Lakota man challenges immigration rules

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Charlie Smoke may be a man without a country, but he's not a man without a nation.

Of Mohawk and Lakota ancestry, the 39-year-old faces a charge under the Immigration Act for working without a visa after he was found to be employed as a science teacher's assistant in Regina without proof of Canadian citizenship. He also faces a provincial charge for using a false social insurance number (SIN) to land the job.

His legal troubles began when an Immigration Canada investigator asked him if he was a Canadian citizen. He said, "No," but he meant that he was not a citizen of any European nation but a citizen of an Indigenous nation.

That statement unleashed the immigration department's regulatory processes that require non-citizens to have work visas. Immigration officials in Regina attempted to have him deported on Jan. 9. He even faced being held in jail indefinitely while the investigation into his status was conducted, until a judge ruled he was not a flight risk or a danger to the community.

Smoke says he was born at home-not at a hospital-at Akwesasne, a Mohawk territory on the international border between Ontario and New York State. His lawyer, Donald Worme of Saskatoon, said his client is one of "hundreds" of traditional Native people across the country that refused to be drawn into the Canadian mainstream and its interconnection of registration forms and bureaucratic processes.

"It's very clear that a lot of people have not registered for a variety of different reasons, primarily because they did not want their children to be grabbed and subjected to sexual predators at residential school," the lawyer told Windspeaker. "His parents of course would have been exposed to what was going on in that day. As you know, it was obligatory to attend residential school. It was mandatory to send your children to residential school at the risk of your own liberty."

Smoke used his wife's SIN to land the job at the Regina public school where he was working when he came to the attention of Immigration Canada officials. He told Windspeaker that Native children make up 90 per cent of the student body. He received his first visit from government officials at the school two days after he showed Robert Redford's documentary Incident at Oglala in class in late June of 2001. The movie makes the case that Native American activist Leonard Peltier was wrongfully convicted of killing two FBI agents during the 1974 conflict between American Indian Movement traditionalists and the FBI at the Pine Ridge reservation in South Dakota. Peltier remains in Leavenworth Prison after serving more than 20 years for the killing of those agents, even though human rights organizations all over the planet are convinced he was wrongfully convicted.

Smoke believes a member of the school's staff was offended by the showing of the movie and turned him in. He said he had been working for several months with a Human Resources Development Canada employee to secure a SIN, but he was having difficulty.

"He wasn't able to get a social insurance number because it required him, first of all, to have a birth certificate. And having not had his birth registered, there was no birth certificate to issue," Worme explained.

The ensuing investigation eventually led to an inquiry on Sept. 20 that in turn led to a deportation order. Smoke refused to leave and was taken into custody on Jan. 8.

The situation became a high profile story for the local media and Saskatchewan Grande Chief Perry Bellegarde asked Worme to go to Regina and represent Smoke at the expense of the Federation of Saskatchewan Indian Nations (FSIN), Smoke said.

Worme was able to convince the judge not to incarcerate his new client. But the lawyer is not impressed with the actions of Immigration Canada in prosecuting an Indigenous person for being an illegal immigrant.

"His crime, of course, is that he was working 'unlawfully' under provisions of the Immigration Act. He didn't have a social insurnce number. He used his wife's social insurance number and had acted criminally by feeding his young family. They call it unlawful employment. I call it feeding wife and family," Worme said.

The lawyer thinks he has a number of legal options that he can employ to defend Smoke. Since Canada and the United States had already decided to open up the border with the 1982 North American Free Trade Agreement (NAFTA), Worme believes that, even if it was proven that Smoke was born in the United States (a fact he is not conceding) it would be punitive for Smoke to be forcibly removed from Canada and prevented from earning a living when the Jay Treaty allows Canadian-born Native people to work in the U.S.

"Primarily, we think there is a NAFTA issue here, that is, the consistency of the application of law in Canada and the U.S. Obviously that is not the case with the Jay Treaty. In the United States the Jay Treaty is given full recognition and implementation and in Canada that is not the case," he said. "That's certainly the approach that we're investigating at this moment. That's the approach that, in my respectful submission because I had nothing to do with the Mitchell case, that Chief Mitchell should have actually pursued.

"Certainly we would rely upon the Jay Treaty as to suggest that there is an existing treaty and/or Aboriginal right. It necessitates a re-think or re-look at position on the Jay Treaty by Canada."

Mitchell argued that his people have the right to freely cross the international border that was imposed on their community. He pushed the case all the way to the Supreme Court of Canada where, after an uninterrupted string of victories in lower courts, the nine high court justices ruled against him.

Investigators are now looking for proof that Smoke was born at Akwesasne. He also claims that he received financial assistance from the Department of Indian Affairs several years ago, something that would vindicate his claim to have been connected with a band n the Canadian side of the border.

Smoke is a colorful individual with a quick wit. He's eager to use this case to make some political points for Aboriginal people in Canada. A member of the American Indian Movement in his youth, the idea of being a political activist is one that doesn't intimidate him. Worme, a careful lawyer who in other high profile cases has kept his clients from speaking to the press, admitted he had no chance of keeping Smoke from making his case to the press and public.

"He tried to play the game as fairly as he could but he was not met with any kind of reciprocal behavior by Immigration Canada. What I found astounding is that they are fully aware of war criminals who have gotten access into this country under false pretenses but have done nothing about it," Worme said.

In light of the many scandals surrounding law enforcement officials and Native people in Saskatchewan in recent months, Worme worries about a comment he said an immigration officer made to his client, telling Smoke just after the Sept. 11 terrorist attack that they would deport him to Pakistan.

Worme said he would welcome any help that Indian Affairs Minister Robert Nault might be willing to offer in government circles to explain that the cross-border issue is political and not criminal.

"That would be quite useful at this moment because clearly the bureaucracy, judging by some of the comments that they've made, are well beyond this and would seem to have some kind of personal interest, a very vindictive personal interest in this. Their suggestion that they would deport Charlie to Pakistan, I thought that was horrendous for a public official to say such a thing," he said.

Smoke said, on Jan. 29, that he is worried that Bellegarde is having second thoughts about funding his defense because he hadn't heard from the vice-chief for three weeks. Local media reports say the FSIN executive will decide the future of the organization's involvement when they meet in early Februar.