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.