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March 16, 2015

Happy 200th birthday, Treaty of Ghent

by WSBA
Peace Arch separating the U.S. from Canada
2015 commemorates the bicentennial of the Treaty of Ghent. Discover its history and how it continues to affect American Indian rights today.

Peace Arch separating the U.S. from Canada

In February, the Treaty of Ghent marked its 200th birthday. The peace treaty was signed on Christmas Eve, 1814, and was ratified by the U.S. Senate on Feb. 16, 1815, ending the War of 1812.

Many Washingtonians know of our state’s “Peace Arch border crossing,” named for the prominent Peace Arch monument at the center of the state and provincial park separating the U.S. (at Blaine, WA) with Canada (at Surrey, British Columbia). Many do not know that the monument, built by Pacific Northwest entrepreneur Sam Hill and dedicated in 1921, actually commemorates the signing of the Treaty of Ghent, or just how relevant the Treaty of Ghent remains today.

The Treaty of Ghent is inextricably bound with another treaty from the period: the Jay Treaty. In 1794, the United States and Great Britain negotiated the Jay Treaty, established in part to mitigate tensions with native peoples whose lands were bisected by the recently established boundary line between Canada and the United States. It was named for U.S. Supreme Court Chief Justice John Jay, whom George Washington named as chief negotiator. In relevant part, Article III of the Treaty gave native peoples the right to freely access the United States:

It is agreed that it shall at all times be free to… the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America…

During the War of 1812, Jay Treaty rights were suspended. In 1815, the ratification of the Treaty of Ghent ended the War of 1812 and established peace between the United States, Great Britain, and Canada. But how did the War of 1812 affect treaties predating the war, including the Jay Treaty?

The U.S. Supreme Court held in Karnuth v. United States that the War of 1812 abrogated the Jay Treaty and that, following the war, the Treaty of Ghent revived the rights of native tribes predating that conflict. 279 U.S. 231 (1929). Despite this Supreme Court opinion, a wide range of other theories also exist as to the implications of the War of 1812 and the Treaty of Ghent on the Jay Treaty:

  • Some argue that the rights were abrogated by the War of 1812 and revived by the Treaty of Ghent, and that they were later reaffirmed by statute.
  • Others argue the Treaty of Ghent did not revive the Jay Treaty, and Jay Treaty rights exist now only by virtue of statute.
  • Still others maintain that Jay Treaty rights were permanent in character and could not be abrogated by war, and that the Treaty of Ghent simply reaffirmed rights already in existence.

Regardless, all agree that the Treaty of Ghent is an important piece of Jay Treaty history.

The rights and benefits originally set out in Article III of the Jay Treaty continue to be recognized as “in effect” by the Department of State, and are now codified at Section 289 of the Immigration and Nationality Act. To this day, it continues to bestow upon American Indians born in Canada the right to freely pass the border and remain in the United States for any purpose, virtually unrestricted by the Immigration and Nationality Act. Fittingly, many individuals accessing the U.S. as American Indians born in Canada today do so at the Peace Arch border crossing.

More information about the Jay Treaty, the Treaty of Ghent, and the current right of American Indians born in Canada to freely access the United States can be found at www.jaytreaty.com, where we track our research and publications on this topic.

Read more from History, Indian Law Section

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