The Jay Treaty of 1794 is one of the most often referenced treaties in North America when it comes to freedom of movement for Indigenous people between Canada and the United States.
It’s the third article of that treaty that basically states every Indigenous person has free passage between Canada and the United States and that no “Indians” shall be charged any duty when passing between the two countries.
The Jay Treaty, named after the United States justice at the time, John Jay, is an international treaty between Great Britain and the United States that is often referenced when Indigenous people assert border crossing rights between Canada and the United States.
A portion of article three states:
“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.”
The Jay Treaty and its implications are important to Haudenosaunee people. They celebrate with an annual border crossing event each July in Niagara Falls with a crossing of one of the bridges on foot and in vehicles without going through the usual border crossing legalities and procedures, often referencing the Jay Treaty in speeches during the annual event.
And since a good number of Haudenosaunee people call territories in both the United States and Canada home, with significant settlements in New York State and Ontario, the Jay Treaty is treated with all the more pertinence by them.
But Six Nations has not considered the Jay Treaty the start point or end point for border crossing rights. Six Nations has said it’s simply a re-affirmation of its free border crossing rights.
The Jay Treaty has faced a turbulent history since its ratification in 1795 and proclamation in 1796.
The history of the Jay Treaty and its interpretation is storied and has been subjected to scrutiny and sometimes, nullification, over the years.
The Jay Treaty was considered abrogated during the War of 1812 but re-instated two years later through the Treaty of Ghent.
In 1956, in a Supreme Court of Canada decision, the court held a position that because the treaty wasn’t enshrined in Canadian legislation, it held no weight for Indigenous people.
According to a 1987 position paper, Six Nations elected council stated that it does not look to the Jay Treaty as the sole arbiter of its border crossing rights but rather, as a re-affirmation of its rights.
“The Six Nations do not look upon the Jay Treaty as being the starting point for border crossing rights. The line that was drawn between Great Britain and the United States is an artificial one to which the Six Nations have never sanctioned. The Six Nations have never regarded the boundary line as restricting them in any matter from travelling or living on either side of the border. The right to freely cross and recross the boundary line is an aboriginal right which naturally precedes the Jay Treaty.
“In any event, notwithstanding the Jay Treaty, it is the Six Nations stance that the border crossing rights are not rights that exist by statute or Treaty, but are aboriginal rights that were established and in existence long before the European invaders touched shore in North America.”