Karl Dockstader said all he wanted to do was bring a carton of tobacco to his cousin.
The Oneida Nation of the Thames man, who lives in Niagara Falls, Ont., said he bought the about $40 worth of tobacco from Seneca One Stop in the U.S. on April 23 before returning to Canada via the Rainbow Bridge, but border agents started asking questions.
Dockstader, a journalist, radio talk-show host and executive director of the Niagara Regional Native Centre, said they wouldn't let him bring the tobacco over the border unless he paid a duty tax.
"First off, it's a traditional item for our people, but secondarily, I have special rights as a First Nations person where I don't have to pay duty. The customs officer disagreed," the 42-year-old told CBC Hamilton in an interview.
Dockstader said he should have the right to travel and support other First Nations communities and businesses without duty regulations infringing on his ability to move freely.
He highlighted Section 36 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which covers the right to continue economic activities with communities across borders, and the Jay Treaty — an agreement signed in 1794 by the U.K. and the U.S. that says Indigenous people could travel freely across the then newly established border.
Canada has endorsed UNDRIP, but its roadmap to implement it remains in its infancy.
Canada Border Services Agency (CBSA) wouldn't comment on this specific case due to privacy regulations. But CBSA did say while the U.S. honours the Jay treaty, this country does not as "Canadian courts have ruled that the Jay Treaty was abrogated by the War of 1812."
Canada should honour treaties, lawyer said
Dockstader said the border agents were friendly, but told him it wasn't worth the hassle of trying to bring the tobacco across the border without paying a fee, which he felt was disrespectful.
He said he ended up leaving without the tobacco and not paying the $72 fee, but added this isn't about the money or the tobacco.
"It represents a much larger what I would call disrespect that Canada is giving to First Nations people. I think it's rude treatment," he said.
Sara Mainville, a partner with JFK Law LLP based in Toronto and an Anishinaabe woman from Couchiching First Nation, isn't representing Dockstader, but was asked by CBC to comment on what he says he experienced.
She said she agrees with him.
"One of the things we've always been faced with is to prove our rights because Canada is ignoring these treaties for such a long time."
Mainville said treaties are part of a whole historical relationship.
While Indigenous people remember pacts like the Jay Treaty, Canada ignores some of them, she said.
"The Jay Treaty is one of the things that cemented a strong relationship such that Indigenous peoples were military allies of what would become Canada," Mainville said.
"You can't just pick and choose what obligations you're going to [honour], it's part of this relationship and that's the whole idea of reconciliation."
Mainville also said the tobacco isn't merely a carton of cigarettes.
"The tobacco itself is something that is very instrumental in relationships, and trading and treaties itself, the sharing of tobacco. That's symbolism that I don't think is lost upon Mr. Dockstader and shouldn't necessarily be lost on Canada," she said.
Dockstader said the tobacco he was told to pay duty for "was not our sacred Oyu:kwa [green tobacco], but commercial tobacco is still used in ceremony, and even if it's for smoking, it's still a traditional item."
He said he won't pay the fine and is fighting to get the tobacco back.
"I would love it if some of the Canadian officials would walk their talk on reconciliation and just give us our rights to freely cross the border with our personal items back."