'I have a right to be here,' says Cree woman living in U.S. under Jay Treaty

As concerns about U.S. immigration issues ramp up with Trump's executive order on birthright citizenship and Immigration and Customs Enforcement (ICE) raids, some First Nations people are worried about how their Jay Treaty rights might be impacted. 

Signed in 1794 between Great Britain and the United States, the Jay Treaty allows "American Indians" born in Canada to freely enter the U.S. for travel, studies, employment, retirement and immigration. It doesn't work the other way because Canada doesn't recognize the Jay Treaty; it considers it cancelled by the War of 1812 and it was never codified in Canadian legislation.

Jason Henry, former chief of the Chippewas of Kettle And Stony Point First Nation in southwestern Ontario, said the treaty affirms the right to free trade and "to go and visit family or friends or conduct any activities."

"There's no way to stop us per se, as long as the U.S. border deems that we're entitled to those rights," he said.

Gregory Ablavsky, Marion Rice Kirkwood professor of law at Stanford Law School in California, says Trump would have a difficult time trying to halt Jay Treaty rights. 

"An executive order cannot — as a matter of constitutional law — repeal a treaty right," he said.

"It would take an act of Congress in order to repeal a treaty right. Also, the Jay Treaty free passage right has also been codified into a federal statute, so that also is a matter of federal law." 

Living south of the border 

In 2017, during Trump's first term as president, Desirae Desnomie, originally from Peepeekisis Cree Nation in Saskatchewan moved to the U.S. to live with her partner, who is originally from the Bois Forte Band of Chippewa in Minnesota.  

"We decided to meet halfway … and move to North Dakota," said Desnomie. 

"It's the most Canadian state ever."

To move to the U.S., Desnomie says she needed a long form birth certificate, her status card, and a blood quantum letter from her First Nation.

"If your parents are treaty status and your grandparents are treaty status, that gives you the blood quantum enough to cross …. You need 50 per cent," said Desnomie. 

Desnomie is classified as a legal alien, which gives her the right to work in the country as a powwow performer — something her entire family does. 

"I'm a little bit nervous when we come back and forth across the border …. That uncertainty is what's bothering me," said Desnomie. 

"Are we going to have to decide to come over to Canada and move back?"

Desnomie says she has seen posts about ICE raids on social media. She says her documents are always nearby, but if challenged by agents, she plans to stand up for her rights.

"I'm not going to get punked … off my own land," said Denomie. 

"I have a right to be here. My ancestors, my relatives have been here since time immemorial. I will hold my own and I will scream it from the rooftops, if need be."

The Federation of Sovereign Indigenous Nations (FSIN), which represents 74 First Nations in Saskatchewan, said in a news release last week it had received accounts of border agents denying Jay Treaty rights. 

"FSIN will ensure that the governments of Canada and the United States be held accountable for ensuring the rights of First Nations peoples are upheld at border crossings," the release said.

"First Nations have always maintained peaceful crossings of the Medicine Line, and this historical agreement must continue and be respected." 

Jay Treaty the solution to tariffs?

With the threat of tariffs looming, last week Trudeau spoke to Indigenous leaders, asking them to lobby for Canada with their counterparts in the United States. Not everyone agreed. 

"The MCK will not lend their support to a government that has historically been dismissive of Indigenous rights and has participated in systemic attempts at the erasure of First Nations peoples," said the Mohawk Council of Kahnawà:ke last week in a statement.

Henry says Canada might need to do more than ask First Nations to lobby for them — First Nations might be the key to getting around the tariffs all together. 

"We have free trade; help us enforce that. Acknowledge our Jay Treaty rights," said Henry. 

CBC Indigenous reached out to Indigenous Services Canada, and did not hear back before time of publishing.