New laws infringe on Aboriginal rights
SEATTLE - Wearing a shirt proclaiming "We didn't cross the border, the
border crossed us" may be a powerful political statement, but it won't put
you any further ahead in this post-Sept. 11, 2001 era of border security.
First Nations people are supposed to "at all times be free ... on either
side of the said boundary line, freely to pass and repass by land or inland
navigation," according to the John Jay Treaty, negotiated in 1794 by the
governments of England (representing Canada) and the United States. The
treaty recognized that the U.S.- Canada border intersected many traditional
As a result, First Nations people are supposed to be able to move back and
forth across the border at will. But with Canada refusing to recognize the
Jay Treaty, and the United States tightening border security after the
terrorist attacks of 9/11, such movement has become increasingly difficult.
For Canadian-born Natives living in the United States, the problems are
"I'm taking a big chance every time I cross the border," said Parker Mack.
"I was told I needed a 'green card,' but then I have to stay here for a
year and a half," added Dwayne Martin who, like Mack, is a Canadian-born
Nuu-chah-nulth living in Seattle.
Although Customs officers are trained in legislation dealing with First
Nations and American Indians, there still seems to be confusion among
officers. Currently, a status card is all that is needed to cross the
border, but those wanting to work outside their country of birth may have
to go through immigration processes.
The U.S. government cannot exclude a First Nations person from entry, or
deny services to the Canadian Native. Nor can it impound or search sacred
objects in possession by an Aboriginal person, which have religious
significance to them. And employers cannot deny them employment for lack of
a green card, or alien registration card.
For First Nations people wanting to work in the United States, they must
have at least 50 percent Native ancestry, have a letter from their nation
or a recognized First Nations organization supporting this claim, and a
long-form birth certificate.
For American Indians wanting to work" in Canada, the process is much more
The Canadian government never truly incorporated the Jay Treaty into
permanent statutory law. Instead, Canadian courts have been sustaining the
Jay Treaty provisions through common law treatment, typically under the
"Aboriginal rights" doctrine. In the last decade 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.
An American Indian has to demonstrate a cultural or historical "nexus" to
the specific area in Canada he wishes to visit. In fact, this "nexus" test
even has been applied to Canadian Indians re-entering Canada, disallowing
Jay Treaty privileges where a Canadian Indian did not cross in an area his
tribal group did not historically transverse.
U.S. immigration authorities are bound by law to admit any Canadian-born
Aboriginal, 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 border.
Because the Jay Treaty does not have a single Indian signatory, as the
Canadian court decision in Vincent v. Canada noted, non-signatories to a
treaty cannot claim protected privileges under that treaty.
"The restrictive Canadian treatment, balanced against the liberal American
treatment, potentially exposes interested individuals [members of Native
groups attempting to cross the U.S.-Canada border] to wild disparities in
the law," wrote Nickels. "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," he wrote.
"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 without interference from other sovereigns. The
realignment of [the] United States' and Canada's 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."