Transcript Blurring lines: Arctic Indigenous Peoples and trans

OUTLINE
1. Introduction
2. The Jay Treaty
3. The Inter-Jurisdictional
Problems Facing Arctic
Indigenous Peoples
4. The Jay Treaty Approach
in a New Context –
Toward Sovereign TreatyMaking
5. Conclusion
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.
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.
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. 289. [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.
TP 2 –THE INTER-JURISDICTIONAL PROBLEMS FACING
ARCTIC INDIGENOUS PEOPLES TODAY
TP 2 – THE INTER-JURISDICTIONAL PROBLEMS FACING
ARCTIC INDIGENOUS PEOPLES TODAY
Attributed to a lack of normal sea ice, some
35,000 walrus gather on shore near Point
Lay, Alaska, in September 2014.
• 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.
TP 3 – JAY TREATY APPROACH – NEW CONTEXT
1990
1975
• 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.
1993
TP 3 – JAY TREATY APPROACH
The Jay Treaty:
1.
2.
3.
4.
5.
6.
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.
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.