“I’ve never voted in an American election or a Canadian election. I’ve always thought that was their system, not ours,” says Myeengun Henry, a member and former chief of the Chippewas of the Thames First Nation. But the 2020 American election made him reconsider. “I started seeing what was happening in the United States, and even in Canada, with Black Lives Matter and the racism that’s being exposed — the whole Trump administration years and how crazy things went,” he says. “I didn’t like it … so I started exploring my ability to vote, and I found out there was nothing stopping me from casting a ballot, except for my own feeling of not being an American or Canadian.”
After navigating many obstacles — having no residence in the United States, delays in receiving a ballot, having to send in multiple application forms to vote from abroad — Henry successfully mailed in his 2020 election ballot on September 29.
As a member of the Anishinabek Nation, Henry cited his rights under the Jay Treaty of 1794 to vote in the election. “It’s the challenge of trying to exercise our rights and people not knowing the laws,” says Henry. “Canadian First Nations people can live in the States, fight in their country, die in their country, and not have a right to vote or be treated this way. I don’t want that to happen to anybody else. That’s why I pursued this battle.”
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The Treaty of Amity, Commerce and Navigation, known as the Jay Treaty or Jay’s Treaty, between the United States and Great Britain, was signed in November 1794 and ratified in October 1795. Following the American Revolutionary War, some Indigenous nations were bisected by the newly established Canadian-U.S. border, which interfered with peaceful travel and commerce. Article III of the Jay Treaty stated that Great Britain and the U.S. would allow First Nations people to live on either side of the newly established border, to freely cross the border, and to not be subjected to duty or taxes on their “own proper goods” when crossing.
The United States government has honoured this agreement. According to the U.S. Embassy, “Under the treaty and corresponding legislation, Native Indians born in Canada are entitled to freely enter the United States for the purpose of employment, study, retirement, investing, and/or immigration.” To be eligible, a person must, at the port of entry, provide evidence of their “American Indian background,” which means at least “50% American Indian blood.”
However, on the Canadian side, the treaty is not recognized as binding: the position has been challenged by many Indigenous nations, including Haudenosaunee Nations, whose lands span colonial borders. Audra Simpson, a Mohawk scholar and professor of anthropology at Columbia University, chronicles some of her experiences crossing the border from Canada to the U.S. in her book Mohawk Interruptus: “Crossing the border and exercising rights may be a daily exercise for someone from St. Regis or a weekly exercise for an ironworker from Kahnawá:ke,” she writes. “Although crossers may perceive themselves as members of a sovereign nation, the state may not.”
Henry and his five siblings grew up in Detroit. He says that he believes his parents moved to the U.S. to try to blend in and escape their experience with residential schools in Canada — and that, in an effort to protect their children, they avoided teaching them about the culture. Eventually, though, Henry wanted to know more: “I learned that when the United States was born and when Canada was born, they grew that right on Indigenous communities. And we weren’t even invited to participate in those settlements, so we maintained our sovereignty, we maintained our ability to govern ourselves, and this is the belief I grew up with.”
In Mohawk Interruptus, Simpson explores how Indigenous nations’ positions across colonial borders affect ideas around citizenship: “Does an affiliation with the state or lack thereof translate into citizenship? Does geographic positioning translate into a form of citizenship? In other words, if you are born in a place, does that mean that you are of that place? What if you refuse this tacit form of citizenship? And, how do you refuse it?” For Henry’s part, he says, “They might classify me as a citizen and that’s okay — they can classify me all they want — but I know who I am [as an Anishinaabe person].”
For more than three decades, Michael Kanentakeron Mitchell served as the elected grand chief of the Mohawk Council of Akwesasne, a community that encompasses portions of Quebec, Ontario, and the state of New York. “Border crossing for Indigenous people has a long history in Canada,” he says. “We’ve argued it from the very beginning.” In March 1988, Mitchell and a group of community members from Akwesasne crossed the border from New York State at the Cornwall International Bridge, bringing with them household items, appliances, and a number of other goods. “We came back, declared everything, and then I refused to pay the taxes on it and that’s where I invoked my rights,” says Mitchell.
According to court documents, the custom duty owed was $361.64: Mitchell refused to pay it, citing Aboriginal and treaty rights. “It was a caravan of cars and trucks of residents,” he says. “I was in the middle, so they refused to let RCMP and OPP arrest me, and we took [the caravan] to Tyendinaga. We donated a refrigerator, a washing machine, household goods, food, and we reinvoked the right of trade between First Nations.”
This became a test case on the rights of Indigenous people to cross the border freely and without having to pay any duty or taxes on goods. “[Our case] was heard before the Federal Court of Canada and, a year later, the court pronounced its decision, and I won everything,” Mitchell says. “Coast to coast, we had a right to cross, we had a right to trade, and, on those merits, to renegotiate the whole deal, because Canada had refused to recognize any parts of the Jay treaty.”
However, the government appealed the decision, stating that Mitchell would have to prove, at the Supreme Court, that the Mohawk Nation had an ancestral practice of trading north of the St. Lawrence River. The court ruled that Mitchell did not have enough evidence to establish trade across the St. Lawrence. “I was so disillusioned and frustrated, even hateful at Canada for what they wound up doing,” he says. “So I never went back to court.”
“Can we vote over there? Can we go to school? Can we work over there? The answer is ‘Yes,’” says Mitchell. “We had the same rights as other Native American tribes, so people have invoked that right. We live right on the border, and half of Akwesasne is in the United States, so we tend to utilize that recognition as much as we can in our treaty relations. Most of our people work in the United States, so it’s a big deal for us.”
In 2016, the Standing Senate Committee on Aboriginal Peoples reviewed and provided recommendations pertaining to border crossing and the Jay Treaty. Its final recommendation was for the Minister of Indigenous and Northern Affairs to appoint a special representative to explore further solutions to address Canada-U.S. border-crossing challenges faced by First Nations communities in Canada.
The resulting report, issued in August 2017, included a list of solutions. The first on the list was the ratification of the Jay Treaty by Canada: “While it is not considered the source of their inherent rights, the Jay Treaty has nonetheless become a powerful symbol of the recognition of these rights for many First Nations,” it reads. “There is therefore a belief held by many that a Canadian recognition and implementation of the provisions of the Jay Treaty relating to First Nations will resolve most, if not all, of the issues explored in the following paragraphs.” The following paragraphs go on to detail the adverse impacts on family and cultural connections, acceptable identity documents at ports of entry, treatment by Canada Border Services Agency officers, trade and personal goods, locations of ports of entry, and the unique situation in Akwesasne.
In an ongoing case that started in 2010, Richard Lee Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State and a U.S. citizen, entered Canada near Castlegar, British Columbia, and was arrested for having hunted an elk without a license. Desautel has challenged the charges on the grounds that he was exercising his constitutional rights to hunt on the traditional territory of his Indigenous community, the Sinixt First Nation, which straddles the Canada-U.S. border. “It will have implications if Canada’s Supreme Court gives formal recognition,” Mitchell says. “That might pressure the government into making it formal.”
While the Jay Treaty doesn’t explicitly mention citizenship, Henry says, the larger point is that many First Nations people don’t view themselves as citizens of either country: “I will never be an American or Canadian. I’m Anishinaabe, and that’s what I’ll always be.” However, the governments of both nations, he notes, make decisions that affect the Indigenous nations on whose lands they live. “I want to have a say in who’s going to be making those decisions,” he says. “I’d tell future generations, don’t feel that you’ve given up your Indigenous rights because you voted in American or Canadian elections. A lot of people hold that very personal. They say, ‘If I vote in the election, that means I’m a citizen of their government.’ But we don’t have to be — we can still be ourselves.”
This is one of a series of stories about Indigenous issues brought to you in partnership with Carleton University’s School of Journalism and Communication.
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