Supreme Court of Canada –  S.C.R. 618
This is a test case of the Mohawk to determine the application of article III of the Jay Treaty, signed by the British Crown and the United States. This article provides that the Indians should not pay duty fees when crossing the boundary with goods.
The Supreme Court rejected the application of the Jay Treaty, affirming that it must be ratified by statute in order to enter into force in Canada.
The Mitchell case, in 2001, complemented this decision. The argument made regarding Aboriginal rights of the Mohawk to cross the boundary without paying duty was not accepted by the Court.
Do Mohawks from the St. Regis Band have a right to exception from customs and excise taxes protected by the Jay Treaty or the Indian Act?
The Mohawk are not exempt from duty fees, as the Jay Treaty was not ratified by Canada nor does the Indian Act apply in this case (unanimous decision).
Between: Louis Francis
And: The Crown of Canada
Louis Francis is a Mohawk Indian from St. Regis Indian tribes living on the St. Regis Indian Reserve (now Akwesasne). The St. Regis Reserve covers parts of Quebec, Ontario and New York in the United States. Many of its members work in the United States, as did Francis. He also served in the American army in World War II, but was discharged in 1946. Since that time, Francis has resided in the Quebec section of the reserve.
In 1948, 1950 and 1951, Francis imported goods (a washing machine, an oil heater and a refrigerator) from the United States without paying duty in order to allow the Mohawks of St. Regis to put together a test case challenging the Customs Tariff Act and the Excise Tax Act.
The goods were subsequently seized and detained on behalf of the Crown “for the failure to pay duty and taxes on the importation into Canada of the said goods under the Customs Tariff Act and the Excise Tax Act.” Francis filed a petition of right claiming the return of the money paid since, according to the Jay Treaty signed between the United States and the British Crown in 1794, he was not subject to customs and excise taxes.
Francis: The 1794 Jay Treaty of Amity, Commerce and Navigation between His Britannic Majesty and the United States exempts the St. Regis Mohawks from paying duties and tariffs. Francis is not liable for the payment of duty in virtue of s. 86 of the Indian Act, which exempts Indians from paying taxes on personal property.
The Crown: Section 86 of the Indian Act cannot be invoked by the appellant in the present case since duties do not constitute tax on personal property. Also, the Crown argued that the Jay Treaty was not a treaty of peace, thus requiring an Act of Parliament to be of full effect in Canada.
Exchequer Court (1955): The Court dismissed Francis’ petition, claiming that he was not exempt from paying excise taxes.
Kerwin, Taschereau, Rand, Kellock, Cartwright, Fauteux, Abbott
The Jay Treaty needed to be ratified by legislation in order to make it effective at the national level. Since no legislation had been enacted for that purpose, Francis could not use the Treaty as a basis for the right of exemption from customs and excise taxes.
The claim pertaining to s. 86 of the Indian Act was also denied. According to Justices Kellock and Abbott, the s. 86 exemption concerning personal property of a registered Indian situated on a reserve is not a general immunity from all taxes enacted by Parliament in other legislations. The Customs Act and the Customs Tariff Act under which Francis was fined are general legislations whose provisions are applied to every Canadian citizen, including registered Indians.
After the Supreme Court’s decision, Mohawks were astonished that Parliament had neglected to ratify the Jay Treaty and were even more shocked to witness its current inaction. On their website, the Mohawks of Akwesasne state that from the 1950s on, their people have encountered constant violations of their border crossing, trade and mobility rights. They maintain that they have persistently brought their concerns to the attention of the federal government.
In 1983, a Special Parliamentary Committee on Indian Self-Government was set up by the government and gathered First Nations’ submissions on border crossing rights. The Penner Report suggested “that Parliament take immediate steps to implement Article III of the Jay Treaty” (Recommendation 29, page 78). For an extended period of time, the Francis decision served as the government’s justification for rejecting claims for recognition of treaty rights and for its failure to enact legislation implementing Article III of the Jay Treaty.
With the advent of the Constitution Act, 1982 and the government’s recognition of Aboriginal rights in s. 35 (1), the Mohawks of Akwesasne once again tried to challenge the Customs Act and the Excise Tax Act. According to them, they held an Aboriginal right to transportation of goods for trade with other nations or their personal use across the US-Canada border without paying any customs. With the support of the Assembly of First Nations and other First Nations, a test case was developed in 1998 when Grand Chief Mitchell of Akwesasne crossed the International Bridge in Cornwall without paying any duties on the merchandise he brought back into Canada from the United States. The Supreme Court of Canada heard the case, Mitchell v. M.N.R., in 2001.
Aboriginal Rights and Research Office. 1999. Aboriginal Border Crossing Rights and the Jay Treaty of 1794. Aboriginal Rights and Research Office. Report prepared for the Mohawk Council of Akwesasne. Scanterbery. Online. http://www.akwesasne.ca/jaytreaty.html. Accessed July 7, 2009.
House of Commons, Special Parliamentary Committee on Indian Self-Government, Indian Self-Government in Canada: Report of the Special Committee (“Penner Report”). 1983.