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Duty-free Mohawk border crossing blockaded

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CORNWALL, Ontario - Mohawk claims of aboriginal rights to free trade have taken a big hit from the Canadian Supreme Court.

The country's highest court recently reversed two lower federal courts and ruled that Michael Mitchell, grand chief of the Mohawk Council of Akwesasne, didn't have a historic right to bring goods into Canada without paying import duties.

The case originated in 1988 when Mitchell drove a truck from the United States loaded with a washing machine, 10 blankets, 20 Bibles, groceries, a case of motor oil and used clothing. He refused to pay $361.64 in duty and took the items to the Mohawk territory of Tendinaga, where he presented them as gifts.

The Minister of National Revenue sued Mitchell for the duty, but a federal court in 1997 upheld the Mohawk case and directed the federal government to reimburse Mitchell for nearly $294,000 in legal costs.

This is the ruling the Supreme Court overturned May 24. The justices rejected the historical arguments presented to the trial court. Chief Justice Beverley McLachlin wrote that the "sparse and tenuous evidence advanced in this case" failed to prove a level of "pre-contact Mohawk trading north of the Canada-United States boundary" that would support the claim of an aboriginal right.

McLachlin said there were two steps to the argument, first showing that an aboriginal right existed and then deciding whether it was incompatible with "Crown sovereignty" and hence barred from recognition. After a lengthy discussion of archaeology, she denied that the Mohawks conducted enough north-bound trade to establish the right to cross the present border freely.

With that decision out of the way, she declined to rule on "sovereign incompatibility ... until such time as it is necessary for the Court to resolve this issue."

Although McLachlin noted that the court had not yet invoked this doctrine, its shadow lay heavy on the government's argument. McLachlin cited the "government's contention" that Canada's 1982 Constitution Act "extends constitutional protection only to those aboriginal practices, customs and traditions that are compatible with the historical and modern exercise of Crown sovereignty."

Even if Mohawks proved a right to cross-border trade, went this argument, it would be barred "as incompatible with the Crown's sovereign interest in regulating its borders."