[*PG313]NATIVE AMERICAN FREE PASSAGE RIGHTS UNDER THE 1794 JAY TREATY: SURVIVAL UNDER UNITED STATES STATUTORY LAW AND CANADIAN COMMON LAW

Bryan Nickels*

Abstract:  Since 1794, Native American groups in both the United States (U.S.) and Canada have enjoyed the right of “free passage” across the U.S.-Canadian border per the provisions of the Jay Treaty. However, development and recognition of this right have taken decidedly different courses: while the U.S. has treated the right very liberally under statutory codification, the Canadian government has opted to develop, and restrict, the right under their courts’ common law. This Note discusses the origin and development of the “free passage” right under the Jay Treaty, and encourages both the continued recognition of the right, as well as a stronger Canadian common law effort to harmonize treatment of the right with U.S. jurisprudence.

Introduction

In 1794, following the American Revolution, the United States and Great Britain signed an agreement entitled the Treaty of Amity, Commerce, and Navigation (the Jay Treaty).1 In addition to post-war normalization of relations between the two countries, the treaty also extended and acknowledged various rights of Amerind tribal groups occupying areas on or near the U.S.-Canadian border.2 Most significantly, the treaty stated that Indians on either side of the border would retain the right to move freely back and forth across the border, the so-called “free passage” right.3

[*PG314] This 200 year-old provision has endured in both U.S. and Canadian law, albeit in different forms.4 In the U.S., the Jay Treaty provisions were incorporated into Section 289 of the Immigration and Naturalization Act (INA): “Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.”5 Though the American statute is ripe with vagaries that potentially create many areas of dispute, there have been relatively few judicial disputes in U.S. courts over the years that might have led to a narrow construction of the statute.6 Instead, Section 289 has been treated with some of the broadest language given to any of the U.S. immigration laws, with courts and the Board of Immigration Appeals (BIA) treating Section 289 in a way generally beneficial to native groups.7 Additionally, the U.S. Code of Federal Regulations (C.F.R.) also provides for permanent residency for Canadian Indians simply based on their eligibility for the Section 289 exemption:

“[a]ny American Indian born in Canada who at the time of entry was entitled to the exemption provided . . . by . . . section 289 of the Act, and has maintained residence in the United States since his entry, shall be regarded as having been lawfully admitted for permanent residence.”8

The Canadian government, in contrast, never truly incorporated the Jay Treaty into permanent statutory law.9 Instead, Canadian courts have been sustaining the Jay Treaty provisions through common law treatment, typically under the “aboriginal rights” doctrine.10 While [*PG315]this seems to offer more liberal avenues to preserve the right, Canadian courts have been restrictive in identifying “aboriginal rights.”11

In the last ten years especially, there have been decisions from Canadian courts that appear to undermine, if not threaten to completely eliminate, the free passage rights of Indians guaranteed under the Jay Treaty.12 With U.S. law establishing a liberal treatment of the Jay Treaty free passage provision,13 the recent Canadian treatment has resulted in a potentially significant disparity in the free passage right: in the U.S., a Canadian Indian cannot be deported, not even for possession of heroin.14 However, to claim the free passage right in Canada, a U.S. Indian has to demonstrate a cultural or historical “nexus” to the specific area in Canada he wishes to visit.15 In fact, this “nexus” test even has been applied to Canadian Indians reentering Canada, disallowing Jay Treaty privileges where a Canadian Indian did not cross in an area his tribal group did not historically transverse.16 Further restriction, or complete elimination, of the Jay Treaty free passage right by the Canadian courts could result in nothing less than chaos for those native groups straddling the U.S.-Canadian border, such as the Okanogan/Colville group,17 as well as for any individual member of a native tribe seeking to exercise his free passage right.

Part I of this Note explores the background of the free passage right of North American Indians under the Jay Treaty and the subsequent Treaty of Ghent. Part II examines case law addressing Section 289, both from U.S. federal courts and the BIA. Additionally, Part II discusses Canadian common law treatment of the Jay Treaty free passage right,18 as well as related Canadian statutes and regulations. Part [*PG316]III draws conclusions from American and Canadian law, discussing the reasons for the survival of the free passage rights, and a brief discussion of similar non-treaty based rights granted to native groups in other areas of North America. This Note concludes with a brief discussion of the implications to U.S. and Canadian immigration, given the ongoing survival of free passage rights, both in Section 289 and in the Canadian common law. The conclusion of this Note recommends solutions towards a “harmonizing” of U.S. and Canadian law to avoid disparate treatment of natives crossing the border, as well as further Canadian recognition and protection of the Jay Treaty free passage right.

I.  The Origins of 289: the Jay Treaty and the Treaty of Ghent

A.  The Jay Treaty

Following the conclusion of the American Revolutionary War, Indian nations, including the Six Nations (the Iroquois), were bisected by the newly-established U.S.-Canadian border, a seeming intrusion by the governments into lands that remained the territory of the tribes.19 Thus, Great Britain and the United States added the following provision to the Jay Treaty:

It is agreed that it shall at all times be free . . . 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 . . . and freely to carry on trade and commerce with each other. . . . [N]or shall the Indians passing or repassing with their own proper goods and effect of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.20

[*PG317]An Explanatory Article in 1796 later affirmed this passage within the Jay Treaty.21

B.  The Treaty of Ghent

The War of 1812 subsequently broke out between the U.S. and Great Britain. At the close of the war, Great Britain pushed for the recognition of the Indian nations as full sovereigns, so as to create a “buffer zone” between the United States and Canada to prevent a possible U.S. invasion.22 The U.S. declined, compromising in a restoration of the agreements under the Jay Treaty:

The United States of America engage . . . to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities . . . And His Britannic majesty engages . . . to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled, to in one thousand eight hundred and eleven, previous to such hostilities.23

II.  A Summary of Major U.S. and Canadian Cases

Despite the almost draconian relationship the United States had with Indian tribes, the Jay Treaty free passage right has persisted and survived.24 Prior to 1924, despite the developing antagonism to aliens in U.S. immigration laws,25 Canadian Indians were allowed to travel into the U.S., without being subjected to alien registration laws.26 However, passage of the Immigration Act and Citizenship Act in 1924 by the U.S. Congress led to the exclusion of Canadian Indians, as Canadian Indians not eligible for U.S. citizenship were thereby exclud[*PG318]able as immigrants.27 The 1927 Diablo v. McCandless decision was perhaps the first interpretive case in the U.S. discussing the Jay Treaty free passage right, some 130 years after the signing of the Jay Treaty.28 Similarly, Canadian courts did not address free passage rights under the Jay Treaty until 1954.29 The reasons for such late consideration of the free passage right in both countries was discussed by Justice Sutherland in the U.S. Supreme Court’s review of Karnuth v. United States ex rel. Albro:

It is true, as respondents assert, that citizens and subjects of the two countries continued after the War of 1812, as before, freely to pass and repass the international boundary line. And so they would have done if there never had been a treaty on the subject. Until a very recent period, the policy of the United States, with certain definitely specified exceptions, had been to open its doors to all comers without regard to their allegiance. This policy sufficiently accounts for the acquiescence of the Government in the continued exercise of the crossing privilege upon the part of the inhabitants of Canada, with whom we have always been upon the most friendly terms . . . .30

A.  U.S. Treatment

1.  Federal Court Decisions

The first U.S. federal court case addressing the possibility of abrogation of the Jay and Ghent treaties (and, accordingly, the free passage right) by the 1924 immigration acts was Diablo v. McCandless.31 [*PG319]This district court opinion is brief, not even addressing the specifics of the case at hand.32 Instead, the court addressed the traditional relationship between Indian tribes and the U.S. government: as the court calls the unique relationship, “imperium in imperio” (roughly, “sovereign within a sovereign”).33 The court also bluntly stated that the “boundary line to establish the respective territory of the United States and of Great Britain was clearly not intended to, and just as clearly did not, affect the Indians.”34

The court also made the following bold statement regarding the possibility of the Jay Treaty being fully abrogated by the War of 1812: “We do not see that the rights of the Indians are in any way affected by the treaty, whether now existent or not,”35 suggesting an “aboriginal rights” approach to Indian migratory rights.36 However, the court restricted this approach, acknowledging that Congress could exercise its power to exclude Canadian Indians.37 Regarding the 1924 Act, Congress did not express “the clear intention” to make the alien registration law applicable to Canadian Indians.38

On appeal, the Third Circuit affirmed the decision of the lower court, stating that “[the Jay Treaty’s free passage right for Indians] was not a temporary stipulation as to trade, commerce, mutual rights, and the like, but was in nature of a modus vivendi, to be thereafter observed in the future by Canada and the United States in reference to the Indians.”39 The court ultimately found that the Jay Treaty was still in force.40

One of the pinnacle cases in the examination of Section 289, as well as in the general study of Indian law, is Goodwin v. Karnuth.41 One of the most important facets of this case is the application of the definition of “Indian” to the treatment of immigration law.42 In this [*PG320]case, a Cayuga tribal member attempted to enter the United States without a visa and passport, giving false and misleading statements, and thereby entering without inspection.43 However, because she married a white man, under Canadian law, she endangered her status as an Indian; thus, the question turned on whether “Indian” is a political term or a racial one.44 The court reviewed several cases indirectly speaking to the question, as well as looked to federal statutes.45 The court also considered the canon of statutory interpretation, as expounded by the U.S. Supreme Court, that popular connotations of words and concepts should be incorporated in the analysis of statutory wording.46 Thus, “[a]dopting this rule of construction, the words ‘American Indians born in Canada,’ found in 8 U.S.C.A. [sec.] 226a must be given a racial connotation.”47 The court further ruled that the marriage did not disenfranchise the Indian woman, so further application of Canadian law was unnecessary.48

In addition to the right of passage, the Jay Treaty also encompasses certain rights regarding the passage of Indian goods across the border.49 These rights, in addition to the issue of whether Canadian Indians were exempt from post-entry registration, were considered in the Akins v. Saxbe decision.50 In Saxbe, members of the Six Nations in Maine and New Brunswick challenged these questions of passage of goods and post-entry registration, citing the Jay Treaty.51 While the court ultimately dismissed the customs claims for lack of jurisdiction,52 it did discuss the post-entry registration requirement extensively.53 The post-entry registration requirement mandated that Canadian Indians register when their stays within the U.S. were to exceed thirty days.54 At issue, then, was whether the expression of a right “to pass” [*PG321]also encompassed the right “to remain.”55 The court looked to the intent of the statute and the Jay Treaty (to exempt Indians from immigration statutes and requirements) and also employed two canons of statutory construction relating to Indians: first, that statutes and treaties must be construed as the Indians, at the time of passage, would have reasonably construed the agreement; and second, that ambiguities in treaties and statutes relating to Indians must be resolved in favor of the Indians.56 The court thus found that:

the intent of Congress in enacting Section 1359 was to preserve the aboriginal right of American Indians to move freely throughout the territories originally occupied by them on either side of the American and Canadian border, and, thus, to exempt Canadian-born Indians from all immigration restrictions imposed on aliens by the Immigration and Nationality Act.57

2.  Administrative Decisions

One of the first opportunities the BIA had to address Section 289 (then Section 226a) was In the Matter of S—.58 There, the BIA addressed the question of the status of a white woman who married a Canadian Indian; under Canadian law, the woman was granted status as an Indian.59 The BIA thoroughly examined the most recent treatments of the question of Canadian-Indian status, and acknowledged that there was little consensus on whether the identity had been based on a political or an ethnological concept of “Indian.”60

[*PG322] In Matter of S—, the BIA opted for a very liberal conceptualization of the purpose of the statute: “to preserve to [Canadian Indians] their ancient tribal rights.”61 In this, “Indians by blood were [not] the only ones intended to benefit[; instead,] tribal membership under the adequate guide of the Canadian Indian Act controls.”62 Presented with the possible inconsistency in Canadian laws where an Indian woman would lose passage rights were she to marry a white man, the BIA held that this result still would be an appropriate determination under the Canadian Indian Act definitions and would create no harm.63 Although the BIA was extremely generous in its expansion of the Canadian Indian section of U.S. immigration law, making non-Indian spouses of Indians effectively Indians entitled to all of the benefits of the Jay Treaty and subsequent law,64 there is also an underlying basis to Matter of S— that can been interpreted in one of two fashions: first, that the BIA was giving broad treatment to the concept of comity with Canadian law, almost to the point of allowing Canada to determine who could enter the U.S.;65 or, second, in its discussion of “ancient tribal rights,” the BIA granted broad deference to Indian tribes to determine their own membership (through cultural prerogatives).66 This latter approach would be almost a completely opposite approach than the federal government takes for its own U.S. Indians, whose membership and qualifications are determined by a quagmire [*PG323]of tribe recognition, membership rolls, census numbers, and blood quantum requirements.67

In In the Matter of A—, the BIA addressed the issue of a Canadian Indian charged for deportation on several counts, including becoming a public charge and being infected by a contagious disease.68 In this case, it is important to note that the Immigration and Naturalization Service (INS) only sought removal of the Canadian Indian for the deportation charge arising after entry, thereby acknowledging implicitly that Canadian Indians are not excludable at entry.69

The issue in Matter of A—, then, turned on whether Canadian Indians can be deported following entry.70 The Board acknowledged that Canadian Indians are not inadmissible; the only option to keep them out of the United States would be through deportation for issues arising after entry.71 The Board discussed the consequences of such a deportation.72 The court found that the Indian-defendant had become a public charge within five years of entry; additionally, the court found that he had no family ties within the U.S., no fixed domicile, and he had been arrested for drunkenness in the United States and Canada.73 For these grounds, the BIA found that “we do not feel that the alien is a particularly desirable person [and there] are no compelling reasons why he should be permitted to remain in this country.”74 As the BIA explained in a later case, the Board was refusing to “extend the immunity from exclusion to deportation.”75

One of the more pivotal cases in terms of defining language in the variable forms of the Jay Treaty was decided by the BIA in 1948.76 In the Matter of B— addressed the somewhat sensitive issue of what exactly are “American Indians born in Canada.”77 In this case, an Abenaki woman married a white Canadian, and the white husband subsequently was naturalized as a United States citizen.78 The woman later was convicted of adultery in Vermont in 1935.79 Her entry was [*PG324]denied, and she challenged the action.80 The BIA’s main task was to decide whether she had lost her status as a “North American Indian” under Canadian law by virtue of her marriage to a white man.81 If the BIA so concluded, it would have subjected her to the general immigration laws and prevented her from enjoying the benefits of the Jay Treaty free passage right.82 Although the BIA had previously adopted the political, and not the ethnological, identity approach, the then-recent Goodwin decision led the BIA to restate and implicitly concur with the Goodwin principle that the wording within the Jay Treaty “must be given a racial and not a political connotation,” and thereby reject the Canadian statutory revocation of the applicant’s status as an Indian.83 But the BIA did indicate that an offense that would not adversely affect admissibility might be used as grounds for deportation.84

Matter of B— presents an interesting departure from the principle of comity, as well as traditional federal Indian law: a member of a non-federally recognized tribe (and therefore not an “Indian” in the eyes of the U.S. government), and also a member of a Canadian tribe who had lost Indian status (and therefore not an “Indian” in the eyes of the Canadian government), still would, under the Jay Treaty, enjoy full treaty-crossing rights.85 In short, an Indian not recognized as an “Indian” in Canada or the U.S. would nonetheless be non-removable in the U.S. were he to commit an otherwise deportable offense (thus enjoying the same rights as a recognized Canadian Indian), because the Board shifted the focus to racial, not political, identity in Matter of B—-.86

The BIA also has ruled on the difference between treatment of Canadian Indians under exclusion standards and under deportation standards.87 In In the Matter of D—, a Canadian Indian was charged with entry less than one year after deportation, and having been deported for conviction of grand larceny (two separate offenses).88 The BIA reaffirmed its prior holding that “in these North American Canadian Indian cases, a ground of inadmissibility existing at the time of [*PG325]entry does not constitute a cause for deportation.”89 The BIA further held that, while offenses after entry could result in deportation,90 in this case, any action taken against this particular individual would be only that of a belated exclusion action, prohibited under BIA and federal case law.91

In Matter of Yellowquill, the BIA revisited the issue of distinguishing exclusion and deportation in a later case regarding a Canadian Indian arrested in Texas for heroin possession, a deportable offense.92 The Board consulted with INS General Counsel, who indicated that the Saxbe decision was correct and that the Matter of A— decision should be explicitly overruled.93 The BIA concurred, then briefly restated the principles underlying Saxbe, overruled Matter of A—, and terminated deportation proceedings.94 This case seems to be the “highwater mark” for the liberal interpretation of Section 289; in this particular instance, the INS actually argued before the BIA that it did not have the authority to deport someone for heroin possession.95

3.  U.S. Government Definition of an “Indian”

There is no single definition of “Indian” under U.S. federal law to aid in the evaluation of Section 289. The definition usually is provided within the specific statute passed, or can be predicated on tribal status, also a confusing area of law.96 To put it simply, a tribe is whatever Congress calls it; even if a “tribe” includes groups that do not speak the same language,97 includes groups that formally had no structured political or social association with one another,98 or even if the “tribe” is only a smaller portion of a larger political unit divided by [*PG326]the U.S. government.99 And, of course, most crucial to the definition of “tribe” is that the federal government has recognized the group in some fashion, be it through treaties, agreements, statutes, or through an ongoing relationship.100

Congress typically treats Indian status, relating to individuals, not as a separate concept, but instead identifies such individuals as a derivative of their tribe’s status.101 There is no simple definition of “Indian” based on ethnological or political status; in some cases, a “full-blooded” Indian, by virtue of belonging to a non-recognized tribe, is not an “Indian” under federal definitions.102 However, U.S. common law sometimes has recognized an individual as an Indian where his ancestors inhabited the U.S. before the arrival of Europeans, and where the individual enjoys recognition by his tribe as an Indian.103 Courts and Congress generally have been deferential to tribes to determine who may, and who may not, hold membership status in a tribe.104 However, when administration of federal laws is at issue, Congress often will formulate a definition of “Indian,” usually specific to the statute being passed.105 Sometimes the statute requires a blood quantum minimum, or status within a recognized tribe.106 It is also relevant, and interesting, to note that Canadian Indian statutes do not impose any blood quantum requirements.107

In the United States, the language in Section 289 is “American Indian born in Canada,” and not “Canadian Indian;” if a political basis was intended by Congress, there certainly have been decades of opportunities to amend the language to make it clearer.108 Congress, [*PG327]the courts, and the BIA essentially have deferred determination of “Indian” to the Canadian government.109

B.  Canadian Courts

Unlike the U.S., Canada has not codified the Jay Treaty.110 The closest relevant Canadian immigration statute is as brief as its sister statute in the United States, Section 289: “A person who is registered as an Indian pursuant to the Indian Act has, whether or not that person is a Canadian citizen, the same rights and obligations under this Act as a Canadian citizen.”111 At least on its face, this statute perhaps may be construed more broadly than Section 289.112 The statute clearly indicates that an Indian only needs to be registered with the Canadian authorities to be entitled to the full rights of Canadian citizens.113 The Indian need not be a citizen of Canada to enjoy Canadian rights, such as the right of entry and the right to remain.114

However, the statute does not specifically speak to the Jay Treaty.115 Canadian courts readily reject the Jay Treaty free passage of goods right,116 but have interpreted the free movement concept in a somewhat erratic light, sometimes narrowing interpretation of the free passage right to almost non-existence.117

[*PG328] At least one Canadian court has presented several alternative interpretations of the Canadian implementation of the Jay Treaty.118 The Regina v. Vincent case concerned a member of the Lorette Huron band who attempted to transport several hundred dollars worth of tobacco into Canada free of duty.119 Instead of asserting that the Jay Treaty had been abrogated by the War of 1812, the Ontario Court of Appeals instead examined the issue under the language of the Jay Treaty.120 Thus, contrasting the language “their own goods and effects” (items protected by the Jay Treaty from tariffs) and “goods in bales or other large packages unusual among Indians” (items not protected), the court found that the seven large cardboard boxes within which the Huron band member had transported the tobacco were not protected; therefore, the tobacco contained therein was not exempted from duty.121 The decision of the court was predicated on the idea of fair commercial competition between Indians and U.S./Can-adian citizens, as well as the fact that the Indians did not enjoy the right of transporting duty-free commercial items across the U.S.-Canadian border at the time of the signing of the Jay Treaty.122 However, the recognition of the court that the right of free passage of goods by native groups still exists under a Jay Treaty analysis is a further demonstration of the liberal treatment of the rights enumerated in the Jay Treaty.123

Perhaps even more significantly, the Vincent court found that the Jay Treaty conferred no individual rights on members of any Canadian tribe, as the treaty never had been enacted into legislation by the Canadian government.124 The court took pains to distinguish U.S. treatment of the treaty, pointing out that the nature of the U.S. Constitution, and Senate approval of treaties, made treaties signed by the U.S. self-executing in nature.125 The court pointed out that under the law of Canada and the United Kingdom, ratification of a treaty is a function of the executive branch.126 The court, based on language from a British House of Lords decision, concluded that international [*PG329]treaties, having no portion thereof incorporated into legislation, were not justiciable.127 While the court was deciding the relatively narrow question of whether commercial goods could be duty-free if transported by native groups, the implications of such a finding relating to the Jay Treaty potentially affect the free passage rights.128

Another case of narrow interpretation from the Canadian courts is that of Minister of National Revenue v. Mitchell.129 In this case, a member of the Mohawk Nation attempted entrance into British Columbia, carrying a number of goods, only one intended for commercial re-sale; the Mohawk tribal member claimed immunity from duties, per the provisions of the Jay Treaty.130 The court criticized the lower court for vesting the Mohawk tribal member with an “international mobility right,” including the right of free passage of goods without restriction.131 The court reasoned that such a right had expanded well beyond the Customs Act that the lower court originally had been called upon to interpret; instead, such an “international mobility right” also had implications for the Immigration Act, the Citizenship Act, and the Extradition Act.132 The court retreated to an assertion of Canadian state sovereignty: “an aboriginal right to enter a sovereign state that is not based on citizenship of that state cannot be reconciled with that state’s right to self-preservation by effecting an appropriate control of its borders.”133 Instead, the court opted to view the right as an aboriginal right, restricted, through historical evidence, by a discernable geographical scope.134 The court concluded that the evidence presented by the Mohawk tribal member “whether it is in the form of oral history, expert or documentary evidence of past practices customs and traditions, does not support the existence nor warrant the granting of an aboriginal right free of clear specific geographical limitations.”135 The court found that the free passage right given was similar to hunting and fishing rights that native groups still could exercise—that such rights are site-specific and do not create a general [*PG330]right exercisable everywhere.136 Thus, the court held that the free passage of goods right claimed by the Mohawk only extended to those goods bought in New York State.137 Similarly, the court held that Mohawk goods used for non-commercial uses (here, trading) would be limited only to those groups they were historically trading partners with the Mohawk.138 Although not explicitly stated, the court’s test of “practices and traditions or the terms of the Jay Treaty which is said to embody such practices and traditions” would seem to extend also to court review of free passage rights claimed by a member of a native group.139

Perhaps the most definitive case from the Canadian courts regarding interpretation of the Jay Treaty free passage right is Watt v. Liebelt.140 In this case, a member of the Colville tribe from the State of Washington,141 and a U.S. citizen, was convicted in Canada for growing marijuana.142 Like U.S. immigration law, such a conviction potentially places a person in danger of deportation, and the Colville member was brought before an immigration adjudicator for a determination of deportability.143 Complicating the matter was the fact that the Colville tribal member claimed to be a member of the Arrow Lakes band; the court noted that the Arrow Lakes band had been a group assigned a reserve in Canada in 1902, but, with the death of the last Canadian member in 1953, the group was declared extinct and the reserve reverted to the Crown.144 The question before the court was whether a non-Canadian, non-registered Indian claiming an aboriginal right to remain in Canada would be allowed to do so.145 The court considered this question in light of the language of Chapter I-2 of the Revised Statutes of Canada (R.S.C.) and also considered whether the passage of this section of the Immigration Act extinguished aboriginal rights to free passage.146 The court held that, [*PG331]by the exact wording of the Immigration Act, the defendant had no right to remain in Canada, as he was neither a Canadian citizen nor a registered Indian.147 However, as this finding implicated the extinguishing of a aboriginal right, the court was bound to consider whether the legislature or government had demonstrated a “clear and plain intention” to extinguish such a right.148 While holding that there was insufficient evidence to establish such a right, the court also held that insufficient evidence had been presented to establish such a “clear and plain intention” by the legislature.149 In remanding the case for further factual determinations, the court left open the possibility that a U.S. Native American citizen could claim the aboriginal right of free passage, given that the claimant could prove a “nexus” relationship to Canada in some sort of historical or contemporary cultural fashion.150

Herein lies the crux of the disparity arising between U.S. and Canadian treatment of the Jay Treaty free passage right: whereas the Canadian common law has restricted the free passage right only to those members of tribes that can demonstrate a “nexus” relationship with Canadian land, U.S. statute grants the right essentially without limitation.151 Thus, U.S. immigration authorities are bound by law to admit any Canadian-born Indian, apparently regardless of where in Canada the tribal group is located; conversely, Canadian courts restrict the right of entry by U.S. Indians to those groups that can demonstrate a historical right and practice to do so, thereby implicitly excluding vast numbers of U.S. Indians whose tribes were not traditionally located near the present U.S-Canadian border.152

[*PG332] Although the C.F.R. does not address the specific entry procedure,153 the Canadian government explains the entry procedure into the United States in a Frequently Asked Questions memorandum distributed by the relevant governmental agency, the Department of Indian Affairs and Northern Development (DIAND): “[Registered Indians] must present an identification card (Indian status card) at the border crossing. If they do not have a card, a written statement from the band council is required along with other documentation which proves possession of lineage derived from at least 50 per cent North American Indian people.”154 Under Canadian law, an individual is “registered” if his name is contained in the national Indian Register.155 An application for registration is made to the government, and the Registrar may make the addition—one aspect of eligibility is membership in a recognized band.156 Bands are statutorily empowered to make their own determinations of membership,157 which makes status as an Indian under Canadian law a band decision, if the band so chooses to assume the responsibility. Ultimately, the result is that Section 289 rights are granted to anyone with “card-carrying” status as a Canadian Indian.158 For those Indians who are not registered, access still is granted with a letter from the band council confirming membership, as well as some sort of documentation demonstrating 50% Indian blood.159

[*PG333]III.  Survival: Why?

A.  In the U.S.

The primary consideration for understanding the survival of the Jay Treaty free passage provision is the fact that it remained unchallenged in the courts until well into the twentieth century.160 By then, the Indian Wars were well over, and the status of U.S. Indians was as “wards of the nation,” standing “separate and apart from the native-born citizen.”161 Although some of the most difficult times to face U.S. Indians were still to come,162 a dramatic shift in general Native American policy was occurring simultaneously in the 1920s, with more culturally sensitive policies by the Bureau of Indian Affairs, and a more protective, paternalistic approach to Indian peoples as true “wards” of the U.S. government.163 These policies were buttressed by the massive social policies of the New Deal.164 Thus, it would be easy to draw the simple conclusion that Section 289 has enjoyed such liberal vitality in the United States based on coincidental, beneficial timing. Of course, other factors, such as deference to tribal sovereignty165 and long-term good relations with Canada,166 undoubtedly aided in the preservation of the statute.

B.  In Canada

The reasons for survival of the Jay Treaty free passage right in Canada are likely very similar to that of the United States: relative [*PG334]lateness in addressing the right167 and respect for fundamental rights of native groups.168 It is even more surprising, considering the lack of statutory support for the right.169 Courts in Canada have been forced to grapple with a vague “aboriginal rights” standard;170 this standard has forced the testing of prehistoric and historic ethnographic patterns, which, of course, may not be settled issues in anthropology and archaeology.171

C.  Other Free Passage Rights Under U.S. Law

In at least one instance, there has been a Congressional indication of intent not only to extend wardship over other Indians within U.S. borders, but also to extend the right of free movement to a group that traditionally did not inhabit the lands now bifurcated by the U.S.-Mexico border.172 Expansion of the liberal “aboriginal right” concept to free movement is demonstrated by Congress’ treatment of the Texas Band of Kickapoo Indians; this group was divided by the U.S.-Mexican border, creating essentially a rightless, landless tribe.173 Although granted a year-to-year parole status by Congress in the 1950s,174 living conditions of the tribe decreased so dramatically that Congress ultimately intervened to offer health and educational assistance in conjunction with the Mexican government.175 Most importantly, Congress extended the benefits of Section 289 to the band: “[n]otwithstanding the Immigration and Nationality Act, all members of the Band shall be entitled to freely pass and repass the borders of the United States and to live and work in the United States.”176 Like [*PG335]the C.F.R. relating to Canadian Indians, this language awards the band the statutory presumption of lawful permanent resident (LPR) status.177 While the Texas Kickapoo are granted free passage rights, members of the Tohono O’odham tribe in Arizona are subject to the same admission and deportation requirements as Mexican nationals simply for travel across their own traditional lands.178

Complete discussion of free passage rights for native groups situated on the U.S.-Mexican border is beyond the scope of this Note. However, two excellent articles have been written on the subject, one from an aboriginal rights perspective,179 the other from a human rights perspective.180

IV.  Possible Rectifications of U.S. and Canadian Interpretive Differences

The need to realign American and Canadian law regarding the free passage right under the Jay Treaty is apparent.181 The law in the United States, as buttressed by both statute182 and decisions from the federal courts183 and the immigration administrative body,184 is fairly well established. However, Canadian common law, once fairly generous in its construction of the Jay Treaty free passage right,185 now re[*PG336]quires a rather strict “nexus” test,186 rejecting any sort of “international mobility right” claimed by an applicant Indian.187

Resolution of this dilemma will likely not arise from analysis and construction of the Jay Treaty, as U.S. courts have held that the Jay Treaty has been abrogated.188 Abrogation issues aside, the Jay Treaty also does not have a single Indian signatory.189 As the Canadian court decision in Vincent noted, non-signatories to a treaty cannot claim protected privileges under that treaty.190 Similarly, passage of a new treaty would be all but impossible—Canadian law will not afford free passage rights unless the Indians are signatories,191 and the U.S. Congress forbade treaty-making with Indian Nations some 130 years ago.192

Perhaps the most logical solution is for Canada to pass a statute similar to that of Section 289 of the INA.193 A broadly-written statute, accompanied by similar regulatory provisions, perhaps would allow at least facial equality in the laws between the U.S. and Canada.194 Treatment of the statute in the Canadian courts, of course, would not necessarily be a mirror image of U.S. law, but it at least would put a halt to the ever-increasing restrictiveness of the common law “nexus” test that the Canadian courts have formulated.195 As in the United [*PG337]States,196 courts in Canada require a “clear and plain” showing of legislative intent before the rights of Indians will be considered restricted or eliminated.197

Continued vitality of the Jay Treaty free passage right might best serve as an experiment in the effects of free movement of persons and of goods in Canada and the U.S., helping to provide a basis for expansion of the provisions relating to immigration in the North American Free Trade Agreement (NAFTA) treaty.198 Although full discussion of the various NAFTA provisions relating to movement of citizens between the three signatory nations is well beyond the scope of this Note,199 an important aside is that although NAFTA does not provide relaxed movement of persons with immigrant intent,200 Section 289 and the C.F.R. do.201 Thus, the survival of Jay Treaty free passage rights might provide additional testing for immigrant-intent travel between the U.S. and Canada.202

Conclusion

The ultimate fate of the Jay Treaty, the Treaty of Ghent, and related legislation seems to be of some dispute, and both U.S. and Canadian courts are unsure how to treat it. Although the U.S. survival of the Jay Treaty and the Treaty of Ghent have been thrown into serious doubt by the Supreme Court’s holding in Albro, the fact remains that Congress has codified the Jay Treaty provision into U.S. immigration law as Section 289 of the INA, and the statute has remained virtually unchanged, despite crisis-level periods such as the Termination Era of the 1950s. However, the Canadian system never codified the Jay Treaty free movement provision, leaving Canadian courts struggling over the last fifty years with the vague, unmanageable “aboriginal rights” standard at common law. Such a standard has resulted in an excessively restrictive “nexus” test, especially in the last ten years, requiring the presentation and “trying” of anthropological and cultural data. The [*PG338]restrictive Canadian treatment, balanced against the liberal American treatment, potentially exposes interested individuals (members of native groups attempting to cross the U.S-Canadian border) to wild disparities in the law. Movement into the U.S. is highly deferential, and Indians enjoy great respect for prehistoric rights; however, movement into Canada essentially places the Indian individual on the same level as any other entering alien, despite his group’s occupation of the same borderlands for thousands of years preceding Great Britain’s establishment of the Canadian territories.

In fact, despite the various legal conflicts and questions that have arisen around the language, Congress has done virtually nothing to restrict or narrow 8 U.S.C. sec. 1359, leaving courts to broadly interpret the statute; similarly, some of the broadest interpretations of Section 289 can be found within the related federal regulations.203 Where some courts promptly dispense with the Jay Treaty (and the Treaty of Ghent) on the question of free passage of goods, other courts hedge the language in the Jay Treaty and subsequent law as merely stating a “natural law” sort of concept for free passage of individuals, a right enjoyed by Indians that preceded European arrival to the New World.

It is curious that such a right survives to this day on both the U.S. and Canadian sides of the border. This is especially true given the difficulties each nation has experienced in dealing both with immigration and Indian law. In the U.S. alone, these areas of law have undergone dramatic changes in policy in the approximately 200 years of independence. Immigration and Indian legislation in the United States is especially notable for periods of blatant racism, but through all of this, the policy of free movement of Canadian Indians has survived. The fact that 2% of the Canadian populous is eligible for LPR benefits, without ever having to fill out a U.S. immigration form, is tribute to the expansiveness and curiosity of the American statutory enactment of the Jay Treaty.

However, given the restrictiveness of the Canadian common law treatment of the Jay Treaty free passage right, it is clear that U.S. and Canadian laws will have to be rectified. If tribal sovereignty is to mean anything, it must at least mean that members of the sovereign are empowered to travel within and through their traditional lands with[*PG339]out interference from other sovereigns. The realignment of U.S. and Canadian treatment of the Indian free passage right needs to occur in order to preserve a right not only guaranteed in the post-Revolutionary War Jay Treaty, but also a right, by the Canadian courts’ own admission, that is older than European occupation of North America.

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