The evidence is in, but four men charged in connection with a smoke shop that sold cut-rate cigarettes will have to wait a couple of months to find out if they’ll be found guilty or acquitted.
As their trial drew to a close on Monday, Dakota Plains First Nation Chief Orville Smoke said the smoke shop was his idea.
“If anything, the idea was coming from myself, not the (other) people who are charged in this room,” Smoke said in Brandon provincial court as he called himself as a witness.
“I simply tried to create the revenue to enhance the living standards of my people — the health, education and the welfare — and I end up in court being charged.”
Smoke is one of four Dakota men who are on trial for various offences under the provincial Tax Administration and Miscellaneous Taxes Act.
The trial began in September and has continued in segments on different dates since.
Manitoba Finance investigators testified that they seized tens of thousands of cut-rate cigarettes from the Dakota Chundee Smoke Shop which stood on non-reserve land near Pipestone.
Court heard cigarettes weren’t marked for tax purposes in Manitoba, as required to show that provincial tobacco tax had been collected.
The series of raids were made between November 2011 and March 2012.
Court was also told that Smoke and co-accused Frank Brown (then Canupawakpa Dakota Nation chief) owned the smoke shop property, but they didn’t have the required sales tax authorization. They also didn’t have a dealer’s licence to sell tobacco.
The Crown has alleged that co-accused Charles and Garth Blacksmith — found inside the “selling room” inside the shop during raids — were involved in the operation.
The four men argued that provincial Crown prosecutors didn’t have jurisdiction over the Dakota people who didn’t sign a treaty that extinguished their sovereignty or rights.
Last month, however, Judge Shauna Hewitt-Michta ruled that previous court decisions make it clear that laws and regulations apply to First Nation peoples regardless of whether they have a treaty or not.
The Crown has rested its case, and as the trial continued Monday it was a chance for the accused to present evidence or call witnesses.
Smoke called himself to the stand and was the sole defence witness. He gave a brief history lesson as he explained the origins of the smoke shop.
“I’m going to try to make sense of this whole predicament that we’re in,” Smoke began.
Speaking for the people of Dakota Plains First Nation, the chief said that his people, once located where Portage la Prairie stands, was an industrious tribe right up to 1900.
They’d lived in the area a long time, knew its resources and could provide for their own people.
Gradually, the occupation of land by settlers left no room for them to support their people.
In response, the Dakota at Portage la Prairie laboured and saved money to buy land.
But, in 1911, the city made a motion to relocate the Dakota. The provincial and federal governments then played a part in moving the Dakota people to the current site of the Dakota Plains reserve southwest of Portage la Prairie, Smoke said.
The reserve was remote, but the people were able to hunt and harvest until the land was converted into farms, private property and conservation areas.
Smoke said that in 1947 his people became dependent on welfare.
In 1972, the federal government recognized Dakota Plains among Manitoba’s reserves. They were given funding, but then came “clawbacks,” a deficit budget and a lack money that left “deplorable” conditions.
The Dakota Plains people turned to alcohol and drugs as a way to cope with their problems.
In desperation, they tried to find innovative ways to make a living.
With no treaty, the Dakota believed they could set up a smoke shop beside the highway.
“I take the full responsibility of that,” Smoke said, asking the court to take mercy on those who were simply at the smoke shop doing the work.
The shop wasn’t a “money grab,” Smoke said, but a means to provide for his people.
Following Smoke’s testimony, both sides made closing comments.
A brief statement by Dakota Plains Coun. Craig Blacksmith on behalf of his brother, Garth Blacksmith, answered the question — why sell cigarettes?
It was a means to provoke a response that would give the Dakota people a venue for their concerns to be heard.
“This was the only avenue that we had … It was either a casino or tobacco,” Craig Blacksmith said. “If we’d sold lollipops or lemonade in the street, nobody would say anything.”
Harold Blacksmith, who offered a closing comment on behalf of his brother, Charles, also indicated there will be an appeal regardless of the verdict Hewitt-Michta reaches.
Smoke also told court that he intends to appeal the case to Court of Queen’s Bench, based on Hewitt-Michta’s decision on jurisdiction.
“I will be convicted here, sure as anything, and I will appeal if that door is open to me,” Smoke said.
Prosecutor Shaun Sass said that the Crown isn’t arguing that the Dakota people shouldn’t pursue commercial enterprises, or that they can’t sell cigarettes legitimately.
“What we’re arguing is that you cannot sell non-marked cigarettes in an unlicensed store,” Sass said. “There are ways to do it legally, both on and off reserve, and there’s many instances of this occurring throughout the province.”
Hewitt-Michta has reserved her decision. She set a date in mid-February to deliver her verdict.
Republished from the Brandon Sun print edition December 10, 2013