This year will mark the 225th anniversary of Jay’s Treaty. Negotiated between the newly independent United States and Great Britain in 1794, the Treaty averted a war between the two countries over such issues as British posts remaining in the United States after American independence and the peace treaty of 1783, and debts unpaid to British creditors. Most importantly, for the indigenous people of North America, Jay’s Treaty provided for their free movement between the artificial legal boundaries established in 1783, as well as the free movement of indigenous trade goods. Since the Treaty was ratified by the United States Senate in 1794, it has allowed indigenous people in Canada to live and work in the United States. Canada, however, does not recognize the application of Jay’s Treaty.
The Supreme Court of Canada ruled in 1956 in Francis vs. The Queen tha Jay’s Treaty did not apply in Canada because the Treaty was never affirmed by Canada’s Parliament, even if it was ratified by Great Britain in 1794 when Canada was still a colony. Even with the passage of the Constitution Act of 1982, and specifically, section 35 thereof, which emphasized respect for Treaty rights, the Canadian courts have continued to follow the Francis decision of 1956 on the basis that the Constitution Act referred to domestic treaties rather than international treaties.
The free movement of indigenous people between what was in 1794 His Majesties Territories in America and the United States had been demanded by Great Britain to protect the fur trade with its headquarters in Montreal and its supply route throughout much of North America. The fur trade remained important until 1810 when furs were replaced by silk in the manufacture of fashionable hats. Due to the decline of the fur trade, by 1813, the British colonies in North America had stopped recognizing Jay’s Treaty.
The United States, on the other hand, has continued to recognize Jay’s Treaty and the special immigration rights of indigenous people from Canada. In a 1924 test case, a Six Nations ironworker born in Canada named Paul Diabo was ordered deported from the United States by the immigration authorities. This administrative ruling subsequently was overturned in 1928 by the United States Court of Appeals which relied on Jay’s treaty and confirmed in 1927 lower court decision that held that Diabo could freely enter the United States and work there.
The appeal court decision was codified in 1928 by United States legislation which provided that the Immigration Act of 1924 which restricted immigration into the United States was not to be interpreted to limit the right of Canadian-born Indians to enter the United States. At the time of the 1928 U.S. legislation, indigenous rights in the United States were more advanced than in Canada. The Indian Voting Rights Act of 1924 had confirmed the right of Native Americans to vote, while in Canada, First Nation citizens did not have the right to vote until 1960. Since politics in a democracy is based on voting rights, this may explain why Canada did not affirm Jay’s Treaty immediately after the 1956 Francis decision.
The appeal court decision was codified in 1928 by United States legislation which provided that the Immigration Act of 1924 which restricted immigration into the United States was not to be interpreted to limit the right of Canadian-born Indians to enter the United States. At the time of
the 1928 U.S. legislation, indigenous rights in the United States were more advanced than in Canada. The Indian Voting Rights Act of 1924 had confirmed the right of Native Americans to vote, while in Canada, First Nation citizens did not have the right to vote until 1960. Since politics in a democracy is based on voting rights, this may explain why Canada did not affirm Jay’s Treaty immediately after the 1956 Francis decision.
Nevertheless, Native Americans had free entry into Canada under Canada’s liberal immigration laws until 1927. In that year, Canada severely restricted immigration numbers, as well as imposing literacy and financial requirements on immigrants. Jay’s Treaty was intended by Great Britain, in part, to shield indigenous North Americans from the negative economic effects of the division of North America in 1783. Canada, on the contrary, has used Jay’s Treaty as a sword. During what is known as the Sixties Scoop, Jay’s Treaty facilitated the removal of many indigenous children from their families to live with American families, thereby depriving these children of their culture, language, and family ties.
In not affirming Jay’s Treaty, Canada has failed to secure the intellectual wealth of those Native Americans who would immigrate to Canada if they could easily do so. There are many concerns, such as land claims, pollution, and economic development which jointly concern American and Canadian indigenous peoples. There is strength in unity.
The Federal Government’s support of Bill-262 which, if enacted, would be a statute to ensure that all laws in Canada comply with the United Nations Declaration on the Rights of Indigenous People offers hope that Jay’s Treaty will be affirmed by Canada. Article 37 of this Declaration states that “Indigenous peoples have the right to recognition, observance, and enforcement of treaties, agreements and other constructive arrangements concluded with States”. Since this Declaration is international in scope, it would be difficult to argue that the word “Treaties” in the Declaration would not include Jay’s Treaty.
The process of reconciliation between indigenous and non- indigenous people is dependant on correcting many historic injustices. Canada’s failure to affirm the 225 year old Jay’s Treaty, can easily be corrected by legislation.
