0:13:51.480 the truck and I surely drove away because there was. 0:13:52.720 --> 0:13:56.080 You know, I've quite a lot of people around, and 0:13:56.120 --> 0:13:59.120 they would not let me surrender or give it up. 0:13:59.640 --> 0:14:02.840 As my tried to drive away, CBC news crews mobbed 0:14:02.840 --> 0:14:06.200 his truck and caught the confrontation on cameras under Section 0:14:06.280 --> 0:14:08.480 thirty one, Mike of the Customs Act, I'm arresting you. 0:14:09.240 --> 0:14:11.440 Would you come with me please, part of the section 0:14:11.760 --> 0:14:14.840 Article three summons in ninety four j Treaty. I have 0:14:15.000 --> 0:14:18.000 rights to cross, and I'm going through your personal with 0:14:18.120 --> 0:14:21.000 personal goods from lot of people. Mike kept on pushing 0:14:21.000 --> 0:14:23.120 through the other side of the border. His mission was 0:14:23.160 --> 0:14:24.600 to get all this stuff in his truck to the 0:14:24.600 --> 0:14:29.720 Mohawk Reservation of Tyandanega, about seventy miles away. Cops followed 0:14:29.760 --> 0:14:31.760 him the whole time, and he was worried that he 0:14:31.800 --> 0:14:33.960 wouldn't actually make it all the way without getting pulled over. 0:14:34.680 --> 0:14:37.400 So he radioed as people, so I don't think we're 0:14:37.400 --> 0:14:40.040 gonna make it out of too far out of corn one, 0:14:41.200 --> 0:14:44.520 and within five minutes a whole army of well fifty 0:14:44.760 --> 0:14:47.960 trucks and cars. So Mandy got in front of our 0:14:48.040 --> 0:14:52.560 caravan and others behind, and so day I escorted me 0:14:52.720 --> 0:14:57.560 all the way to Tandanegat miles out. There was one 0:14:58.160 --> 0:15:03.520 loan actually p Mono police. He pulled out. He pulled 0:15:03.520 --> 0:15:06.840 across and he said, I know what he's that going, 0:15:07.040 --> 0:15:08.920 and this is a right way to do it. You 0:15:08.960 --> 0:15:13.040 know you're trying to pursue you on non violent way 0:15:13.160 --> 0:15:16.320 to get your point across. He said, but I have 0:15:16.400 --> 0:15:20.720 to deliver this charge and and that's just for all 0:15:20.840 --> 0:15:24.480 the stuff thattch in your truck that came across the border. 0:15:25.280 --> 0:15:28.560 He said, we're backing off. What show you in court? 0:15:29.160 --> 0:15:35.120 Then he drove off. This is what the whole protest 0:15:35.200 --> 0:15:37.560 was leading up to. He finally had a ticket that 0:15:37.640 --> 0:15:40.240 stated the taxes. He owed it was a document he 0:15:40.240 --> 0:15:43.000 could take to court, and a few months later he 0:15:43.080 --> 0:15:45.840 got his chance to plead his community's case before judge. 0:15:46.600 --> 0:15:49.560 His argument was based off the j Treaty, named after 0:15:49.640 --> 0:15:54.040 John J who negotiated the deal back in. The treaty 0:15:54.120 --> 0:15:56.440 was signed between the US and Great Britain after the 0:15:56.480 --> 0:16:00.640 Revolutionary War and included a clause guaranteeing Native Americans the 0:16:00.760 --> 0:16:05.920 right to free trade and free passage across the northern border. Canada, however, 0:16:06.280 --> 0:16:09.280 says the treaty doesn't apply because it was signed before 0:16:09.280 --> 0:16:13.280 their independence. Mike Mitchell told the judge about his people's 0:16:13.320 --> 0:16:16.680 historical right and that borders did not apply to indigenous 0:16:16.720 --> 0:16:19.320 people whose governments had been around for thousands of years 0:16:19.320 --> 0:16:23.560 before colonists ever arrived on the continent. Much to Mike's surprise, 0:16:23.720 --> 0:16:29.040 much to everyone's surprise, the judge agreed. The court essentially 0:16:29.080 --> 0:16:32.560 recognized that all Native people across Canada from coast to coast, 0:16:32.840 --> 0:16:35.680 have the right to cross the border without paying customs 0:16:35.800 --> 0:16:41.320 or taxes. Mike had one big they're where cars haw 0:16:41.360 --> 0:16:47.160 care and no hearts going back and forth. People were parading. Uh. 0:16:48.120 --> 0:16:50.960 It probably was a very joyous I I did not 0:16:51.280 --> 0:16:56.560 um man chesipate a decision like that, but I was 0:16:56.680 --> 0:16:59.920 very happy. But Mike had been around long enough to 0:17:00.040 --> 0:17:02.840 know that victories like this for Native communities we're going 0:17:02.920 --> 0:17:05.399 to be short lived. I said, we told you we 0:17:05.400 --> 0:17:07.359 went not as a test case, but we need to 0:17:07.359 --> 0:17:10.200 go back for a great or certain today called it 0:17:11.160 --> 0:17:16.120 and they got that. At the Court of Appeal, Mike 0:17:16.200 --> 0:17:19.000 was told that the Canadian government would be appealing the decision. 0:17:19.640 --> 0:17:22.159 He would have to defend Mohawk rights yet again to 0:17:22.440 --> 0:17:26.320 judges are the same thing over again, and they reduced 0:17:26.359 --> 0:17:29.320 that right, course of course, to all of Quebec, all 0:17:29.359 --> 0:17:34.080 of Ontario, and all the New York State. The federal 0:17:34.080 --> 0:17:37.880 appeals Court had overturned the first judge's decision and instead 0:17:38.040 --> 0:17:40.639 limited the right to free border crossing to just the 0:17:40.720 --> 0:17:43.679 Native people living in the traditional Mohawk homelands in the 0:17:43.720 --> 0:17:46.640 eastern part of the country. It was a big blow, 0:17:46.840 --> 0:17:50.680 but there wasn't a total defeat. Could we live with it, Yeah, 0:17:50.760 --> 0:17:54.840 we could negotiate with But I started getting suspicious right 0:17:54.880 --> 0:17:57.760 from there that something else is going to happen. They were, 0:17:57.960 --> 0:18:00.399 they were freaked out. Mike had good reason to be 0:18:00.440 --> 0:18:03.480 suspicious because during this time, there was a new industry 0:18:03.480 --> 0:18:06.880 starting up in Mohawk territories, an industry that Canada saw 0:18:06.920 --> 0:18:11.399 as a threat to their financial stability, contraband tobacco. We 0:18:11.440 --> 0:18:14.040 didn't realize that, but this is a billion dollar industry. 0:18:14.680 --> 0:18:17.600 So became a big topic in Canada, and that they're 0:18:17.800 --> 0:18:20.240 big SENTI in Canada, which we're looking a lot of revenue. 0:18:21.000 --> 0:18:26.399 Uh indigenous UH communities are making millions um on on 0:18:26.520 --> 0:18:33.000 a tax free, gouty free. They said, um Indigenous people 0:18:33.000 --> 0:18:38.400 could threaten the financial stability of Canada, the financial institutions 0:18:38.400 --> 0:18:40.800 of the country, et cetera. They would freaking out. So 0:18:41.240 --> 0:18:43.920 if the tobacco industry wasn't a factor, do you think 0:18:43.960 --> 0:18:46.520 Canada would have comes to the negotiating table after first 0:18:46.920 --> 0:18:52.840 when yeah, yeah, In the ends, mike suspicions were born out. 0:18:53.520 --> 0:18:56.320 The prosecutors weren't happening with the outcome from the appeals court, 0:18:56.760 --> 0:19:00.720 and they appealed once again, this time to the Supreme 0:19:00.720 --> 0:19:04.200 Court of Canada. And my job, best grand chief, would 0:19:04.200 --> 0:19:06.040 I say, well, we've got to keep fighting. You know, 0:19:06.119 --> 0:19:08.840 we've got to persevere, you know, we we can't give up. 0:19:09.560 --> 0:19:15.120 And the elders are saying the same thing. We'll get 0:19:15.160 --> 0:19:19.600 into all that right after the break in two thousand one, 0:19:19.880 --> 0:19:23.080 nearly fifteen years after Mike first crossed the bridge and 0:19:23.160 --> 0:19:26.400 his pick up, the Supreme Court handed down its decision. 0:19:27.040 --> 0:19:33.560 The Supreme Court decided uh that the Mohawks abaquiz us 0:19:33.600 --> 0:19:39.199 it did not trade across the St. Lawrence River. To 0:19:39.320 --> 0:19:43.479 this stage, there's seminars put on by lawyers trying to 0:19:43.800 --> 0:19:46.680 figure out what the hell did Canada mean by that. 0:19:47.800 --> 0:19:51.400 Nobody couldn't make sense of it. The Supreme Court decided 0:19:51.400 --> 0:19:53.840 that Mohawks never had a right to cross the border. 0:19:54.359 --> 0:19:58.040 According to the history that the government's experts presented, Mohawks 0:19:58.080 --> 0:20:01.200 never traded north south across the St. Lawrence River, which 0:20:01.240 --> 0:20:05.560 marks the US Canada border. Instead, they claimed, Mohawks conducted 0:20:05.560 --> 0:20:08.840 their trade east to west above the St. Lawrence and 0:20:08.880 --> 0:20:11.679 therefore they don't have a right to free passage across 0:20:11.720 --> 0:20:16.240 the border. Today, you played again exactly the way they 0:20:16.280 --> 0:20:19.240 laid it out. You get your decision, and then they 0:20:19.320 --> 0:20:23.680 yanked back away. I lost all respect. I didn't think 0:20:23.680 --> 0:20:25.800 I whatever. You left to see the day that it 0:20:25.960 --> 0:20:30.600 was so blunt um that they weren't gonna let it happen. 0:20:31.840 --> 0:20:34.600 The impact of the decision was felt across Canada. Immediately, 0:20:35.359 --> 0:20:38.400 Customs police began enforcing border taxes with a new vigor, 0:20:38.760 --> 0:20:43.040 and Indigenous advocates were crushed. The whole saga begged the 0:20:43.160 --> 0:20:45.919 question of whether it was worth fighting the status quo. 0:20:46.400 --> 0:20:51.359 If losing meant having your rights officially denied, What was 0:20:51.359 --> 0:20:55.520 the effect of his loss? There? It was? It was bad. 0:20:56.480 --> 0:20:58.920 Kenneth Dear is the founder of the Eastern Door newspaper 0:20:59.040 --> 0:21:01.120 and a longtime commun Unity leader, and got a wag 0:21:01.160 --> 0:21:03.600 game Mohawk territory. You know, first of all, he was 0:21:03.680 --> 0:21:05.639 told don't do it, and but he wouldn't listen on 0:21:05.640 --> 0:21:09.760 anyone ahead. A lot of people in the long house, 0:21:10.119 --> 0:21:13.520 we're telling them not not to do it. Wow, because 0:21:13.520 --> 0:21:17.240 of the risk losing, you know, and uh, which would 0:21:17.240 --> 0:21:20.880 happened people were piste. I always say that you stay 0:21:20.880 --> 0:21:22.840 out of courts. Don't go out of courts, stay stay 0:21:22.880 --> 0:21:26.760 out of it. And and and sometimes we just get 0:21:26.800 --> 0:21:29.280 shoot ourselves in the foot that way, you know. And uh, 0:21:29.359 --> 0:21:32.000 as if courts don't mean anything to watch what they do. 0:21:33.119 --> 0:21:35.240 It's easy to say that the courts don't matter to 0:21:35.320 --> 0:21:39.720 Indigenous people. Their modern institutions trying to govern ancient societies. 0:21:40.119 --> 0:21:42.440 They're made up of experts who aren't Native. Law is 0:21:42.480 --> 0:21:46.399 imported from colonists and judges who aren't trained in Indigenous history. 0:21:47.440 --> 0:21:49.439 But at the end of the day, the courts have 0:21:49.520 --> 0:21:52.399 a very real impact on the lives of Indigenous people, 0:21:52.880 --> 0:21:57.480 regardless of whether those decisions are considered legitimate. Steve Bonspiel, 0:21:57.720 --> 0:22:00.720 editor of the Eastern Or newspaper, has what happens with 0:22:00.720 --> 0:22:03.800 these sorts of cases time and time again. We have 0:22:03.920 --> 0:22:08.120 to fight in a system that inherently has waited against us, 0:22:08.920 --> 0:22:13.679 a country that inherently doesn't accept us, or even to 0:22:13.760 --> 0:22:18.399 the worst point, hates us. And and we have no choice. 0:22:18.440 --> 0:22:20.359 What are we gonna do? You know. So it's not 0:22:20.400 --> 0:22:24.199 a surprise when people, you know, go and uh stand 0:22:24.280 --> 0:22:28.920 up against the pipeline or block an entrance way or whatever, grassroots, 0:22:28.960 --> 0:22:32.480 because there's no other way, you know. And and I 0:22:32.520 --> 0:22:34.800 think that's the tough part is that this court system 0:22:34.840 --> 0:22:39.240 is set up to serve certain people and it's not us, 0:22:39.800 --> 0:22:42.280 you know. And that's the toughest part is you're fighting 0:22:42.320 --> 0:22:46.240 against this um, this monster that has endless money and 0:22:46.320 --> 0:22:50.720 endless resources. There's always that double standard of like, wait, 0:22:50.840 --> 0:22:53.960 the manhawks are getting ahead, Okay, now, let's let's nail them. Well, 0:22:53.960 --> 0:22:56.520 our people are getting ahead. No, that's fine, that's that's innovation, 0:22:56.640 --> 0:23:00.240 that's that's you know, them evolving. The courts. Just asion 0:23:00.280 --> 0:23:02.600 made it clear that this wasn't the place for Indigenous 0:23:02.640 --> 0:23:05.600 people to affirm their rights. Canada would never give up 0:23:05.600 --> 0:23:08.200 any of its sovereignty to make space for indigenous communities. 0:23:08.840 --> 0:23:11.560 It forced indigenous advocates to ask themselves if they should 0:23:11.560 --> 0:23:15.040 even bother doing things through the quote unquote proper channels 0:23:15.200 --> 0:23:17.359 if the system was rigged against them in the first place. 0:23:17.840 --> 0:23:19.920 Peggy Mayo stand Up is a former chief on the 0:23:19.920 --> 0:23:23.120 Mohawk Council of Ganawage and one of Derek's expert witnesses 0:23:23.160 --> 0:23:26.280 for the constitutional challenge. She's had a front row seat 0:23:26.280 --> 0:23:28.119 to Derek's case since he first went to court on 0:23:28.200 --> 0:23:31.199 criminal charges, and the way she sees it, Derek and 0:23:31.280 --> 0:23:33.600 Hunter are fighting this thing the only way they can. 0:23:34.040 --> 0:23:37.280 When you look across Canada, like all the cases that 0:23:37.320 --> 0:23:40.520 have gone to courts, like land claims, every every kind 0:23:40.520 --> 0:23:43.040 of case that you could think of, even with the 0:23:43.160 --> 0:23:47.280 tax exemption regarding working on the outside but working for 0:23:47.440 --> 0:23:51.240 native entity, all of that, all those challenges that haven't 0:23:51.240 --> 0:23:54.200 done all the years back unemployment, and the list goes 0:23:54.240 --> 0:23:56.399 on and on. Have we won a case? The answers, no, 0:23:56.520 --> 0:23:59.600 we haven't. We haven't won anything major. I mean, then 0:23:59.640 --> 0:24:01.399 what is the value of fighting any of these in 0:24:01.440 --> 0:24:04.199 the court? Well, to me, there's no other way to 0:24:04.200 --> 0:24:06.280 fight it. And what else you're gonna do. You're not 0:24:06.320 --> 0:24:08.760 gonna have a war over it because we're not gonna win. 0:24:09.440 --> 0:24:12.399 I mean, we're like you look at it as Indigenous 0:24:12.400 --> 0:24:16.080 people across the country were like one percent of the population. 0:24:17.920 --> 0:24:20.200 And I mean it's like when we have no chance 0:24:20.240 --> 0:24:22.480 of we can take in our arrows out and okay, 0:24:22.480 --> 0:24:24.840 we're gonna go to battle now with them. There's no 0:24:24.920 --> 0:24:27.600 way we can do that. So there's only one way 0:24:27.640 --> 0:24:29.080 to do it is in the courts, and have your 0:24:29.119 --> 0:24:32.000 faith and trust that you're going to find some lawyer 0:24:32.040 --> 0:24:35.200 who's going to be committed and dedicated and finding every 0:24:35.240 --> 0:24:38.280 loophole and cover every loophole to get us to this court. 0:24:38.720 --> 0:24:42.880 That's our only option. Hunter Montur, Derek's co accused, I'm 0:24:42.920 --> 0:24:44.760 not gonna sit in, gonna wag in my whole life 0:24:44.840 --> 0:24:46.520 because I don't want to turn myself in. I'm not 0:24:46.520 --> 0:24:50.080 going to do that. So it is what it is. 0:24:50.119 --> 0:24:51.679 What we're trying to take the fight wherever we can 0:24:51.720 --> 0:24:54.960 take it. And then we'll see who's ready to keep 0:24:55.000 --> 0:24:59.840 fighting and go on and who's who's really cut out 0:24:59.840 --> 0:25:01.880