22 June 2009

Making artificial borders more permeable

The Jay Treaty (USA & Britain, London, 1794), also known as the “Treaty of Amity, Commerce and Navigation of 1794”, declared and affirmed the right of Native Americans in both the USA and Canada to cross the border between the two nations. Today any Canadian-born Native American with 50% aboriginal blood can live and work in the USA without any immigration restrictions.

The USA has never gotten around to implementing the part about duty-free transport of “proper goods” across the USA—Canada border. For its part, Canada is even less well behaved, with a case that should determine the right of First Nations people to freely cross into Canada stalled in the Supreme Court.

Aside from hoping that the above issues in aboriginal border crossing are resolved soon, I’ve been pondering proposing something to my US Senator and Representatives when I move back to Alaska. (Right now they needn’t listen to me since I’m technically a Hawaiian citizen.) I’d like to see that all aboriginal nations whose traditional territories straddle the Canada—USA border have the following rights:
  • reasonably unimpeded, expedited access across the border to traditional territories

    • this might mean that Tlingits going from New York to Ontario couldn’t expect to be quickly waved through, but they could from Alaska to British Columbia, for example

    • essentials of border security would still apply, but regular border-crossers would have some rapid crossing assurance, à la the NEXUS program, but influenced by tribal membership

  • exemption from duties and tariffs on gifts and customary trade goods (e.g. traditional foodstuffs, indigenous animal products, cultural artifacts and arts)

    • this would encourage cultural revitalization, helping revive traditional trade routes

    • this would also formalize de facto trade, relieving many people of significant border anxiety

    • determining exactly what constitutes customary trade goods would have to be left up to border officials, or beyond that the courts, although some things would be easy enough to give as official examples

    • the list would have to be equal in both directions, so if one nation determines something to be a “customary trade good” then the other nation is bound by treaty obligation to accept the definition as well

      • meaning that Canada couldn’t weasel out of allowing aboriginal transport of (small amounts of) firearms, since they were customary trade goods in the past and the USA wouldn’t have much problem with them

    • quantities would need to be negotiable, perhaps defined legally defined with a weasel word like “reasonable”, because some goods are traded in bulk (e.g. foods, furs, blankets, clothing, plant products, religious and cultural paraphernalia) but some aren’t or couldn’t be (like tobacco, live plants, live animals, precious metals and minerals)

    • some gifts and goods like firearms and ammunition would need to meet existing regulatory standards on the importing side of the border

    • it would be reasonable to require sworn statements as to the purpose of importation, and that the trade is with aboriginals and not for wider commerce

    • goods would still need to be subject to inspection

  • permission for regulated cross-border trade in certain legally obtained but restricted goods (e.g. marine mammal products, eagle feathers, migratory waterfowl)

    • this is properly part of the previous point, but there are other treaties involved that would interfere and the issues should be made explicit to avoid lengthy court battles

  • reciprocal aboriginal status in both countries (e.g. for educational institutions, medical services, etc.)

    • I am unaware if this is partially the case in the USA for Canadian-born aboriginals

    • it is most definitely not the case for USA-born aboriginals in Canada

  • given tribal membership on one side, a tribal government on the other side has the option of accepting the individual as a citizen

    • this would enhance the reciprocity of aboriginal status by clarifying what tribes individuals are enrolled in on both sides

    • tribes would have the duty of determining which individuals were enrolled but not resident in their countries, since otherwise enrollment figures would quickly inflate

    • cross-border marriages and adoptions would be much simpler given this situation, indeed they might occur more often

  • expedited review of citizenship applications

    • due to cross-border marriages, work, and other cultural connections, there is no doubt that individuals would apply for citizenship in their non-birth country

    • individuals shouldn’t have to prove “worthiness” to live with their cousins on the other side

    • worries about “welfare floods” could be discounted easily: fix the problem on the other side!
I don’t think that such things are too much to ask. After all, the USA-Canada border is essentially arbitrary in most places, and does not respect the groups who are now divided. Perhaps with some effort the two countries could draw up a new treaty which relieves both nations of existing obligations and clarifies the situation on both sides, making it as equal as possible for citizens of both countries.

The USA can continue to be generous and allow any Canadian First Nations into the USA, but I’m not really considering this. I’d like to see my suggestions applied just to the indigenous nations who are known to have had traditional territories on both sides of the border at the time that the border was enacted. This should be relatively easy to figure out by consulting existing anthropological and linguistic literature, which is pretty extensive for most North American peoples. For example, Iñupiat people didn’t exist in Canada at when the border between Alaska and the Yukon was settled. In contrast, the Gwichʼin certainly did exist on both sides, as they do today. Same for the Slave versus the Mohawk. Having a list of such groups would be a prerequisite for drafting a solid treaty.

In the future, perhaps we might see boats again going up the Taku and Stikine laden with fish, grease, and eggs, and returning with meat, furs, skins, quills, and baskets. Well, more likely that people would drive laden pickups on the roads from Haines and Skagway.

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