When Robert Venables teaches his popular two-semester undergraduate course on the history and culture of American Indians this year, he will add a new lecture about a recent court decision in Canada that will have far-reaching effects on Indian rights and he'll be telling the story from an insider's perspective.
The case took nine years to come to trial and focused on the treaty rights of the Mohawk Nation under the Canadian constitution, which is now in the process of being reformed. Venables, senior lecturer in the American Indian Program, was one of several expert witnesses who presented evidence that included an intense examination of Mohawk oral history, anthropological evidence, letters written in the 17th century, and 18th and 19th century treaties negotiated between France, England and the new United States.
Venables explained in an interview that this was a test case instigated by Grand Chief Michael Mitchell of the Mohawk Nation, whose reservation at Akwesasne straddles both sides of the U.S.-Canada border in northern New York. On March 22, 1988, Mitchell and two companions crossed into Canada at the international border at Cornwall. He informed customs officials that he had the following items in his vehicle: one washing machine, 10 blankets, 20 Bibles, articles of used clothing, a case of lubricating motor oil, 10 loaves of bread, two pounds of butter, four gallons of milk, six bags of cookies and 12 cans of soup.
While the right of Native Americans to freely cross the U.S.-Canada border has been recognized since 1928 by both countries, their right to transport legal goods without paying customs duties or tariffs had not been established. Mitchell was charged $361.64 in duty, which he refused to pay. He then took the items to the Mohawk territory of Tyendinaga in Canada and presented them as gifts to that community to indicate a renewal of trade ties.
Mitchell brought suit in the Federal Court of Canada, which accepted the case and designated the Minister of National Revenue as the defendant. He argued that as a Mohawk of Akwesasne he had an existing aboriginal right protected under the Constitution Act of 1982 to bring "usual goods" into Canada for personal and community use without having to pay customs duties. He specified that his claim involved only legal items and not firearms, restricted or prohibited drugs, alcohol or plants.
"This case was a focal point for the Haudenosaunee on both sides of the international border," Venables said, because it would set a precedent for future cases involving aboriginal rights and trade issues. (Haudenosaunee is the name used by Native Americans to describe their Six Nations in New York state: the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora nations, which are known historically as the Iroquois.)
Among the evidence examined in the case were questions that could be resolved only in a detailed examination of history: What is the aboriginal homeland of the Mohawks; how far did they travel; what lands did they control; with whom did they trade; when was their first contact with Europeans; what items did they trade with other Indians and with Europeans; what rights did existing treaties give to the Mohawks, and what treaty rights should be validated in the Canadian constitution?
"My job was to try to give several centuries of evidence using documentary and archaeological evidence," Venables explained; he began working on the case in 1989. "The issue was trade. We had to prove whether the Mohawks had an aboriginal context of trade that was geographically extensive and included the areas cited in the court case."
Among the evidence Venables cited was a letter written by a Dutch trader in 1634 that described trade among the native peoples. Proving that the Mohawks traded in a wide area was relatively easy. But there were no washing machines in 1634. How do you claim an aboriginal right to transport modern appliances across an international border?
"I pointed out in my testimony, from archeological evidence to the present, that what had been traded increased according to the circumstances of the day," Venables explained. "The 1634 Dutch document reported that even then the Mohawks had a lot of stuff that was European. Other documents from 1761 were entered into evidence; you name it, they were trading it. It shows how people aren't static and how a washing machine in the 20th century is just like a mirror or a pocketknife in the 18th."
Venables was on the stand for five days in Ottawa last October. He emphasized that he was part of a diverse team of scholars that included Mitchell himself; John Mohawk (Seneca) of SUNY-Buffalo; Ernie Benedict, an elder in the Mohawk nation; and Canadian historians Joan Holmes and Charles Johnston. Every point they made was disputed by the defense expert, he said, adding, "We were throwing books at each other." Figuratively speaking, of course.
The case had a positive outcome. The Hon. Justice William P. McKeown ruled on June 27 that Mitchell did in fact have an existing aboriginal right protected under the Canadian Constitution Act of 1982 to pass freely across the Canada-U.S. border and to bring goods for personal and community use without having to pay customs duties. The judge also ordered the defendant, the Canadian government, to pay costs to Mitchell in the amount of $293,991.92.
"The ruling was very complicated, and we did not win on all points," Venables said, "but essentially the judge ruled that the Mohawks do have the right to trade regardless of contemporary political boundaries drawn by non-Indians, and they have the right to trade in 'usual goods.' He ruled that their treaty rights were still intact under the new constitution. This was an important precedent.
"I was particularly pleased with the court decision because the judge was very sensitive to the social structure of the Haudenosaunee," Venables added. "McKeown cites respectfully the testimony of the Mohawks and refers respectfully to those aspects of Mohawk society that were clearly distinct from Canadian and U.S. society and doesn't judge them inferior. It was a joy for me to see that. It was an amazingly sensitive decision that respected Mohawk points of view."
It is too early to tell just what the effects of this ruling will be. The Canadian government may appeal it. The ruling may or may not influence future U.S. cases. But it was still an important precedent for the Haudenosaunee, who have lost previous cases relating to their treaty rights in the courts of both nations, Venables said.
"The decision tells the Canadian government it has to recognize the rights of Indian people as they existed before contact with Europeans," he explained. "To be a truly pluralistic society, all societies will have to do what the Canadians just did sort out where there are reasonable differences and protect minority rights without infringing on the rights of the majority. The Canadians are making history," he said.
It's a history that will get a play-by-play report in Venables' lectures.