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JAY TREATY: INDIGENOUS RIGHTS OF FREE CROSSBORDER PASSAGE BETWEEN CANADA AND USA —t1o> DENISA KRASNA' ABSTRACT Dislocation, loss of access to traditional lands, suspension of contact and land intrusion are some of the issues the Indigenous tribes residing on or near the boundary between Canada and the USA have faced after the borders’ implementation. The Jay Treaty of 1794 signed by the British and the Americans had guaranteed Indigenous peoples the right of free passage and this right was reaffirmed by the Treaty of Ghent in 1815. However, as this article shows, both countries vary in their respective interpretations of these treaties and by misconstruing their contents they further perpetuate systemic racism against Indigenous peoples of North America who are subject to border discrimination as their rights are often obscured. The article further explains why a passport requirement breaches Indigenous treaty rights, contradicts fundamental Indigenous cultural beliefs, and questions Indigenous sovereignty. Lastly, it discusses Canada’s progress towards guaranteeing First Nations people Jay Treaty rights. “Long before the white man came over to our country, we passed freely over this land. Now since the coming of the Europeans, a border has been set up separating Canadians and Americans, but we never believed it was meant to separate Indians. Our people are one.” Clinton Rickard, Tuscarora Nation? INTRODUCTION Most present-day international borders are artificial political constructs that were established by governing powers without much consideration of the impacts their decision would have on the people inhabiting the new borderlands. Boundary, understood as “something that indicates or fixes a limit Masaryk University. 2 Quoted in Rachel R. Starks — Jen McCormack — Stephen Cornell, Native Nations and U.S. Borders, University of Arizona, Udall Center for Studies in Public Policy, 2011, 19. + 267 +
