The Jay Treaty and Rights to Border Crossing

JAY TREATY BORDER ALLIANCE

JANUARY 31, 2023

Introductions

Project Team

• Ava Hill (Six Nations)
• Odawi Law PLLC - Robert Porter (Seneca Nation of Indians)& Naomie Droll (Navajo Nation)
• A.L.L. Professional Services - Amy Lickers (Six Nations)

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Project Background

• Mohawk Council of Akwesasne received a federal grant from the Canadian Implementing UNDRIP Act.
• The fund provided funding to Indigenous Nations and organizations to undertake projects that would provide recommendations on how Canada could implement UNDRIP.
• Canada would then use these recommendations to further pursue activities to implement UNDRIP based on the recommendations provided.

Indigenous Peoples

• Canada uses the terminology “Indigenous” to represent 3 specific groups of original peoples.
• First Nations (Aboriginal, Indians)
• Métis – a specific culture of peoples located in prairie provinces and in northern Ontario. These are descendants from the original settler men and Anishnabe/Cree women.
• Inuit

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• The rights of these Indigenous groups have been examined through many court cases, in matters related to land, identity, hunting/fishing, health sovereignty, the duty to consult, taxation, and on and on.

Project Background

• 3 Akwesasne community meetings
• 1 meeting with First Nations from Ontario
• 1 meeting with First Nations across Canada
• 2 meetings with JTBA

Background

The Mohawk Council of Akwesasne is undertaking an engagement initiative with the community to discuss opportunities for recognizing border crossing rights as Canada works to implement the “Implementing the United Nations Declaration on the Rights of Indigenous Peoples Act”.

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UNDRIP Article 36

1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

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Canadian UNDRIP LAW

Section 5

The Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Act.

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What we have heard so far

• The Right to Cross (right to entry), live and conduct trade existed prior to the Jay Treaty. Any mechanism should be based on the inherent right, not just the recognition of the Jay Treaty.
• The right needs to be acknowledged beyond just the right to entry. It needs to acknowledge the right to conduct trade, pursue employment opportunities, reside, and travel by all modes (not just by land).

�Focus on 2 Key Themes

• The Jay Treaty and Recognizing Rights to Cross the Border

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• Who should benefit from these Rights?

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Jay Treaty Key Points to Consider

• The Jay Treaty is not a Treaty where any other First/Native Nation is a signatory. It is an agreement between the United States and the British Crown.
• It contains 28 articles, which mostly concern navigation and trade. The first 10 articles were permanent, however the remaining were limited to 12 years after the ratification of the treaty (October 28, 1795)
• Article 3 is the only one that explicitly mentions “Indians”.
• Upon the ratification of the Jay Treaty, the legislature of Lower Canada adopted a law to essentially implement the Jay Treaty. This law specifically referred to “the Indians dwelling on either side of the boundary line between the said Province of Lower-Canada and the said United States”, leading one to consider if border rights as recognized under the Jay Treaty extend to all Indigenous peoples in Canada.
• The Jay Treaty has been subject of debate within the Justice Systems in the US and in Canada, and whether the Jay Treaty was annulled due to the Declaration of the War of 1812.

Jay Treaty Article 3 - highlights

• “It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America (the Country within the Limits of the Hudson's Bay Company only excepted) and to navigate all the Lakes, Rivers, and waters thereof, and freely to carry on trade and commerce with each other.”
• All Goods and Merchandize whose Importation into His Majesty's said Territories in America, shall not be entirely prohibited, may freely, for the purposes of Commerce, be carried into the same in the manner aforesaid, by the Citizens of the United States, and such Goods and Merchandize shall be subject to no higher or other Duties than would be payable by His Majesty's Subjects on the Importation of the same from Europe into the said Territories.
• No Duty of Entry shall ever be levied by either Party on Peltries brought by Land, or Inland Navigation into the said Territories respectively, nor shall the Indians passing or repassing with their own proper Goods and Effects of whatever nature, pay for the same any Impost or Duty whatever. But Goods in Bales, or other large Packages unusual among Indians shall not be considered as Goods belonging bona fide to Indians.

Highlights Recap

• The First paragraph: Grants the right to “freely” cross the boundary by land or water to “the Indians” to carry on trade and commerce.
• The second paragraph: extends the right of entry to “goods and merchandise” however parties can exercise their sovereign power to ‘entirely prohibit’ the importation of specified goods and merchandise as is the right to impose duties on the entry of goods. “Freely” does not mean “Duty Free” or “Without the ability to regulate goods”.
• The third paragraph: “Indians” were exempt from paying duties, however, if “Indians” were to transport goods in bulk for settler traders, the goods would be dutiable as ordinary goods in trade. Similarly, if “Indians” were to transport goods in commercial bulk the goods (except furs) would be dutiable.

War of 1812 and the argument of the annulment of the Jay Treaty

• There have been several court cases in the US and in Canada that have challenged the validity of the Jay Treaty and the rights recognized within it.
• Courts have argued on either side:
• That the Jay Treaty and any other Treaty that was made prior to the war, was in effect annulled during the War of 1812.
• The establishment of permanent rights and general arrangements that are professing to aim at perpetuity are not extinguished due to war and conflict, but are resurrected upon the return of peace.
• The main question for the community to consider is:
• Does the recognition of the Right to Border Crossing lie exclusively in the Jay Treaty, or is there a different way to exercise these Rights without having to rely on the validity of the Treaty from either the US or Canadian legal systems.

The Jay Treaty and Recognizing Rights�

What is your understanding of “border crossing” prior to the Jay Treaty?

Is Canada’s recognition of the Jay Treaty enough to capture the intent of the Right to Border Crossing or is there a need to develop a new law or policy to reflect the true intention?

What needs to be included in order to truly implement the Right to Border Crossing?

What terminology best reflects your views of how Rights are accurately reflected in implementation? (ie. Right of Entry, Right to Mobility, Free to Pass and Repass?)

Who should benefit from these Rights?��

What are your thoughts on extending the Right to Border Crossing to all First Nations (Native Nations), as well as other Indigenous Groups?

What are thoughts on the creation of a Border Crossing Rights Commission to monitor the proper use of these Rights?�

Questions

NIA:WEN

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FURTHER COMMENTS CAN BE SENT TO AMY LICKERS AT AMYLICKERS@ALLCONSULTING.CA

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