Canada | Law | Opinion

Doug George-Kanentiio: Respect treaty right to cross borders

Then-prime minster candidate Justin Trudeau, fourth from right, during a campaign stop on the Lac La Ronge First Nation in Saskatchewan in August 2015. Photo from Facebook

PM Justin Trudeau Should Endorse Jay Treaty
By Doug George-Kanentiio

The Jay Treaty of Amity, Commerce and Navigation was negotiated by the US and Britain to resolve some of the outstanding issues left over from the American Revolution. Of particular importance was the status of aboriginal nations and there existing rights to take their goods across the international border (however vague) and to do so without having to pay revenues or taxes of any kind.

That treaty was an acknowledgement that Native peoples were already conducting trade between their own nations and that this activity was a key element in the economic lives of aboriginal while also serving as a means to exchange information, establish formal diplomatic relations and enable individuals and families to maintain contact without qualification from the agreement's signatories.

As one example, the Mohawk Nation, although forcibly dispossessed from part of its territory by the Americans, had large vibrant communities along the St. Lawrence River-Lake Ontario corridor. These communities not only remained involved in the affairs of the Haudenosaunee Confederacy but created an alliance called the Seven Nations of Canada with trade a key component. The Mohawks knew that if peace were to prevail nations must have the right to trade and prosper. Without this, the nations would experience stress and poverty which in turn would lead to conflict and violence.

The American government in 1794 had been placed on the defensive as the result of a series of military defeats inflicted by the Native nations in the Midwest led by Blue Jacket of the Shawnees and Little Turtle of the Miami. US President George Washington was deeply concerned that the Haudenosaunee would elect to join Blue Jacket and create a united native military force which would have greatly eclipsed the US Army and compelled the Americans to cede their claims to the Ohio-Michigan-Indiana region.

Washington knew that the Mohawks and their Iroquois kin were upset with the assertion by the US that its borders went through Iroquois territory and ignored traditional boundaries. The Iroquois position was that as a Confederacy, and as individual nations, it retained the right to exclusive jurisdiction including regulating economic activities occurring on their lands and as part of their ancestral customs.

Had the Haudenosaunee pressed harder they may well have compelled the Americans to enter into a formal treaty protecting commerce but the most Washington would do was to endorse the 1794 Canandaigua Treaty, the only such agreement with the US held valid by the Haudenosuanee.

Canandaigua was to work in concert with the Jay Treaty. Both were meant to convince the Natives that their economic rights to self regulation, the express right to cross any border free of taxation and the right to do so without paying any road or bridge tolls were now the supreme law of the land.

Yet both agreements were casually violated by individual states, land speculation companies and then the federal governments in Britain and the US. But willful ignoring the treaties did not prevent the Americans and British from actively recruiting the Iroquois to fight on their respective sides during the War of 1812 with the Mohawks playing a vital role in almost all key battles from the fall of Ft. Detroit to the rout of the Americans at Queenston Heights, Chateauguay, Beaver Dams and Crylser's Farm. The Mohawks saved Upper and Lower Canada only to have the international border set in place across its territory and laws enacted which would destroy the Mohawk economy and drive the people into poverty.

When the Dominion of Canada was created in 1867 it was required to abide by all previous treaties entered into by Britain from the 1763 Royal Proclamation to Webster-Ashburton Treaty of 1842. The Canadian Parliament did not have the discretion to decide to arbitrarily ignore international law and could not pretend it was not bound by the Jay Treaty.

Yet it did and continues to do so. Canada has refused to acknowledge that Native nations have the right to cross the border unimpeded. It rejects the concept that Native nations can carry on legitimate commerce without paying import duties. While it abides by the North American Free Trade Act it will not agree to do the same with aboriginal people.

In fact, Canada takes a vigorous, perverse delight in harassing individual Natives and confiscating their goods. Its agents are primed to use excessive force to apply Canadian import laws. The federal government conveniently argues that since it never specifically passed the Jay Treaty it does not have to abide by its terms even as the US does so.

For the Iroquois, and especially for the Mohawks, this has brought great harm. The traditional economy was destroyed, Mohawks workers jailed, Mohawk families subjected to unwarranted interrogation and their goods taken.

It has also led to a massive criminal presence on Mohawk lands as illicit products are smuggled across the border. At times, this includes taking refugees seeking entry into the US with lethal results as people are drowned in the St. Lawrence.

Canada must be held accountable for this mess. It can easily be rectified if the new federal government will agree to form a joint task force to examine the border issue. It can do so by including Native nations in examining law enforcement problems and empowering the nations to regulate commerce on their respective lands.

It can do so by assisting the Native nations in recreating an aboriginal trade compact built upon ancestral routes. It can do so by endorsing the Jay Treaty and to enter into a formal, Canada wide trade compact designed to stimulate a new native economy rooted in Native traditional law.

The time for symbolic acts meant to placate the moment is over. There is only one rational way to break the bonds of Native poverty and dependence: that is to reestablish aboriginal economies without the suffocating dictates of the Indian Act of Canada and to liberate aboriginal peoples to control and develop their renewable resources (intellectual and physical) as they deem appropriate.

Doug George-Kanentiio, Akwesasne Mohawk, is the former editor of the journal Akwesasne Notes and a co-founder of the Native American Journalists Association. He was a trustee for the National Museum of the American Indian. Kanentiio is vice-president of the Hiawatha Institute for Indigenous Knowledge. He may be reached via e-mail:

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