1. Arctic Indigenous peoples and trans-border migration
By: Benedict Feist
Blurring lines
Arctic Indigenous peoples and trans-border migration

2. Outline Introduction The Jay Treaty
The Inter-Jurisdictional Problems Facing Arctic Indigenous Peoples
The Jay Treaty Approach in a New Context – Toward Sovereign Treaty- Making
Conclusion

3. TP 1 – The jay treaty
A post US-war of Independence Treaty between Canada and the United States.
Reached in 1793 following the end of hostilities in US War of Independence in 1883.
John Jay was a US diplomat, one of the founding fathers of the United States, and first Chief Justice of the United States.
The treaty was formally called the Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America.

4. TP 1 – The jay treaty
Subsequently confirmed following the War of 1812 in the Treaty of Ghent.
Remains legally in existence between Canada and the United States.
Relevant section:
“also to the Indians dwelling on either side of the 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 to navigate all the lakes, rivers, and waters thereof, and freely to carry on trade and commerce with each other.”
This was legislated in the United States during the 1920s.

5. TP 1 – The jay treaty
The US Immigration and Nationality Act still includes a specific provision relating to Indigenous people which has its historical roots in the Jay Treaty.
Sec [8 U.S.C. 1359] “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.”
This has been held to apply in some extreme cases, including the 1978 Yellowquill case in the United States.

6. TP 2 –The Inter-jurisdictional PRObLEMS FACING ARCTIC INDIGENOUS PEOPLES TODay
The wreck of the Kulluk is a good example of an arctic interjurisdictional environmental issue which transcends traditional state borders.

7. TP 2 – The Inter-jurisdictional PROBLEMS FACING ARCTIC INDIGENOUS PEOPLES Today
Climate change has impacted traditional subsistence activities throughout the Arctic region.
Pollution.
Climate change refugees.
Bioaccumulation of pollutants / contaminated breastmilk.
Externalization of costs on inhabitants of the region. Corporations will not pay for the environmental effects of their activities if this can be prevented.
Attributed to a lack of normal sea ice, some 35,000 walrus gather on shore near Point Lay, Alaska, in September 2014.

8. TP 3 – JAY TREATY APPROACH – NEW CONTEXT
1990
Applicability of the Jay Treaty approach today.
Back to the idea of arbitrary imposition of borders.
Broad approach which accepts sovereign treaty-making for Indigenous communities in the North, as an international approach.
This is difficult, due to differing constitutional regimes across circumpolar nations dealing with Indigenous peoples.
Canadian context is also complex:
Duty to consult. Recent Supreme Court decisions.
Patchwork of modern and historical treaties.
1975
1993

9. TP 3 – JAY TREATY APPROACH
The Jay Treaty:
Was enacted in a time of immense pressure, when there was limited understanding of its future legal effect.
Recognized that Indigenous people required special treatment under the law to achieve an equitable result.
Was predicated on common sense and pragmatism.
Used a simple mechanism to solve complex issues.
Reduced conflict through a recognition of equality.
Recognized Indigenous sovereignty.
Circulated between 1974 and 1979, the two-dollar bill above features Joseph Idlout and his relatives preparing their kayaks for a hunt near Pond Inlet, and is based on the photo below. Later in life, Idlout was hired as an Inuit advisor to Indigenous people from ‘southern’ Quebec, who were forcibly relocated to Resolute Bay and Grise Fiord.

10. Conclusion
The arbitrary imposition of state borders on Indigenous peoples has been tremendously harmful for these communities.
The approach which has been historically used through mechanisms such as the Jay Treaty may be useful as a broader ‘policy philosophy’ in circumpolar regions.
New threats such as climate change, increased shipping in the region, pollution, and resultant ecological damage threatens to destroy Indigenous subsistence activities.
Finding an appropriate middle-ground between balancing the inalienable rights of Indigenous peoples to continue their way of life and govern their own territory will be a continuing public-policy challenge over the next century.