2.1 Settler Sovereignty and Thinking Jurisdictionally

At the level of the nation-state, the “default scalar setting” (Valverde Reference Valverde2009) of much criminological and socio-legal research, the resonance of this bi-national, cross-border law enforcement program with the expansive processes and tensions of globalization and securitization is striking. Shiprider seems to provide a rather straightforward example of emergent and interconnected transnational security arrangements that are beginning to escape “from their earlier frame within distinctive national regimes” (Walters Reference Walters2009, 2; see also Sheptycki Reference Sheptycki2000; Sassen Reference Sassen2008; Walker Reference Walker and Newburn2008). Canadian critics have therefore warned that Shiprider extends and connects the crime and security mandates of Canada and the US, representing a significant threat to Canadian national sovereignty and raising troubling questions about accountability, privacy, and information sharing, due process and civil rights (Gilbert Reference Gilbert2007, Reference Gilbert2018; Kitchen and Rygiel Reference Kitchen, Rygiel, Beare, Des Rosiers and Deshman2015).^{Footnote 3} These are certainly important concerns. However much would be missed if the analysis were to end here.

This study scales down its focus to bring into view the significance of Shiprider in relation to the multiple and contested sovereignties in the local terrain of Akwesasne. This approach leads us to think carefully about jurisdiction.^{Footnote 4} As carefully argued by Audra Simpson, smuggling has long provided the opportunity for the assertion, defence, and contestation of different versions of sovereignty through the deployment of jurisdiction (Simpson Reference Simpson2008).

As exclaimed by one USCG officer, “I think… pretty cool, like to me… how we legally do that is pretty amazing to me. Like, wow, you’re letting a foreign—they’re really not a foreign law enforcement officer at that point right, they’re a [Canadian] peace officer—but I mean you’re foreign law enforcement…arresting someone in a foreign country… holy cow, that’s kinda crazy… but we—both countries have agreed that’s okay” (Shiprider Officer Interview 2017a).

This question of “how we legally do that?” is at heart a question of jurisdiction. As a legal technicality, jurisdiction brackets, sorts, and organizes legal authorities by placing limits on the scope of each authority’s power (Valverde Reference Valverde2015, 83). But jurisdiction is not strictly a technical legal matter, nor is it simply an abstract or descriptive concept. Instead, jurisdiction “actively works to produce something” (Dorsett and McVeigh Reference Dorsett, McVeigh and McVeigh2007, 7). Jurisdiction is a performative and productive technology that asserts, as expressed by Shaunnagh Dorsett and Shaun McVeigh, “the power and authority to speak in the name of the law” (2007, 5). The use of the word “craft” in the title of this paper invokes the productive effects of technologies of jurisdiction. As clarified further by Shiri Pasternak, the view of jurisdiction as a “technology” not only speaks to technique, but also signifies the Greek têchné or “craft” (Pasternak Reference Pasternak2014). It is in this much fuller sense that Shiprider re-crafts jurisdiction, by re-configuring the practices that produce what Lisa Ford would describe as the legal trinity of the settler nation statehood: jurisdiction, sovereignty, and territory (L. Ford Reference Ford2011).

As noted by Henry Jones (Reference Jones2016), and following Stuart Elden (Reference Elden2013), jurisdictional practices are practices of territory, and the sea is where international law pioneered its practices of territorialisation (Jones Reference Jones2016, 342; see also Benton Reference Benton2010, Mawani Reference Mawani2018). As “moving ship[s],” Shiprider vessels are certainly engaged in the juridification (Grotius 1609, in Mawani Reference Mawani2018, 32) of the Kaniatarowano’on:we (St. Lawrence River), and Shiprider’s deployments of jurisdictional practices in the marinescapes of Akwesasne work to materialize the territories of not just one, but two settler colonial nation states. Interestingly, Shiprider continues this pioneering work of empire in internal and coastal waters, where the usual binaries that pit the open and free space of the sea against land as the fixed and regulated space of territorial sovereignty are muddied.

Further, these practices of territory are incomplete because of the ongoing contestations over sovereignty in internal waters. Akwesasne represents what Pasternak might describe as an unruly “lump” in the tangled and uneven patchwork of imperial territorial control (Pasternak Reference Pasternak2014, 148). In the waterways that flow through Akwesasne, the politics at play have proven irrepressible, the refusals of the Mohawk people (Kanien’kehá:ka) have been strenuous, and, to the dismay of the Shiprider officers with whom we spoke, Shiprider patrols in Akwesasne have, at least for the time being, been interrupted. Colonialism continues to exist, but is also incomplete (Simpson Reference Simpson2014,7). From this perspective, Shiprider’s patrols in Akwesasne have, to some degree, fuelled and fortified ongoing Mohawk (Kanien’kehá:ka) refusals and assertions of sovereignty, “within multiple sovereignties” (Simpson Reference Simpson2014, 187).^{Footnote 5}

2.2 Taking the Water Seriously

In addition to signalling the productive effects of jurisdictional practices, the use of the word “craft” in the title of this paper also directs specific attention to the water and the distinctiveness of the marine environment. To think jurisdictionally about Shiprider and maritime law enforcement, it is necessary to take the materiality of the water seriously because, as explained by Philip Steinberg, “…it is a space that is constituted by and constitutive of movement” (Steinberg Reference Steinberg2013, 165). Both the story of the I’m Alone, to which we turn next, and the emergence of Shiprider display the challenges of how to draw jurisdictional lines in the water, where, as put by Jones, “the certainty of the law’s enunciation conflicts with the uncertainty of the world that it seeks to regulate” (Jones Reference Jones2016, 320; see also Dickinson Reference Dickinson1926, Steinberg and Peters Reference Steinberg and Peters2015, Elden Reference Elden2017). Shiprider’s novel reconfiguration and deployment of jurisdictional practices are shaped by the fluidity and mobility of the water in ways that disconnect authority from territory and transform sovereign authority while on the move.

The encouragement to “get wet” (Jones Reference Jones2016) in the study of maritime jurisdictional practices also directs attention to what Stuart Elden (Reference Elden2017) might call “the terrain” of maritime enforcement, where the geopolitical and the geophysical meet. To take the water seriously, we need to recognize that its materiality is not only physical but also social; it is imbued with “culture, language, imagination, memory” (Dale Reference Dale2005, 652). In the terrain of Akwesasne, “the river is the history and heart of the Mohawk people” (Hambleton Reference Hambleton2016); its materiality is deeply connected to the lives and histories of the Mohawk (Kanien’kehá:ka) and Haudenosaunee people.^{Footnote 6}

3.1 The Jurisdictional Tango

In the extensive diplomatic and legal wrangling that followed the sinking of the I’m Alone, defining jurisdiction and addressing the related issues of the lawfulness of the USCG “hot pursuit” and its use of force involved a bundle of intersecting and conflicting domestic, multi-lateral, and international law and policy regimes, as well as a varied assortment of spatial and temporal practices, technologies, calculations, and specifications (Ricci Reference Ricci2011; Skoglund Reference Skoglund1968). Several domestic and international laws, policies, and multi-national treaties came into play in the effort to draw the lines of jurisdiction in the water. First, the U.S. National Prohibition Act of 1919—known also as the Volstead Act—prohibited the manufacture, sale, exportation, or importation of alcohol into the United States or its territorial waters. Second, the U.S. Tariff Act of 1922 extended US jurisdiction beyond its territorial waters allowing the search of vessels within four leagues (twelve nautical miles) of the shore to enforce import-export laws. In 1923, this extension of territorial jurisdiction was written into the USCG’s Instructions, Customs, Navigation and Motor Boat Laws and Duties of Boarding Officers, which gave its officers the right to board, inspect, and examine any foreign vessel within twelve nautical miles of the coast and to “use all necessary force to compel compliance…” (Ricci Reference Ricci2011, 7). These regulations stipulated that there is no such authority beyond twelve nautical miles from the coast “except in cases covered by special treaties” (ibid). Third, and most controversial, were the terms of the 1924 Convention signed by the United States and Great Britain and agreed to by Canada. This Convention permitted the United States to halt and search British vessels within the distance from shore that the suspected vessel could “traverse” in one hour—hence its informal name—the “one hour’s distance” treaty (Skoglund Reference Skoglund1968). This indefinite spatio-temporal measure depended of course on how fast and how far a fleeing vessel could sail, calculations which occasioned protracted discussions about space, time, distance, speed, technology, wind, water, and topography.^{Footnote 8}

The jurisdictional moves effected through the US Tariff Act of 1922 and the 1924 Convention were shaped by the binary that contrasts land and sea as inside and outside, as territorial and extra-territorial, as controlled and free. Applying “the principle of extraterritorial jurisdiction to insure territorial security” (Dickinson Reference Dickinson1926, 27), these legal reforms effectively extended American sovereign authority over its territorial sea beyond the three-mile limit set at the time by the customary international doctrine of Freedom of the Seas (Mare Liberum) developed by Hugo Grotius in 1609. This three-mile limit had its own interesting though not uncomplicated genesis: the “cannon shot rule” provided that the coastal state claimed jurisdiction over the distance of coastal waters that it could control by firing a metaphorical cannon (Kent Reference Kent1954).

In the early twentieth century, certain maritime legal scholars argued for a more flexible, principled approach to maritime jurisdiction rather than a “mechanical” effort to create “a complicated system of special jurisdictional zones” (Dickinson Reference Dickinson1926, 28). As explained by Edwin Dickinson, the physical materiality of the water requires a different approach to jurisdiction than that which applies on land: “It is futile to strive for simplicity or certainty, or uniformity with respect to a subject whose essential nature is such that it cannot be so confined” (Dickinson Reference Dickinson1926, 27). However, the striation approach to maritime jurisdiction would remain dominant, and it later shaped the more complicated scheme of different maritime jurisdictional zones for different purposes that was inscribed in the 1982 United Nations Convention on the Law of the Sea (UNCLOS), that persists today. UNCLOS settled the limit of coastal territorial waters at twelve nautical miles (twenty-two kilometres; fourteen miles) (Art. 3), while preserving the right of innocent passage to all ships through territorial waters (Art. 17). This zone, which is now accepted by most countries, effectively territorializes water by making it into a bounded space under the control of a people (see Jones Reference Jones2016, 333). UNCLOS created a range of zones beyond the territorial zone, including twelve nautical miles of the contiguous zone, 200 nautical miles of the Exclusive Economic Zone, and the Continental shelf. Beyond these zones, which represent for Steinberg the “creeping enclosure movement” of the ocean (Steinberg Reference Steinberg2001 in Jones Reference Jones2016, 316), the view of the sea as a smooth and open space of freedom still mostly prevails. According to the concept of “freedom on the high seas,” no nation may lay claim to any portion of the high seas (Art. 89): “The high seas are open to all States, whether coastal or land-locked” (Art. 87).

3.2 Hot Pursuit and Ocean Water Jurisdiction

Even this principle of the freedom of the high seas is limited by certain jurisdictional moves. One of the more complicated steps in the maritime jurisdictional tango of the I’m Alone was the “right of hot pursuit.” At the time of the sinking of the I’m Alone in 1929, this widely accepted custom of international relations was soon to be written into US guidelines, Law Enforcement at Sea Relative to Smuggling (1929), later codified in the 1958 United Nations Convention on the High Seas and eventually incorporated into the UNCLOS. On the high seas, where there is no territorial sovereign, a vessel is essentially deemed to be a detached, free-floating piece of the territory of the country whose flag it flies; it is the flag state—the state in which the vessel is registered—that has exclusive jurisdiction over the vessel (Art. 92). The right of hot pursuit provides an exception to this rule. Basically, this right provides that a coastal state that is not the flag state can give immediate, uninterrupted, and continuous chase through time and space from a point within its territorial waters to a point outside (Art. 111). Whether the USCG had the authority to pursue the I’m Alone in the first place and, if so, whether its pursuit into the high seas met the requirements of a hot pursuit under international doctrine, were the key issues in the arbitration, alongside the slightly separate issue of the lawfulness of the extreme use of force. While it was undisputed that the chase of the I’m Alone had not started within the three mile territorial waters of the United States, the USCG claimed (though this was adamantly rejected by Captain Randell) that the chase had indeed begun within the extended territorial jurisdiction provided by the “one hour’s distance” rule in the 1924 Convention. The American position was that this Convention effectively extended the territorial jurisdiction of the United States for all purposes and that therefore the right of hot pursuit applied. The Canadians disagreed, asserting that the provisions of the 1924 Convention were explicit and unique exceptions that did not “extend the territorial limits of the United States nor confer any general jurisdiction” (Newfoundland Shipwrecks n.d.). Further, there was still some question as to whether the USCG chase was indeed a continuous and uninterrupted hot pursuit as required under international law, as it had been started by the Wolcott and completed 200 miles later in the Gulf of Mexico by the Dexter.

In these contestations of sovereignty, jurisdictional practices aimed to draw lines on the sea to establish, mark, and measure inside and outside. It is therefore totally unsurprising that not one of these more mechanical and legal jurisdictional issues was resolved either through the flurry of diplomatic correspondence between the American and Canadian Secretaries of State at the time, or through the lengthy arbitration that followed. The only clear finding of the final report, issued in 1933 (the very year that prohibition had itself been ended), was that all else aside, the blasting of the I’m Alone to smithereens and the killing of a foreign crewmember in the process was indeed “an unlawful act.” The commission ordered compensation be paid to Captain Randell, his crew, and the family of Leon Mainguy. The United States apologized to his Majesty’s Canadian Government and paid a $25,000 settlement to Canada for the insult to Canadian sovereignty and property loss.^{Footnote 9}

3.3 Rethinking Jurisdiction: The Art of Jurisdictional Separation

While arguably an epic legal flop in its failure to resolve any of the contentious jurisdictional details in dispute, the entire process—the rum running, pursuit, sinking, capture, media coverage, diplomacy, arbitration, even the folk songs—can be read as a series of steps in a long but very effective jurisdictional tango.

Several distinct versions of this jurisdictional tango can be gleaned from the story of the I’m Alone: the conventional, the mobile, and the exceptional. From the three-mile cannon shot rule of international doctrine to the extension of sovereign territorial jurisdiction to twelve nautical miles as effected through the 1922 US Tariff Act and eventually codified in the 1982 UNCLOS, conventional enactments of maritime jurisdiction tightly interweave territory, sovereignty, and authority. Jurisdictional practices map the territorial border in the water as a contiguous line that envelops and reproduces the sovereignty of the nation-state. The mobile version can be seen to apply on the high seas. Sometimes referred to as the last remaining true commons, the high seas admits no territorial sovereigns. Here, jurisdictional practices effectively make vessels into mobile, floating fragments of flag-state territory, thereby reconfiguring but ultimately leaving undisturbed the close connections between territory, sovereignty, and authority and enabling sovereign claims to jurisdiction in ocean waters that exist “beyond the claims of imperial sovereigns” (Mawani Reference Mawani2018, 23). In the exceptional version of the jurisdictional tango enacted through the right of hot pursuit, jurisdictional practices allow, on a purely exceptional basis, sovereignty and authority to travel with the coastal state vessel from a location within its territorial sea to a location on the high seas in one, continuous, uninterrupted journey through time and space. In a sense, jurisdiction is performed as an extended, elasticized, exceptional exercise of territorial sovereign authority over the water.

5.1 And the Dance Goes On

According to the MNCC, the deployment of Shiprider in Akwesasne territory without prior consultation was yet another assault on the sovereignty of the Mohawk Nation (MNCC 2011). However, because Akwesasne is not a fixed and regulated space of territorial sovereignty but is defined by ongoing contestations of multiple sovereignties and jurisdictional complexities, the Mohawk (Kanien’keha:ka) and Haudenosaunee people pushed back against this intrusion, successfully interrupting the rolling out of a full-time Shiprider unit in Akwesasne by forceful assertions of their own sovereign claims to authority over the land and waters of Akwesasne. The RCMP had to concede, in the wake of criticism, vandalism, and even gunfire (Shiprider Officer Interview 2014a), that Shiprider “did not get off to a good start in Akwesasne” (Royal Canadian Mounted Police 2008, 24). Recognizing that they had “made a mistake” (Shiprider Officer Interview 2015a), “since the pilot … we haven’t done anything in that area yet. A lot of outreach and things need to be done before we can go into that area” (Shiprider Officer Interview 2014a).

By early 2015, outreach was underway. The dance of jurisdiction is not a solo performance, and recognizing the potential to leverage at least some measure of control as well as much needed resources, certain members of the elected Mohawk Council of Akwesasne endeavoured to take the lead as the dance played out:

Other members of the local Akwesasne community are unequivocal about their preference to sit this one out. For them, no amount of negotiation, or of resources gained as a result, no assurances of control or outreach by settler authorities in community halls and local hotels can change the fundamental reality that Shiprider is yet another instrument of colonial state violence and territorializing control that criminalizes Indigenous peoples and threatens the ongoing efforts of the Mohawk (Kanien’keha:ka) and Haudenosaunee peoples to defend and maintain their territory (Simpson Reference Simpson2014). As summed up bluntly by one member of the Akwesasne community with whom we spoke in 2016, “the only reason they wanted the Shiprider program was to figure out how they could get the native people” (Akwesasne Community Member Interview 2016).

After some delay, in the summer of 2015, the USCG and RCMP rolled out the long anticipated full-time Shiprider unit on Kaniatarowano’on:we (the St. Lawrence River). However, rather than operating out of Cornwall, Ontario/Messina, New York, directly in and around Kawehno:ke (Cornwall Island) where the mishandled and unwelcome pilot was launched, this Shiprider unit is located at a distance from Akwesasne, up river in Kingston, Ontario/Alexandria Bay, New York. In a move clearly suggestive of the continuing and changing jurisdictional choreography on the river, not only was the location of this Shiprider unit moved up the river, but its patrols have been directed to stay away from Akwesasne: on the Canadian side, they stop at the Moses-Saunders Power Dam about eight kilometers south of Kawehno:ke (Cornwall Island), while in the United States, they do not go past the Eisenhower and Snell Locks on the Wiley-Dondero Canal that provide access to the Kaniatarowano’on:we (the St. Lawrence River). Interestingly, while nothing has been written down, Akwesasne is a “no-go” zone for Shiprider: “No Shiprider operations are occurring on the Akwesasne reservations. Anything west of, or east of, Eisenhower and Snell Lock, no Shiprider activity out there. RCMP has an office up there, the Cornwall RCMP, they do boat operations around reservation territory but… they don’t patrol on the reservation” (Shiprider Officer Interview 2017a).

To the considerable frustration of at least some of its officers, who are deeply committed to the crime-fighting mandate of their job, the St. Lawrence Shiprider patrols are presently confined to that part of the river that flows mostly through cottage country; where recreational water safety—not cross-border smuggling—is the main preoccupation. This, as explained by one Shiprider officer, is bad for law enforcement but good for smugglers: “The smugglers are just taking advantage of the fact that we can’t cross the border or … that something like Shiprider isn’t out there.… I can’t go out and do anything if the, you know, the administration doesn’t support it. So, you know what I mean, we all work for some political entity. So it’s not hard to figure out, it’s political. But Shiprider, out of any, if we could just drop something in there to make it work, Shiprider would be the tool, 100%” (Shiprider Officer Interview 2017a).

The restriction of Shiprider patrols away from Akwesasne is not indicative of a more general winding down of enforcement activities in the marinescapes of Akwesasne. It does, however, display the ever-changing casting and choreography of this jurisdictional dance. Indeed, in the summers of 2016 and 2017, so-called surge operations on the western shoreline of Kaniatarowano’on:we (the St. Lawrence River) across from Akwesasne were carried out involving multiple marine and land enforcement units from two nations, two provinces, one state, three municipalities, two First Nations, as well as the Ontario Ministry of Finance.^{Footnote 14} Notably, despite the use of distinctly militarized language, these surges were largely community outreach exercises designed to both “solidify … partnerships with various law enforcement agencies, both in Canada and the US” (Seebruch Reference Seebruch2017) and establish a “rapport” between Canadian and American enforcement “partners” and local (non-Akwesasne) residents in the interest of enlisting the eyes and ears of members of the community in anti-smuggling and border security policing efforts (RCMP Make Contact 2016).

And, while Akwesasne is out of bounds for Shiprider, the marine unit of the RCMP Cornwall Regional Taskforce patrols the river on the west side of Kawehno:ke (Cornwall Island). The US CBP, the USCG, and local state and tribal enforcement authorities also continue their land and marine patrols on the US side of the international border. While Canadian law enforcement authorities generally stay out of Mohawk Akwesasne territory, US authorities patrol the land and marinescapes of the St. Regis Reservation at will. Although they say they are careful in their interactions with Mohawk (Kanien’keha:ka) community members, the US CBP is firm that this is “their” territory and “their” jurisdiction (CBP Officer Interview 2017).

New dance partners and new resources are also emerging in Akwesasne. For example, in December 2017, it was announced that AMPS will receive provincial funding for the SAVE Unit (the Snowmobile, All-Terrain vehicle and Vessel Enforcement unit). As an anti-smuggling measure, and working in close collaboration with the RCMP and other settler enforcement agencies, SAVE will patrol both land and waterways along that portion of the international border that crosses through Akwesasne Mohawk territory (Hale Reference Hale2017). In January 2018, the federal government announced an infusion of $291 million dollars into 450 Indigenous communities to fund their police forces over the next five years. The Grand Chief of Akwesasne reportedly hopes to use the funding to create a fully functioning marine unit (Molina Reference Molina2018).^{Footnote 15}

In sum, while Shiprider has for the time being moved to the wings of the jurisdictional stage, the jurisdictional performance in the waterways that flow through and around the “high risk zone” of Akwesasne continues. The imperial vision of an empire of uniformity is betrayed by Akwesasne. By “getting wet” and engaging with the social materiality of the water in Akwesasne, we see that this is indeed a deeply “differentiated legal zone” that displays the partiality and unevenness of settler sovereignty.