120 F.Supp.2d 921 United States District
Court, D. Oregon. UNITED STATES of
America, Plaintiff, v. James Allen Scott
PITAWANAKWAT, Defendant. No. 00-M-489-ST. Nov. 15, 2000. HEADNOTE: Canadian government sought extradition of
defendant Canadian citizen who was alleged to have violated terms of his parole
by leaving Canada without permission after serving portion of sentence. Held:
Defendants offenses fell within political offense exception to
extradition. [*923] COUNSEL: Paul J. Papak, Federal Public Defender,
Portland, OR, for Defendant. [*924] OPINION AND ORDER JUDGE: STEWART, United States Magistrate Judge. INTRODUCTION Canadian authorities seek extradition of defendant, a Canadian
citizen, pursuant to 18 USC § 3184 and the governing Extradition
Treaty between the United States and Canada, 27 UST 983, TIAS 8237, as amended
by Protocol effective November 26, 1991 (Extradition
Treaty). Defendant was arrested in Oregon on June 20, 2000, pursuant to a
complaint and warrant of arrest seeking defendants extradition to
Canada. The Canadian government wants defendant extradited to serve the
remaining 702 days of his three-year sentence of imprisonment imposed in 1997
for his convictions for one count of mischief causing actual danger to life and
one count of possession of a weapon for a purpose dangerous to the public
peace. Defendants convictions stem from his participation in a 1995
incident referred to as the Lake Gustafsen incident.
Defendant and other native people, [FN1] known as the Tspeten
Defenders, occupied private property in British Columbia near Lake Gustafsen
which encompasses a contested parcel of sacred ground. When the
Tspeten Defenders refused to leave, an armed standoff ensued with the
Royal Canadian Mounted Police (RCMP). During the standoff,
defendant discharged a rifle in the air at a police helicopter and rode in a
vehicle which contained an AK-47 assault rifle. The Tspeten Defenders
eventually surrendered. FN1. This court is uncertain as to the
appropriate terminology to describe the indigenous people of Canada. For ease
of reference, this court will simply refer to them as native people. After being convicted, defendant served nearly one year in custody,
was released on parole, and then violated the terms of his parole by leaving
Canada without permission. As a result, Canada issued on arrest warrant for
defendant for his parole violation. Defendant opposes extradition to Canada based on Article IV(1)(iii)
of the Extradition Treaty, commonly referred to as the political
offense exception, which provides as follows: (1) Extradition shall not be granted in any of
the following circumstances: * * * * * * (iii) When the offense in respect of which
extradition is requested is of a political character, or the person whose
extradition is requested proves that the extradition request has been made for
the purpose of trying or punishing him for an offense of the above-mentioned
character. If any question arises as to whether a case comes within the
provision of this subparagraph, the authorities of the Government on which the
requisition is made shall decide. On October 18, 2000, this court held an extradition hearing to
determine whether defendant may be extradited under the Extradition Treaty. FACTS In July 1989, Lyle James, a cattle rancher, conditionally allowed
various native people, primarily Percy Rossette, to use some property owned by
his corporation near the shore of Lake Gustafsen in British Columbia for the
first annual Sundance Ceremony. Defendants Exhibit C, p. 2. No
permission was sought or received for subsequent Sundance Ceremonies held from
1990 to 1992. Id. The RCMP brokered a written agreement between the parties concerning
the use of the land in 1993, but in 1994 the native people used the land again
for a Sundance Ceremony without permission. Id. at 3. In January 1995, Bruce Clark (Clark), a lawyer
(now disbarred) representing the Native Sovereignty Association of which
Rosette was a member, petitioned the Queen of England to restore the
jurisdiction [*925] of the native people over their hunting grounds which had
been illegally usurped by the Canadian courts and by band
governments elected under the Indian Act operating on illegal
reserves on unsurrendered hunting grounds. Id at 3;
Governments Exhibit A. Clarks thesis is premised on
Canadas violation of the international genocide conventions by
failing to conform with its existing law of aboriginal rights.
Defendants Exhibit K-12. According to Clerks petition, Queen Annes
Order dated July 9, 1704, established an independent and impartial Standing
Committee with jurisdiction over boundary disputes between the native
peoples hunting grounds and the Crowns public lands. In
addition, the Royal Proclamation of 1763 by King George III, the founding
document of British Imperial Canada, granted jurisdiction to the colonial Crown
Courts over persons committing crimes upon public lands who flee to hunting
grounds to evade criminal process. In the Constitution Act of 1982, the
Canadian Parliament confirmed existing aboriginal and treaty
rights and therefore the 1704 and 1763 Orders. However, various acts
in the 1800s illegally usurped jurisdiction over unsurrendered hunting grounds.
The petition sought to have a Standing Committee, previously constituted by the
1704 Order, address and report on the boundaries of existing native peoples
hunting grounds and the legal sanctions applicable against various respondents
for (misprision of) treason and fraud and complicity in crimes
related to genocide due to usurpation of jurisdiction in relation to the
Hunting Grounds so delimited. The respondents included the Chief
Justices of Canada and three provinces, as well as the Grand Chief of the
Assembly of First Nations. Shortly afterwards, defendant, Rosette, and other native people
established a permanent encampment on James land and began
constructing a fence around it. Defendants Exhibit C, p. 3. On June
13, 1995, James served a notice of trespass on the individuals in the
encampment. Id. The native people in the encampment refused to vacate the land
even after further negotiations brokered by the RCMP. This dispute over James property stems from the
contention of the Tspeten Defenders that the tribes in British
Columbia never ceded or sold their lands to the Canadian government and have a
right to occupy their land, rather than settle land claims through peaceful
negotiations with the governments of British Columbia and Canada.
Defendants Exhibit E, p. 2. On June 20, 1995, the Cariboo Tribal Council and the Canoe Creek
Indian Band issued separate statements that they neither condone nor
support the actions of this small group. Governments
Exhibits B & C. The Cariboo Tribal Council represents the five local
aboriginal tribes, including the Canoe Creek Band whose traditional hunting
grounds include James land. The Sundance Ceremony was held in July 1995. Defendants
Exhibit C, p. 3. Afterward, the individuals in the encampment refused to vacate
James property and the RCMP began an investigation based on
information that illegal firearms and explosives were being moved into the
camp. Id. Members of the encampment were seen in camouflage gear carrying
rifles, and a spokesman stated that any entry by police would be seen as an
act of war. Id at 4. At that time, the encampment may have
contained 30-40 people, including women and children. On July 20, 1995, the Canoe Creek Band declared that they
preferred to use the Treaty Process and again disassociated
themselves from the individuals in the encampment. Governments
Exhibit D. However, at some point, a delegation of Shuswap Indians delivered
stocks of food and tobacco to the encampment. Defendants Exhibit F.
Many other groups also expressed support for the Tspeten Defenders,
including the Union of B.C. Indian Chiefs and the people of Kahnawake Mohawk
[*926] Territory in
Quebec. Defendants Exhibits K-9 & J-2. Native constables continued negotiations with members of the
encampment. Defendants Exhibit C, p. 4. However, by late August 1995
the RCMP became alarmed at an increasing number of incidents involving the
possession and use of weapons near Lake Gustafsen and by reports that members
of the encampment viewed any entry of the police as an act of war. Id. at 4. Between August
24 and 26, 1995, the Tspeten Defenders spokesperson, Jones
Ignace (Ignace), instructed members of the camp that should
police enter: Its clearly war. Were all going to
do federal time, 20 years. Were not going to go peaceful. Body bags
or do a hell of a long stretch
Nobody is going to tell you to put
your weapons down. Id at 5. Ignace told negotiators that unless their
demands were met, the only way they were coming out was in body bags. Id. The situation escalated as the RCMP increased their presence by
constructing a base camp (named Camp Zulu) replete with
armored personnel carriers, helicopters, a field hospital, a communications
center, a landing field, military assault weapons, and a heavily armed
militarized police force of 400 officers in camouflage gear. The Canadian army
also was involved under the secret code name Operation
Wallaby. Defendants Exhibits A & H, pp. 7-8. On August 24, 1995, defendant, among others, fired on a police
helicopter flying near the camp. Though within range, the helicopter was not
struck. Defendants Exhibit C, p. 6. On August 25, 1995, the occupants of the camp demanded the January
petition be addressed. Id. On August 26, 1995, Clark reported to the Queen of
England that the Governor General had refused to stop the genocide
against the traditionalist sector of the aboriginal peoples and asked
her to save Canada from its errant political and juridical [sic]
leadership by acting on his clients petition.
Governments Exhibit A, p. 1. Clark entered the camp on August 31,
1995, which strengthened the resolve of the encampment to continue the armed
stand-off. Defendants Exhibit C, p. 7. August 27, 1995, saw a marked increase in the degree of violence
being employed by some members of the encampment. Id at 6. On that day,
individuals from the encampment discharged firearms at police and highway
workers who were removing trees felled across a road by members of the
encampment. Id. Other exchanges of gunfire occurred on September 7 and 11, 1995.
Id.
at 7-8. On September 11, 1995, the RCMP and members of the encampment
exchanged gunfire and defendant and another individual drove across the police
perimeter in a truck. Id at 8. The truck was blown up as it crossed a concealed
explosive device (referred to by defendant as a land mine) on a road. Id. Defendant and his
companion escaped injury and arrest, but left behind a rifle and AK-47 in the
truck. Id. In that episode, 10,000 to 20,000 government rounds were fired.
Defendants Exhibit K-1. The stand-off ended after almost two months when the 18
individuals (13 men and five women) remaining in the encampment surrendered
between September 11 and 17, 1995, and were charged with various crimes.
Defendants Exhibit C, p. 10. A search of the camp by police revealed
a large cache of firearms, ammunition, and a pipe bomb. Id. The surrounding
trees were riddled with 77,000 rounds of bullet holes fired
by the RCMP toward the camp. Defendants Exhibit L-15. Lake Gustafsen was only one of many incidents involving native
people during the summer of 1995. That same summer saw other protests, road
barricades, and occupations of parks and private property across Canada.
Defendants Exhibits K-7 & K-8. In July 1995, about 100 rebel
Chippewas occupied a military camp in Ontario and the neighboring reserve.
Defendants Exhibit F. In September 1995 about 40 [*927] rebel members
of the Kettle and Stony Point tribes occupied the neighboring Ipperwash
Provincial Park in Ontario, asserting that it was the site of a sacred burial
ground. Id. The Ipperwash incident involved a gun battle which became deadly
when police shot and killed one protestor and injured two others. Id. Also in September
1995, about 40 Nuxalk Nation chiefs, elders, and supporters peacefully
blockaded access to their unceded tribal lands at Fog Creek near Bella Coola,
British Columbia. Defendants Exhibits J-11 & J-12. After a 10-month trial, a jury convicted defendant and 17 others
of various crimes. Defendant was convicted of mischief causing actual danger to
life and possession of a weapon for a purpose dangerous to the public peace.
The maximum sentence is life imprisonment for the former offense and 10 years
imprisonment for the latter offense. On July 30, 1997, the judge sentenced
defendant to three years imprisonment for mischief and to one year concurrent
imprisonment for possession of a dangerous weapon. The judge also imposed a
lifetime ban on defendants possession of firearms, ammunition and
explosive substances. In the course of the Judgment imposing the sentences, the
court explained that: Briefly stated, this country has a long
history of civil protest in support of causes believed to be just. Where the
form of protest crosses the line into criminal activity, there are criminal
consequences to be borne. This is so regardless of the perceived justice of the
causes. This country is grappling with native land
claims. The band led by Chief Agnes Snow, for example, is advancing such a
claim over the land in question. These claims are being advanced diligently in
a responsible and lawful manner, despite the obvious frustrations. There is no question that all accused
genuinely believe in the justice of their cause, though some no longer advocate
the unlawful use of weapons to further that cause. All felt great frustration
at the failure to achieve any success for their cause in the courts or through
other lawful channels. Nor did they enjoy the support of local elected bands
who, along with the Assembly of First Nations, are dismissed by them as
government collaborators. What separates the Gustafsen Lake stand-off
from other forms of civil protest and even unlawful civil disobedience was the
use of weapons, violence and threats of violence to prevent their removal from
the land should their demands not be met. If police had been prepared to risk almost
certain loss of life with an armed entry to effect arrests, the incident would
have ended quickly. They wisely chose a course calculated to minimize that
risk. This required patience and the costly deployment of hundreds of officers
working in shifts to contain this remote and isolated area. It also required
the use of armoured personnel carriers designed to deploy and retrieve officers
in safety. It required the use of negotiations and intermediaries. Mistakes
were certainly made and events took unexpected turns, but ultimately the plan
proved successful, though the cost to the public was high. Defendants Exhibit C, pp. 24-25. After serving one year of his sentence, defendant was released on
August 18, 1998, on day parole for his good conduct in
prison. His parole was due to expire February 17, 1999. However, he absconded
just nine days after being released by moving to the United States without
permission. Although defendant does not possess United States
citizenship, his native heritage entitles him to legally reside in the United
States as a resident alien. [FN2] [*928] Canada issued a warrant on August 27,
1998, for defendants arrest for violating the terms of his parole. FN2. The parties have not addressed whether or
not defendant is deportable based upon his Canadian conviction. After more than 20 years of negotiating, the Nisgaa
Indian Nation agreed in 1998 to a land rights treaty, which was the first such
treaty between Canada and an aboriginal tribe in British Columbia in the last
100 years. Defendants Exhibit G. Canada and British Columbia are
continuing to negotiate land claims with more than 40 Indian councils and
nations. Id. STANDARDS In order to find that defendant is subject to surrender to Canada
under the terms of the Extradition Treaty, as well as under the relevant
statutes and case law, this court must find that: (1) It has jurisdiction to conduct the extradition hearing and has
proper jurisdiction over the defendant; (2) The defendant is being sought for an offense for which the Extradition
Treaty permits extradition; and (3) There is sufficient evidence to establish that the defendant
appearing in court is the same person sought by Canada and that he committed
the offense charged. See e.g., Clarey v. Gregg, 138 F.3d 764 (9th
Cir), cert denied, 525 U.S. 853, 119 S.Ct. 131, 142 L.Ed.2d 106 (1998); Then
v. Melendez, 92 F.3d 851, 855 (9th Cir1996). Defendant admits both that this court has the requisite
jurisdiction to conduct the extradition hearing and that he is the same person
sought by Canada and that he committed the offense charged. However, he
challenges the second condition necessary for extradition. Based on the
political offense exception in Article IV(1)(iii) of the Extradition Treaty, he
claims that he cannot be extradited to Canada. Specifically he contends that
the political offense exception applies because he was part of an uprising by
native people with both religious and political overtones. This court has jurisdiction to determine whether the political
offense exception should apply in a particular case to bar extradition. Quinn
v. Robinson, 783 F.2d 776, 786 (9th Cir), cert denied 479 U.S. 882, 107 S.Ct.
271, 93 L.Ed.2d 247 (1986). [FN3] FN3. If a court certifies to the Secretary of
State that an individual is extraditable and any habeas corpus review has
concluded, the Secretary in her discretion may determine whether or not the
person should be surrendered to the custody of the requesting state based on
humanitarian or other concerns. 18 USC § 3185; United States v.
Kin-Hong, 110 F.3d 103, 109-10 (1st Cir.1997). It is not the role of the
courts, but rather the Secretary of State, to determine whether extradition
should be denied on humanitarian grounds. Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1011
(9th Cir.2000), citing Lopez-Smith v. Hood, 121 F.3d 1322, 1326 (9th Cir.1997). DISCUSSION I. Burden of Proof The initial burden of proof is on defendant to establish the
essential elements of the political offense exception. Once established, the
burden shifts to the demanding government to prove that the crime
charged in the Complaint was not of a political character. Ramos
v. Diaz,
179 F.Supp. 459, 463 (S.D.Fla.1959) (denying extradition to Cuba of an escaped
prisoner convicted of murder committed during the Cuban revolution). Defendant
argues that the weight of the evidence supports his position and that the
government has not sustained its burden. II. Incidence Test Because the treaties contain no definition of a political offense,
the interpretation of the political offense exception has been relegated to the
courts. In Quinn,the Ninth Circuit thoroughly discussed the historical
development and present state of the political offense exception. This
exception, which arose in the aftermath of the American and French Revolutions,
was first incorporated into [*929] treaties in the early nineteenth
century and is now almost universally accepted in extradition
law. Quinn, 783 F.2d at 792. It was consciously designed to protect
the right of citizens to rebel against unjust or oppressive government and is
premised on the following justifications: First, its historical development suggests
that it is grounded in a belief that individuals have a right to
resort to political activism to foster political change. This
justification is consistent with the modern consensus that political crimes
have greater legitimacy than common crimes. Second, the exception reflects a
concern that individualsparticularly unsuccessful
rebelsshould not be returned to countries where they may be subjected
to unfair trials and punishments because of their political opinions. Third,
the exception comports with the notion that governmentsand certainly
their nonpolitical branchesshould not intervene in the internal
political struggles of other nations. Id, at 793 (citations omitted). Political offenses traditionally fall into one of two categories:
pure political offenses or relative political
offenses. Id at 793. Pure political offenses are acts aimed
directly at the government, and have none of the elements of ordinary crimes.
These offenses, which include treason, sedition, and espionage do not violate
the private rights of individuals. Id. In contrast, the category of relative political offenses includes
otherwise common crimes committed in connection with a political
act, or common crimes
committed for political
motives or in a political context. Id at 794. After comparing the
legal standard from other countries for determining if relative political
offenses are extraditable, Quinntraced the development of American law from the
British incidence test of In re Castioni [1891] 1 Q B 149, 166 (1890). In Castioni, the Swiss
government requested that Great Britain extradite a Swiss citizen who, with a
group of other angry citizens, seized the town arsenal, armed themselves,
stormed the palace gates, and forcibly possessed the palace, killing a
government official in the process. At the time of the incident, popular
displeasure with the regime was running high and the government had refused a
citizens petition to hold a referendum on the question of the
revision of the constitution. The British court denied extradition, finding
that Castionis actions were incidental to and formed a part
of political disturbances and holding that common crimes committed
in the course and in the furtherance of
a political disturbance would be treated as political offenses. Quinn, 783 F.2d at 795,
quoting Castioni, 1 Q B at 156, 166. American law has adopted a version of the incidence
test. In the seminal United States case, In re Ezeta, 62 F. 972
(N.D.Cal.1894), the court denied extradition to El Salvador of a number of
individuals accused of murder and robbery committed while unsuccessfully
attempting to thwart a revolution. The court held that the alleged acts were
committed during the progress of actual hostilities between the
contending forces and were closely identified
with the uprising in an unsuccessful effort to suppress it.
Id. The only United States Supreme Court case addressing the political
offense exception is Ornelas v. Ruiz, 161
U.S. 502, 509-12, 16 S.Ct. 689, 40 L.Ed. 787 (1896), which allowed the
extradition of certain Mexican bandits who raided a Mexican border town at or
about the time of revolutionary activity because they were not engaged in any
combat with Mexican governmental forces when they committed the charged
offenses. In order to determine if the actions were part of a movement
in aid of a political revolt, an insurrection, or a civil war, the
Supreme Court listed several factors pertinent to the political offense
inquiry, including the character of the foray, the mode of attack,
the persons [*930] killed or captured, and the kind of property taken or
destroyed. Id at 511, 16 S.Ct. 689. As summarized by Quinn, the incidence test
applied by lower courts since Ornelas has a two-fold requirement: (1) the
occurrence of an uprising or other violent political disturbance at the time of
the charged offense, and (2) a charged offense that is incidental
to, in the course of, or Ɵin furtherance
of the uprising. Quinn, 783 F.2d at 797 (citations omitted). The Ninth Circuit acknowledged that the incidence
test has been criticized as underinclusive because it exempts
all offenses that are not contemporaneous with an uprising even
thought the acts may represent legitimate political resistance. Id. at 797-98. This test
also has been criticized as overly broad by making non-extraditable
some offenses that are not of a political character merely because
the crimes took place contemporaneously with an uprising. Id at 798.
Despite this criticism, Quinn concluded that, properly applied,
the American test in its present form remains not only workable, but
desirable. Id at 801. Noting the recent lack of consensus among United States
courts confronted with requests for the extradition of those accused of violent
political acts committed outside the context of an organized military
conflict, id at 803, the Ninth Circuit rejected new restrictions
imposed by the Seventh Circuit in Eain v. Wilkes, 641 F.2d 504 (7th Cir.
1981), cert denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981)
(affirming the extradition to Israel of a PLO member accused of exploding a
bomb in Israel that killed and injured civilians). Those restrictions redefined
an uprising as a struggle between organized, non-dispersed
military forces, considered the legitimacy of the political objectives, and
excluded violent acts against civilians. [FN4] Instead, according to the Ninth
Circuit, the incidence test is ideologically
neutral and applies regardless of the tactics used. Id at 804.
It is the fact that the insurgents are seeking to change their
governments that makes the political offense exception applicable, not their
reasons for wishing to do so or the nature of the acts by which they hope to
accomplish that task. Id at 804-05. FN4. To the extent that it adopted some of the
Eain analysis, Quinn also rejected the approach of In re Doherty, 599 F.Supp. 270
(S.D.N.Y.1984), which denied extradition to the United Kingdom of a member of
the Provisional Irish Republican Army accused of attacking a convoy of British
soldiers in Northern Ireland, Nevertheless, while protecting acts of domestic violence
in connection with a struggle for political self-determination, this
test was not intended to and does not protect acts of international
terrorism. Id. at 806. Crimes against humanity also are beyond the
scope of the political offense exception. Id at 801. In addition, the applicability
of the incidence test to government officials and
international conflicts is questionable. Id. at 808, n. 33. Based on this interpretation of the incidence
test, the Ninth Circuit refused to extradite Quinn, an Irish-American,
to Great Britain for conspiring with the Provisional Irish Republican Army
(PIRA) to cause letter bomb explosions in London and the
murder of a British police constable seeking to apprehend him for that offense.
It found that criminal activity by the PIRA in Northern Ireland, with
the objective of separating Northern Ireland from the United Kingdom and
reuniting the northern and southern parts of Ireland,
clearly would fall within the political offense exception,
but not PIRA criminal activity exported to other locations.
Id.
at 812, 814-15. Not only was the level of violence outside Northern Ireland
insufficient in itself to constitute an uprising,
[FN5] but also an uprising refers to a people rising up,
in their own land, against [*931] the government of that land.
Id at 814. The Ninth Circuit was unwilling to stretch the term
uprising to include acts that took place in England as part
of a struggle by nationals of Northern Ireland to change the form of government
in their own land. Id at 814. [FN6] FN5. Judge Fletcher, although concurring in
the result to remand, dissented with this portion of the majority opinion. Id. at 820. FN6. Applying the political offense exception,
several earlier decisions by United States courts beginning in 1979 denied
extradition of members of the PIRA to the United Kingdom. See In the Matter
of Extradition of Smyth, 61 F.3d 711, 714 (9th Cir.1995), amended 73 F.3d 887
(9th Cir.1995), cert denied 518 U.S. 1022, 116 S.Ct. 2558, 135 L.Ed.2d 1076
(1996) (listing decisions). These decisions raised the ire of both the British
government, which condemned the decisions as condoning terrorism, and the
United States Departments of Justice and State, which feared that such
decisions would have an adverse effect on law enforcement and foreign
relations. Id. As a result, the United States and the United Kingdom adopted a
Supplementary Treaty of June 25, 1985 (ratified July 17, 1986) in an effort to
resolve increasing tensions arising from a series of extradition decisions by
United States courts. Id. The Supplementary Treaty, among other changes, limits
the scope of the political offense exception. Quinn would be extraditable under
the revised extradition treaty between the United States and the United
Kingdom. III. Application of the Incidence Test Given the close political and legal similarities between Canada
and the United States, it seems antithetical to ever deny extradition to Canada
based on the political offense exception. Unlike some other countries, Canada
can hardly be characterized as an unjust or oppressive nation where defendants
may be subjected to unfair trials and punishments because of their political
opinions. Nevertheless, the Extradition Treaty contains the political offense
exception, and defendant is entitled to seek its protection. Neither the crimes for which defendant was convicted nor his
parole violation constitute pure political offenses. Defendant was convicted of
the common crimes of illegal weapon possession and endangering lives by
discharging a weapon and is accused of violating his parole by leaving Canada
without permission. These crimes do not fall in the same category as treason, sedition
and espionage. Instead, defendants crimes and parole violation fall
into the category of relative political offenses. Therefore, this court must
apply the incidence test. A. Incidental to The second component of the incidence test,
that the charged offenses be incidental to, in the course of, or in
furtherance of an uprising or violent political disturbance, is easy
to analyze in this case. The Ninth Circuit applies a rather liberal
standard of nexus. Quinn, 783 F.2d at 809. Under this standard,
neither proof of the potential or actual effectiveness of the actions
in achieving the groups political ends, nor proof of the motive of
the accused, or the requesting nation, is required. Nor is the organization or
hierarchy of the uprising group or the accuseds membership in any
such group determinative. Id (citations omitted). This requirement
must be applied in an objective, non-judgmental manner and
may include attacks on civilian targets. Id at 810. All that the
courts should do is determine whether the conduct is related to or connected
with the insurgent activity. Id. Assuming that the Lake Gustafsen incident was an
uprising or violent political disturbance, then the
incidental to requirement is easily satisfied in this case.
Defendant is not only accused, but convicted, of two offenses which occurred
during the Lake Gustafsen incident and which are directly related to the armed
confrontation with the RCMP. He also proudly admits that he was a member of the
insurgent group which defended the encampment to achieve a political end,
namely sovereignty of native people over sacred tribal land. His later parole
violation for which Canada seeks extradition is based upon his earlier
convictions and therefore also is incidental to the Lake
Gustafsen incident. [*932] B. Uprising In contrast, the first component of the incidence
test, requiring that defendants crimes occur during an
uprising or other violent political disturbance, gives this
court pause. Id. at 797. The political disturbance must be related to
the struggle of individuals to alter or abolish the existing government in
their country and is both temporally and spatially
limited. Id. at 817. It includes political acts when a
certain level of violence exists and when those engaged in that violence are
seeking to accomplish a particular objective and excludes
political acts that involve less fundamental efforts to accomplish
change or that do not attract sufficient adherents to create the requisite
amount of turmoil. Id at 807. In other words, it limits the
political offense exception to its historic purpose of
protecting those engaged in internal or domestic struggles over the
form or composition of their own government, including, of course, struggles to
displace an occupying power. Id. Simply put, it refers to a
people rising up, in their own land, against the government of that
land. Id. at 813 (emphasis in original). Applying that standard, no
uprising occurs when a PLO member enters Israel and commits unlawful acts.
The plain fact is that the Israelis are not engaged in revolutionary
activity directed against their own government. They are not seeking to change
its form, structure, or composition through violent means. Id. at 807. The crime for which Canada seeks extradition is a parole violation
based on defendants change of residence to the United States without
permission. That crime clearly was not committed as part of any
uprising or other violent political disturbance. However,
defendants move to the United States constitutes a crime only because
he was previously convicted and sentenced for crimes committed during the Lake
Gustafsen incident. Therefore, the parole violation is inextricably intertwined
with the previous crimes. The fact that defendant came to the United States
after his convictions and partial service of his sentence places him in
substantially the same position as if he had fled Canada before his convictions
or after escaping from prison. Defendant characterizes the Lake Gustafsen incident as a part of a
1995 uprising based on the resistance of native people to the dispossession of
their lands dating back to the beginning of European colonialism in 1492. That
resistance movement includes such modern-day confrontations as the fish-ins
in Washington state in the late 1960s, the incident at Wounded Knee
in 1973, the civil war on the Pine Ridge reservation in South Dakota in the
mid-1970s, the arrest, extradition, and conviction of Leonard Peltier
for the deaths of two FBI agents at the Pine Ridge reservation, the armed
confrontation at Anicinabe Park in Kenora, Ontario, in 1974, the Oka crisis of
1990, and the Peigan Lonefighters stand in southern Alberta in 1990. In his lengthy and partisan discourse dated September 12, 2000,
Anthony James Hall, an Associate Professor of Native American Studies at the
University of Lethbridge, Alberta, Canada, describes the political nature of
defendants conduct in the context of a larger uprising of native people
seeking sovereignty, protection from genocide, and recognition of
jurisdictional claims. Defendants Exhibit H. He concludes that: the charges and conviction placed on
[defendant] were manifestly of a political character. Indeed, the inter-related
standoffs at Ipperwash and Gustafsen Lake became extremely charged political
events, where the police, the military and many of the media reporters covering
the event became ensnared in a complex web of inter-connected political agenda. Id. at 2. From defendants viewpoint, the Lake Gustafsen incident
was not only an attempt [*933] to displace an occupying power from sacred tribal
burial ground, but also was part of a larger uprising in the summer of 1995 in
Canada seeking sovereignty by indigenous peoples over their unceded lands.
Whereas Canada and the provincial governments desired to continue negotiations
with the tribal chiefs to resolve the issue of unceded lands, the
Tspeten Defenders viewed the tribal chiefs as government collaborators
and desired to move the land claims and other issues to an international arena
with a third-party resolution process. See Defendants Exhibit L-1 to
L-5. In contrast, the government characterizes the Lake Gustafsen
incident as simply a land dispute without the requisite level of violence or
number of adherents necessary to rise to the level of an uprising for the
political offense exception. The Canadian government has submitted no evidence
concerning the events of the summer of 1995 and the United States government
submits only the Declaration of Paul Saxton of the United States Department of
State (Office Director for the Office of Canadian Affairs, Bureau of Western
Hemisphere Affairs), stating that [i]n the view of the Department of
State, there was no violent political disturbance of such a degree as to
constitute a civil war, violent insurrection, revolution or rebellion in Canada
in 1995. The government also contends that defendant and his group
had no intention to alter or abolish the Canadian political system. Defendants crimes at Lake Gustafsen do not fall in the
extraditable category of crimes against humanity, acts of international
terrorism, or purely personal non-political acts of violence. Nor, as defendant
readily concedes, were the events at Lake Gustafsen part of a civil war or
revolution, in the sense of the Civil War in the United States or the Mexican
revolution. Although defendant and the other Tspeten Defenders deeply
distrusted the political and judicial leadership of the Canadian government, as
well as their own tribal leaders whom they rejected as government
collaborators, and were dissatisfied with the on-going treaty process, they did
not seek to overthrow the entire Canadian government. This court has not been
provided with any written ultimatum or demand by the Tspeten
Defenders, but it is clear that they occupied tribal lands to achieve the
political goal of achieving native sovereignty over those lands. In his
summation at his trial on April 25, 1997, defendant expressed a desire not only
for an independent third party resolution process, as sought in
Clarks petition, but also for sovereignty: It is my duty to our ancestors to maintain our
stolen lands and keep these traditions for the benefit of present and future
generations
We still have our sovereign nations
The First
Nations do not want the DIA [Department of Indian Affairs] to have control over
us any more. We are talking about sovereignty for our people and lands. * * * * * * Most of our people here are involved in
movements: they seek freedom. The right to maintain their identity and live on
their land and to break free from the chains of colonialism. We know that our
future survival depends on our present abilities to secure not only our lands,
but also the recognition of our inherent right of self-rule. * * * * * * [T]he only real opportunity for first nations
peoples to start on the road to recovery is to persuade the Canadian public and
governments to respect us and our lands not just as individuals but as distinct
peoples with traditional territories that is [sic] still rich with natural
resources. * * * * * * The Canadian legal system, it does not work
for us, all my people seek is Freedom, the opportunity and capacity to exercise
our inherent jurisdiction and [*934] self-governing and Justice within our
traditional territories. * * * * * * Sovereignty is the issue, Canadas
the problem. Honour the Royal Proclamation of 1763. Defendants Exhibit L-3, L-4, & L-5. The Lake Gustafsen incident falls somewhere along the spectrum
between nonextraditable crimes committed during a civil war intended to
overthrow the government, and extraditable crimes committed during lesser forms
of conflict. The definition of a political offense of necessity must be
flexible given the changing modes of resistance to political oppression. In a
modern industrial state, political opposition takes many forms, including
attempts to rouse the populace from apathy to action. The challenge for the
courts is to draw the line between greater and lesser forms of conflict without
according weight to the political undesirability of the person sought to be
extradited, the atrocity of the crime, or the political climate of the moment. Because defining a political offense is itself a
political act, changing with the nature of the extraditing nations
foreign relations and treaties, this court must take into account the
views of the United States State Department. Ahmad v. Wigen, 726 F.Supp. 389, 402
(E.D.N.Y.1989), affƠd 910 F.2d 1063 (2nd Cir.1990); Eain, 641 F.2d at
515 (Even though we do not leave sole determination to the Executive
branch, we believe its views are entitled to great weight in extradition
mattersƢ). Here the State Department has taken the position that the
Lake Gustafsen incident was not a violent political disturbance of
such a degree as to constitute a civil war, violent insurrection, revolution or
rebellion in Canada in 1995. However, that position not only is
conclusory without any supporting facts, but also fails to fully address the
Ninth Circuits incidence test. Although Quinn
requires a certain level of violence for the uprising
component, it does not define that level of violence solely as a
civil war, violent insurrection, revolution or rebellion. Harking back to the language in Quinn, the political
offense exception protects a people rising up, in their own land,
against the government of that land. Quinn, 783 F.2d at 813 (emphasis
in original). The uprising must be both temporally and spatially
limited and involve a certain level of violence
by those seeking to accomplish a particular objective. Id. at 807, 817. The
Lake Gustafsen incident easily satisfies many of these criteria. The Lake Gustafsen incident involved indigenous people rising up
in their own land against the government of that land. Although the crimes were
committed while trespassing and occupying private property, the type of
property occupied makes this case unique. James acquired title to the land
through the Canadian government, but his land included tribal land over which
native people believed they had a valid legal claim. Thus, the protest by the
Tspeten Defenders was directed largely against the Canadian
government which had granted title to James, not against James. In addition,
the violence was aimed not at James, but at the Canadian government and its
military forces. Furthermore, the Lake Gustafsen incident was temporally and
spatially limited and sought to accomplish a particular objective. The actions
by defendant and other activists in 1995 clearly played a role in prompting
Canada and British Columbia in 1996 to begin intensive negotiations with more
than 40 Indian councils and nations. As a result of the negotiations, the
Nisgaa tribe received fishing and forestry rights as well as the
ability to set up its own government, policing, and courts. Those treaty
negotiations may not have occurred or been successful without the impetus
provided by the Lake Gustafsen incident and other incidents by native people
during the summer of 1995. [*935] However, the level of violence must be sufficient to invoke
the political offense exception. Arguing that the level of violence is not
sufficient, the government first points to the fact that the encampment did not
begin as a violent event. Nevertheless, what began as a non-violent occupation
escalated into a violent confrontation because the Tspeten Defenders
were heavily armed and used those arms to fend off a military siege to
accomplish their particular objective. Whether the insurgents or the government
initiated the violence is not critical to application of the political offense
exception. One court has limited the political offense exception to
a violent political disturbance of such a degree as to constitute in
effect a state of civil war. Ahmad, 726 F.Supp. at 408.
However, that standard is different than set forth by the Ninth Circuit in Quinn and appears to be
aimed at narrowing the political offense exception to exclude crimes committed
against civilians. In any event, Ahmad found that in April 1986 when the
accused firebombed and fired automatic weapons against a passenger bus in
territory occupied by Israel, the occupied territory was relatively peaceful,
in contrast to the violence of the Intifada beginning in December 1987: There was no indication of violence, except
for that attributed to petitioner, at the time and place where the events
occurred. General opposition of the population of the territory to the
occupation and the desire to terminate it is far removed from the endemic and
widespread violence required to establish a political offense exception for
murder. Sporadic acts of violence cannot justify
deliberately waylaying a civilian bus
Id. at 409. In contrast, the Lake Gustafsen standoff was not just an isolated
violent disturbance, but occurred in a summer full of disputes
between aboriginals and police across Canada. Defendants
Exhibit F. At the same time as the Lake Gustafsen incident, a similar incident
was occurring at Ipperwash in Ontario and other lesser acts of violence, such
as road blockades, were occurring elsewhere across Canada. It is not clear to
this court what precipitated the violent events of the summer of 1995 between
the native people and the Canadian government, but they were inter-related.
Native people from multiple tribes undertook simultaneous, if not coordinated,
action in defense of their unceded lands and in defense of their people on more
than one front by petitioning the Queen of England, setting up armed
encampments, creating a supply network with other tribes, overtaking a Canadian
military base, and taking control of large areas of land. Although the violence
of the summer of 1995 did not rise to the level of a civil war, that is not the
test for an uprising sufficient to invoke the political
offense exception. The seriousness of the challenge to Canadian jurisdiction over
unceded tribal lands is evidenced by the fact that large military forces were
deemed necessary to suppress the challenge. According to the submission by
Professor Hall, Canada has called its army into domestic conflicts only three
times since World War II:(1) 1970 during a matter involving the Quebec
independence movement: (2) 1990 during the Oka conflict; and (3) 1995 at Lake
Gustafsen. Defendants Exhibit H, p. 7. In fact, defendant claims, and
the government has not disputed, that the Lake Gustafsen standoff escalated
into the largest Canadian police or military operation on land since the Korean
War. In addition, defendant has submitted uncontradicted evidence that the
Canadian government engaged in a smear and disinformation campaign to prevent
the media from learning and publicizing the true extent and political nature of
the events. Given that the level of violence is sufficient to invoke the
political offense exception, the key to defendants extradition is
whether his political acts involve less fundamental efforts to
accomplish change or do not attract sufficient adherents to
create [*936] the requisite amount of turmoil. Quinn, 783 F.2d at 807. The Lake Gustafsen standoff involved more than just the 18 native
people who surrendered and were convicted of various crimes. Although the
number at the encampment was small, perhaps around 40 at the most, support came
from an unspecified number of native and non-native organizations and
individuals. See Defendants Exhibits I & J. Clearly not all
native people supported the defense of the encampment at Lake Gustafsen. Organized
tribal governments went on record opposing it, and the Tspeten
Defenders did not purport to represent the majority of native people. However, it is far from clear how many adherents to a rebel
movement are required to invoke the protection of the political offense
exception. This court has found little guidance in the American case law, and
has found only one case from Canada touching upon this issue. After analyzing
British and American cases, including Quinn, Gil v. Canada, 1994 Can F C LEXIS
171, 1 Can F C 508 (Fed Ct of Canada, Court of Appeal, Montreal, 1995), applied
the incidence test to an Iranian citizen who, during 1980
and 1981, joined an underground student group and became involved with a larger
militant group of anti-Khomeini activists in bombing and arson incidents
directed against wealthy supporters of the regime. The court concluded that the
first component of the incidence test was met because
Iran was a turbulent society in which a number of armed groups were
in conflict with the Khomeini regime. Id., 1994 Can F C LEXIS
at 53-54, 1 Can F C at 533. However, it allowed extradition for failure to meet
the second component of the incidence test because the
attacks were not carried out against armed adversaries. In comparison, defendant also joined a militant group of activists
seeking to oust Canadian control of tribal lands. Other armed (and presumably
unarmed) native groups also were engaged in the same conflict during the summer
of 1995, although apparently not to the same extent as the anti-Khomeini
activists, and were met with armed government resistance. This court recognizes that Canada has extradited a Native American
activist to the United States for crimes committed in the United States. [FN7]
Leonard Peltier was a prominent leaders of the American Indian Movement
(AIM), an organization dedicated to encourage
self-determination among American Indians and to establish international
recognition of American Indian treaty rights. Privitera, John J.,
Toward a Remedy for International Extradition by Fraud: The Case of
Leonard Peltier, 22 YALE LAW & POLICY REVIEW 49, p. 50 (1963) (
Privitera). He fled to Canada after being charged with the
murder of two FBI agents at the Pine Ridge Reservation in South Dakota in 1975.
The Canadian tribunal ruled that Peltier should be extradited to the United
States, to a large extent on the basis of what subsequently turned out to be
false affidavits. United States v. Peltier, 585 F.2d 314, 335 (8th Cir1978), cert
denied 440 U.S. 945, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979). He sought review by
the Canadian Minister of Justice on the basis that he was being extradited for
a political offense, but the Minister refused relief. Privitera, at 52- 53.
Unfortunately, this court has been unable to determine why Canada deemed the
political offense exception inapplicable. However, the context of the
Peltiers crimes differs markedly from that of defendants crimes.
In an effort to alleviate conflict between those members of the Pine Ridge
Reservation who supported the tribal government and those who supported AIM,
the tribal elders had invited [*937] Peltier and other AIM members to stay
at the reservation. Peltier, 585 F.2d at 318. Two FBI agents entered the
reservation to locate and arrest four individuals who were charged with armed
robbery and assault. Id. The murders of the FBI agents clearly were not
committed as part of a direct confrontation against the government for
political reasons. Thus, it is not surprising that Peltier was unable to invoke
the political offense exception to prevent extradition. FN7. Another Native American activist, Robert
Satiacum (hereditary Chief of the Puyallup Indians), escaped to Canada after
being convicted of various crimes in the United States. He obtained asylum in
Canada as a refugee. Satiacum v. Canada, 7 Imm L R 2d 178 (Imm App Bd, July
10, 1987). As Quinn noted, not all offenses are political offenses, even if
committed for a political reason. To qualify for the political offense
exception, insurgents must direct their offense against the state to
change their governments, Quinn, 783 F.2d at 804, or to
alter or abolish the existing government in their country. Id at 817.
Defendant and the Tspeten Defenders were not seeking to abolish the
Canadian government and replace it with their own, or even to fundamentally
alter the Canadian government. Instead, they sought to establish sovereignty
over, and to displace the Canadian government, from their tribal lands. In a very fundamental sense, the Lake Gustafsen incident is
analogous to other separatist movements around the world, including the PIRA in
Ireland, the Tamils in Sri Lanka, the Basques in Spain, as well as various
insurrections in Eastern Europe and Africa. All are violent efforts by
indigenous people to overthrow an occupying government in an effort to achieve
self-rule. Similarly, the Lake Gustafsen incident involved an organized group of
native people rising up in their homeland against the occupation by the
government of Canada of their sacred and unceded tribal land. They sought to
regain sovereignty by ousting the occupation and control of the Canadian
government to those lands. If the Quebec separatist movement in Canada resorted
to violence, then it could easily fall into the same category. Quebec
separatists do not seek to abolish the government of Canada, but instead seek
to displace the Canadian government from controlling Quebec, just as defendant
and others involved in the events of the summer of 1995 sought to displace
control of the Canadian government over unceded tribal lands. As the government argues, the Lake Gustafsen incident and other
incidents during the summer of 1995 were directed against a governmental policy
regarding title to unceded aboriginal land. However, to characterize the
Tspeten Defenders as engaged in a mere land dispute or disagreement
with government policy is to trivialize the nature of the controversy. Control
over land is one of the primary reasons for the existence of a government and
often is the cause of wars between nations. Given its substantial economic
consequences, the aboriginal land title question in Canada clearly is a highly
charged issue for both native and non-native people. The Lake Gustafsen incident may be easily contrasted with the
sit-ins and other protests on college campuses and
elsewhere which protested the military involvement of the United States
government in Vietnam in the 1960s and 1970s in this
country. A sizeable segment of the population opposed the Vietnam War and
engaged in peaceful protests, some of which turned violent, most notably at
Kent State in Ohio. Those protests were not aimed at abolishing the United
States government or altering citizens political relationship with
the government, but at changing its foreign policy. Crimes committed during
such protests can not be characterized as non-extraditable political offenses
under Quinn. Here, in contrast, defendant and the Tspeten Defenders
were attempting to alter their political relationship with the Canadian
government by regaining the right of self-government over their own lands. Crimes committed during the Civil Rights Movement of the
1960s and 1970s in the United States also provide a close,
but not precise analogy. African-Americans did not advocate for a separate
nation, but worked within the system to enforce existing laws and to pass [*938]
new legislation guaranteeing their equal rights. Therefore, their crimes would
not be protected by the political offense exception. In contrast, defendant and
the Tspeten Defenders were advocating for self-determination over
unceded tribal lands. The Lake Gustafsen incident was not an isolated violent incident
incited by a mere handful of insurgents, as contended by the government.
Instead, according to the evidence submitted by defendant, it was part of a
broader protest in 1995 aimed at the Canadian government in support of
sovereignty by the native people over their land. The trespassing dispute was
an opportunity for the native people to affirm their sovereignty against the
Canadian government, which, if successful, could have dramatically altered the
political landscape of Canada. As the sentencing judge readily acknowledged,
the Lake Gustafsen incident began as a form of civil protest that crossed the
line into criminal activity. Governments Exhibit C, p. 24. In fact,
it appears that had the judge allowed the colour of right
defense, then defendant may well have been acquitted. Defendants
Exhibit L-14. The colour of right defense is available to a
person who truly believes that he is acting within the law and was used to
acquit many of those charged in the Ipperwash incident. Defendants
Exhibit L-10. Although Canada seeks defendants return only for a
parole violation, this court concludes that defendants crimes for
which he was convicted and later paroled were of a political
character and therefore may not provide the basis for extradition of
defendant to Canada. Extradition Treaty, Art. IV(1)(iii). ORDER For the foregoing reasons, the governments request for
extradition is denied and the Complaint is dismissed. |