Marcia Zug of South Carolina Law School has published “Gone but not Forgotten: The Strange Afterlife of the Jay Treaty’s Indian Free Passage Right” in the Queen’s Law Journal. Here is the abstract:
For members of North American Indian tribes, travelling from one side of their reservation to the other sometimes involves crossing the Canada-United States border. The right of North American Indians to pass that border was originally recognized in the Jay Treaty of 1794. This treaty right, the author maintains, was inconsistent with the state of war which arose between Britain and the U.S. in 1812, and was therefore implicitly abrogated by the War of 1812. As the relevant provision of the treaty was never reinstated, there is now no treaty-based justification for the right of free passage.
For Canadian Indians entering the United States, the author argues, the free passage right continues to exist, but it now stems from a statutory source: the U.S. Act of April 2, 1928, codified in 8 U.S.C. 1359 and commonly known as the “free passage statute.” Judicial recognition that the right is based in statute, and not in the Jay Treaty, is long overdue.
After providing a historical overview of the Indian free passage and duty-free rights, the author argues that confusion in the courts about the source of these rights has had negative consequences for both American and Canadian Indians. They believe, understandably, that the free passage and duty-free rights are grounded in the Jay Treaty and that the Canadian and American governments are unjustifiably refusing to recognize them as treaty rights. Further confusion results from the differing treatment of free passage in each country–confusion that has been compounded by inconsistent court decisions. The author also addresses the differing American and Canadian definitions of “Indian,” and their effect on eligibility for American federal benefits. Finally, the author posits that much confusion could be eliminated, and that Indian interests could be better served, by foregoing any further attempt to ground the free passage right in the Jay Treaty and by recognizing instead that it has a statutory basis.
Turtle Talk 
In reply to the dissertation titled “Gone but not Forgotten: The Strange Afterlife of the Jay Treaty’s Indian Free Passage Right” published by the Learned Marcia Zug of South Carolina Law School in the Queens Law Journal, I must respectfully dissent.
In this writer’s humble opinion, it would appear from a cursory review of the abstract above that the veracity of the premise upon which this dissertation relies for its ultimate conclusion is irreconcilably flawed. The Learned Marcia Zug substantially relies upon the premise that the right of North American Indians to free passage between the US – Canadian border recognized in the Jay Treaty of 1794 was subsequently inconsistent with the state of war between Britain and the U.S. in 1812. As such, the author contends, this right was implicitly abrogated by the War of 1812. The author then concludes that since the relevant provision of the treaty was never reinstated, there is now no treaty-based justification for the right of free passage. Rather, the only possible bases for a continued recognition of any such right to free passage can only be found in a United States Act of April 2, 1928, codified in 8 USC 1359.
However, the author overlooks a pertinent Article within the Treaty of Ghent which concluded the War of 1812. This Article plainly guarantees that all rights held by Native Americans prior to the War of 1812 would remain intact.
The Treaty of Peace and Amity between Great Britain and the United States of December 24, 1814, commonly referred to as the Treaty of Ghent, specifically states, in relevant part:
The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possession, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always, That such tribes or nations shall agree to desist from all hostilities, against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly. And his Britannic majesty engages, on his part, to put an end immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he may be at war at the time of such ratification, and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to, in one thousand eight hundred and eleven, previous to such hostilities: Provided always, That such tribes or nations shall agree to desist from all hostilities against his Britannic majesty, and his subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly.
See Article Nine, Treaty of Ghent- id.
Thusly, the right to free passage between the US and Canadian borders continues to remain a viable right guaranteed by Treaty.
I’m no expert on the Jay Treaty or the Treaty of Ghent, but I do think you need to read the rest of the article. Acts of Congress can unilaterally amend older treaties, and federal Indian law is replete with unilateral amendments of Indian treaties. I don’t see this paper as “irreconcilably flawed.” But there surely is room for thoughtful disagreement.
Thank you for your thoughtful comments. Article Nine of the Treaty of Ghent is an important consideration against any argument that the Jay Treaty has been abrogated. I attempt to address this point in my article by noting that Article Nine was not self executing but rather, it needed ratifying legislation and that such ratifying legislation was never enacted. We can certainly disagree as to whether such ratifying legislation was necessary but I was not unaware of the importance of Article Nine.