Superimposed Nations: The Jay Treaty and Aboriginal Rights

Abstract

Using the Blood reserve in Southern Alberta and the Blackfeet reserve in northern Montana as a case study, the Canadian legal system should recognize an inherent aboriginal right to cross the Canada-US border. This is not to suggest that such a right exists only upon recognition by the courts; rather, it is an acknowledgment that First Nations must assert control over their rights, either by court challenge, or by negotiations with the Canadian government. The latter course may be more flexible with respect to remedy. Questions of who is to be considered aboriginal for the purposes of the right, who may determine who is eligible, and who may determine the scope of the right could be determined by consultation with aboriginal groups. If a court challenge were successful, however, it might provide a catalyst for negotiations. The paper canvasses the legal situation governing cross-border movement by aboriginal groups as of 1995, the historical context, and the relevance of American and Canadian immigration, customs, and constitutional law.