The Ship is Not the Only Vessel on the River: Revisiting First Nations' Mobility Rights under Article III of the 1794 Jay Treaty

• Author: Amelia Philpott
• Position: Has a BA in Modern Languages and Literatures from the University of Ottawa, and has just received her BCL and LLB from McGill University
• Pages: 153-173

APPEAL VOLUME 24

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ARTICLE 8

THE SHIP IS NOT THE ONLY VESSEL ON

THE RIVER: REVISITING FIRST NATIONS’

MOBILITY RIGHTS UNDER ARTICLE III OF

TH E 1794 JAY TREATY

Amelia Philpott *

CITED: (2019) 24 Appeal 157

ABSTRACT

In 1794, the Treaty of Amity, Commerce and Navigation (“Jay Treaty”) was concluded

between the United States of A merica and the British Crown. is treat y came on the heels

of the British-America n imposition of an international border, dividing the Haudenos aunee

Confederacy in ha lf without their consent. But while the Jay Treaty bears the signatu res of

only the two above-mentioned settler govern ments, they were not the only parties to the

agreement. Article I II provides that “Indians on both sides of the bounda ry line” are “free

to pass and repass” t he border. In this paper, I argue that courts have bee n wrong to reject

that this provision gives r ise to the Crown’s treaty promise to uphold the mobilit y rights

of the Mohawk and Huron claima nts who raised them. I argue t hat the provision must be

considered in light of the Crown’s pre-existing c ommitment to the Silver Covenant Chain

treaty all iance, premised on an entirely dierent conception of tre aty. I canvass two legal

developments which suggest t hat the Crown’s obligations to the Silver Covenant Chai n

would need to be central to any f uture Jay Treaty First Nations’ mobility rights cla ims,

and would support a nding in f avour of such rights.

* Amelia Philpott has a BA in Mod ern Languages and Literatures fro m the University of Ottawa ,

and has just received her BCL and L LB from McGill University. This ar ticle was originally written

as an independent term ess ay under the supervision of Dr. Mark Walters . Amelia extends her

heartfelt thank s to everyone who contributed the ir time, energy and knowledge to h elp her

with this paper; especi ally Dr. Walters, several members of the Rans om family (Jim, Karla and

Kyrie) and Joyce Tekahnawiiaks King. This p aper would not have been possible with out them.

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APPEAL VOLUME 24

TABLE OF CONTENTS

ABSTRACT .......................................................157

INTRODUCTION.................................................158

I. THE SHIP AND THE CANOE TRAVELLING DOWN THE RIVER

TOGETHER: ARTICLE III OF THE JAY TREATY AND THE SILVER

COVENANT CHAIN...............................................160

A. Settler-Colonialism and Human Rights Discourse .....................160

B. e Haudenosaunee Confederacy, the Fur Trade, and the Silver

Covenant Chain...............................................162

C. Polishing the Chain: e British Crown’s Promise to “Indians” in Article III

of the 1794 Jay Treaty...........................................165

II. OBSCURING THE CANOE FROM VIEW: JUDICIAL TREATMENT

OF JAY TREATY FIRST NATIONS’ MOBILITY RIGHTS .................167

A. Francis v the Queen.............................................167

B. R v Vincent ...................................................167

C. Mitchell v Canada (Minister of Natural Resources) ......................168

III. THE SHIP IS NOT THE ONLY VESSEL ON THE RIVER:

IMPLICATIONS OF THE UNITED NATIONS DECLARATION ON

THERIGHTS OF INDIGENOUS PEOPLES AND R V MARSHALL ON

SECTION 351 TREATY CLAIMS ...................................170

A. UNDRIP as a Framework for Legislative Change......................170

B. UNDRIP as a Source of Customary Law ............................171

i. UNDRIP and Customary Law Principles Interpreted by

Canadian Courts ...........................................173

ii. Implications of UNDRIP for Section 35(1) Aboriginal Treaty Rights ...174

C. e R v Marshall Section 35(1) Treaty Interpretation Framework..........175

CONCLUSION ...................................................176

INTRODUCTION

“e roots of life of the Haudenosaunee are in Haudenosaunee lands and hands , entwined

with the symbolic great white pine, the Tree of Peace. e organic nexus of the confederacy

is a network of the White Roots of Peace moving out from this t ree. Even through turbulent

and often dishear tening centuries of colonial intrusion, the r oots grow in the rich, dark earth.

Below the topsoil, th ey quietly transgress all artici al boundaries of nation-state and surve yed

property lines; the y have no delity to land titles.”

– Vera B. Palmer1

Imagine that you had b een happily living in your neighborhood for as long as you could

remember. You had carefully selected t he place you were going to live based on proximity

to your work, the grocery store, and a go od school for your children. Suddenly, a new group

of residents decides to form a neighborhood committe e. is committee ta kes it upon

itself to make decisions for t he wellbeing of the community, and one day, they decide to

draw a border through t he neighborhood. is border runs right throu gh your front yard,

1 “The Devil in the Details: Controverti ng an American Indian Conversion Narra tive” in A. Simpson

and A. Smith, eds.,Theorizing Native Studies (Durham: Duke Universit y Press, 2014) 266 at 292.