Native American Free Passage Rights Under the 1794 Jay Treaty: Survival Under United States Statutory Law and Canadian Common Law

Abstract

Since 1794, Native American groups in both the United States (U.S.) and Canada have enjoyed the right of "free passage" across the U.S.-Canadian border per the provisions of the Jay Treaty. However, development and recognition of this right have taken decidedly different courses: while the U.S. has treated the right very liberally under statutory codification, the Canadian government has opted to develop, and restrict, the right under their courts' common law. This Note discusses the origin and development of the "free passage" right under the Jay Treaty, and encourages both the continued recognition of the right, as well as a stronger Canadian common law effort to harmonize treatment of the right with U.S. jurisprudence.