Jay Treaty 1794
Aboriginal Border Crossing Rights and the
Jay Treaty of 1794
Prepared by the Aboriginal Rights and Research Office
Mohawk Council of Akwesasne
Kentenhko:wa / November 19, 1999
The Jay Treaty:
“The Treaty of Amity, Commerce and Navigation, Between His Britannick Majesty; - And the United States of America, By Their President and the Advice and Consent of Their Senate, November 19, 1794.”
There are two popular misconceptions concerning the Jay Treaty, leading many people to assume that when Aboriginal Peoples speak of border crossing or trading rights, across the U. S. – Canada border, that it is the Jay Treaty that gives those rights. That is not the case. The Jay Treaty is not a Treaty with Aboriginal Peoples and it is not a Treaty which gives border crossing rights to First Nations People. It is however a Treaty which confirms those rights and which adds to the constitutional protection of those rights. It also does not create the range of Aboriginal Rights that have been exercised by Aboriginal People since time immemorial.
The Jay Treaty, is a Treaty between the United States and Great Britain. While it was important for the U. S and Great Britain to make this treaty to seal their own relations, additionally, it demonstrated to First Nations, that First Nations were an essential element in diplomatic relations between these two governments. This Treaty between two European Nations acknowledged that protection of First Nations’ rights were an important part of the non-Indian reality.
The signatories to the Jay Treaty were aware of the rights and freedoms that First Nations People utilized and expected, especially for unimpeded travel throughout their Aboriginal Territories. These systems and relationships developed to include European Nations, who further cultivated and encouraged the pre-contact relationships and utilized the pre-existing networks and systems for their own use, benefit and profit.
The Jay Treaty includes provisions recognizing and acknowledging the existence and right of certain long-established “Indian” systems and practices. These are contained in Article III of the Jay Treaty. Aboriginal practices and systems of trade, commerce, and mobility between territories existed long before European arrival to North America. The Jay Treaty by way of Article III, was the European mechanism by which they were able to reiterate and recognize particular independent and pre-existing rights of Aboriginal Peoples. Therefore, Article III of the Jay Treaty, as well as numerous other Treaties and Treaty Councils are not the source of Aboriginal rights but examples of European recognition of a range of Aboriginal Rights and as such must constitute treaty rights and produce treaty protections.
Article III of the Jay Treaty says:
“It is agreed that 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 said Boundary Line freely to pass and re-pass 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…
…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 re-passing with their own proper Goods and Effects of whatever nature, pay for the same any Import or Duty whatever. But Goods in Bales, or other large Packages unusual among the Indians shall not be considered as Goods belonging bona fide to Indians.”
Border Crossing at Akwesasne:
At Akwesasne, by reason of its geographical location on both sides of the U. S. - Canada boundary, border crossing is an essential every day event for the 13,000 Mohawks that reside here today.
Since the imposition of the border through Akwesasne Territory from 1783, the Mohawks have a great deal of first hand experience in fighting for these rights. Throughout Akwesasne history, Mohawk leaders have sought to have Canada honor the commitments made to our ancestors, which are referred to in the numerous Treaties and Treaty Councils as well as those reflected in the Jay Treaty.
In the 1950’s, Louis Francis, a Mohawk from Akwesasne, was charged duty on a used washing machine that he brought home, crossing the U. S. - Canada border. Louis Francis and the People of Akwesasne fought the infringement of our Border Crossing Rights, invoking Article III of the Jay Treaty. They took the case all the way to the Supreme Court of Canada and finally lost on a technicality. In Francis v. The Queen, 1956, the Supreme Court held that the Rights guaranteed in Article III of the Jay Treaty, could not be enforced by the Courts of Canada, simply because the Canadian government had not implemented any legislation affirming those stipulations in the Treaty that were meant to benefit Aboriginal Peoples.
The Supreme Court left Mohawks asking why it was never ratified by Canada and why they weren’t moving to do it now. From the 1950’s on, the Mohawks of Akwesasne have encountered continual infringement on their Aboriginal border crossing, trade and mobility rights, and Akwesasne has continually brought these issues to the attention of the
government of Canada. In 1983, the Special Parliamentary Committee, on Indian Self-Government heard submissions on Aboriginal border crossing rights.
In its report, “Indian Self-Government in Canada, commonly called the “Penner Report”, it recommended that Parliament take immediate steps to implement Article III of the Jay Treaty. (Recommendation 29, page 78)
Since the Francis case, Akwesasne’s exercise of their rights at the border has continued as an unbroken tradition. Sometimes the charging of duty was enforced, sometimes not. Seizures were routinely challenged and often reversed by senior officials. After years of trying to negotiate mechanisms with Canada for the exercise of Aboriginal border-crossing rights, the Akwesasne Mohawks sought to have our rights taken beyond the whims of ministerial discretion to recognition of our rights in the Canadian laws. The Mohawks decided to act upon a challenge from a high-ranking official of the Canadian government and insisted that we bring our issues to the attention of the Canadian courts in a test case.
In 1988, with the support of the Akwesasne Community, Grand Chief Mitchell, accompanied by the Assembly of First Nations’ National Chief, Georges Erasmus, Chiefs of several other First Nations, and about 400 Akwesasne Community members, walked across the International Bridge from the U. S to Canada. They brought with them various goods for Community use and goods intended as gifts for the Tyendinaga Mohawk Community to the west of Akwesasne. Grand Chief Mitchell was charged with violations of the Customs Act and the test case was brought before the Federal Court of Canada Trial Division.
Grand Chief Michael Kanentakeron Mitchell appeared before the Federal Court of Canada, as a Mohawk Citizen, from the Community of Akwesasne, whose ancestors lived in the Mohawk Valley before European contact. He asserted that the traditional activities of trade and transportation of goods are based on our ancient Aboriginal rights and are integral to our culture and to our continued survival as a People and as a Nation.
The Federal Court reviewed a vast amount of documentary evidence and oral evidence in rendering its decision. Relying on the Francis decision of 1956, the Court held that the Jay Treaty was not an independent source of s. 35 treaty rights for the Mohawks of Akwesasne. The decision however, was very favorable to the Mohawks in Mitchell v. the Minister of National Revenue, June, 1997, in that it recognized our pre-existing Aboriginal border crossing Rights.
The Court agreed that the Mohawk People do indeed have an Aboriginal Right “to pass and repass freely across what is now the Canada – United States boundary including the rights to bring goods from the United States into Canada for personal and community use without having to pay customs duties on those goods. The aboriginal right includes the right to bring these goods from the United States into Canada for non-commercial scale trade with other First Nations.
The court however referred to the Jay Treaty to confirm these as Aboriginal rights. Instead of commencing work with Akwesasne to negotiate the responsible practice of the rights, Canada chose to bring the decision to the Federal Court of Appeal.
A judgment on November 2, 1998 upheld the judgment of the trial judge with some further definition to the scope of the Aboriginal Right. The Federal Court of Appeal held that there was an existing Aboriginal right for the Mohawks of Akwesasne, when crossing the international border from New York to Ontario or Quebec, to bring goods purchased in New York State to Canada, for personal use or consumption, or for collective scale trade with First Nation communities in Ontario or Quebec, without having to pay any duty or taxes to the government of Canada. The main limitation added by the Court of Appeal was to restrict trade to other First Nations in Ontario and Quebec, which was based on the evidence presented in this case.
The Mohawks believe that we have achieved an important victory in this case. This case with the Adams case of 1996 represent important new decisions by the Canadian courts recognizing that the international border constitutes an unconstitutional barrier to our Aboriginal rights. The court has recognized that our people and our history cannot be defined by the international border, and that our Aboriginal rights can be exercised despite the imposition of the border on our territory. Finally, the court has also recognized, both historically and today, the importance of trade between our First Nations and provided Constitutional protection to the exercise of these trading rights.
The 1956 Francis case, was relied on by Canada as a basis for refusing to
recognize certain of our treaty rights, and the only impediment to recognition has been Canada’s failure to pass legislation implementing Article III of the Jay Treaty.
It is ironic that the very issues that we are debating in the courts are areas where Mohawk and Canada’s goals and objectives are the same. During the 1998 Annual Liberal Party Convention the Liberal Party of Canada passed a resolution stating:
“…BE IT RESOLVED that the Liberal Party of Canada encourages the
federal government to support Aboriginal economic and business
development initiatives including…
... enhanced support of Aboriginal trade including the recognition of
Aboriginal traditional and commercial trading practices and rights under
international agreements and treaties (including the Jay Treaty); and…”
Recently the Supreme Court has agreed to hear the Mitchell case in the
Supreme Court. The Mohawks anticipate that this will occur in the spring of 2000. The Mohawks will not be raising the issue of whether s. 35 implements Article III of the Jay Treaty in the Supreme Court, in order to focus on the preexisting Aboriginal border crossing rights at issue here. The Jay Treaty issue therefore remains alive for another opportunity where it can be raised in Canada’s highest court, or for the government of Canada to implement through a legislative process.