Page 273 [273]
JAY TREATY: INDIGENOUS RIGHTS OF FREE CROSS-BORDER PASSAGE...
Even though Indigenous people were not part of the negotiation process,
they did not simply accept decisions taken by the colonial powers that directly
affected them. The adoption of Article III further shows that they were active
players on the continent and as such deserving of respect and consideration.
The Haudenosaunee (also commonly referred to by the colonial denomination
as the “Iroquois”), whose territory stretches east from the Great Lakes, were
crucial in these negotiations. As Starks et al. write, both economic and
political factors had to be taken into account as the Haudenosaunee were very
powerful both militarily and economically due to their strong base, effective
organization and essential role in the fur trade.“* While the Haudenosaunee
are rightfully given most credit for the rights protected by Article III, it is
important to note that other tribes residing further west were unaware of the
new boundary line and were therefore completely removed from the whole
process, without the opportunity to protest or get involved.’
More than a century later, Article III of the Jay Treaty was modified by
the US, effectively breaching one of the fundamental parts of the treaty.
The Immigration and Nationality Act (INA) of 1952 established a bloodline
requirement for Indigenous people crossing the border, which states that “only
individuals with greater than 50% Indian blood are entitled to the benefits [of
the Jay Treaty]. This shift is significant for several reasons. Blood quantum
politics is highly controversial as it is ultimately a colonial construct used to
control Indigenous populations and diminish their sovereignty. Historically,
it has been employed in a highly destructive way as a tool to assimilate and
reduce Indigenous populations and to substantially weaken their rights."
As Schmidt contends, “Europeans not only expropriated land and resources,
but also Indian identity” that, prior to European colonization, used to be
defined not by race but by socio-cultural and territorial aspects.'* Unlike other
minorities, American Indians are the only group whose identity is measured
by blood quantity. Gallagher and Lippard explain that while African American
identity, for example, is defined by “the one drop rule,” American Indians
need a significantly higher percentage of blood to be permitted to identify
4 Starks — McCormack - Cornell, Native Nations, 52.
5 Ibid., 22.
Boos — McLawsen - Fathali, Canadian Indians, Inuit, Metis, and Metis, 353. (original
emphasis).
Pauline T. Strong - Barrik V. Winkle, “Indian Blood”: Reflections on the Reckoning and
Refiguring of Native North American Identity, Cultural Anthropology, Vol. 11, No. 4 (1996),
553, http://digitalcommons.law.seattleu.edu/sjel/vol4/iss1/12 (accessed 1 April 2020).
See further Charles A. Gallagher - Cameron D. Lippard, Race and Racism in the United
States: An Encyclopedia of the American Mosaic, Santa Barbara, Greenwood, 2014, 177. See
also Ryan W. Schmidt, American Indian Identity and Blood Quantum in the 21“ Century:
A Critical Review, Journal of Anthropology (2012), https://www.hindawi.com/journals/
janthro/2011/549521/ (accessed 4 April 2020).
18 Schmidt, American Indian Identity, n.p.n.
e 271"