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Jay Treaty on Trial

New Brunswick's John Harmon seeks to clarify Canadian government's position on free passage

by Miles Howe

74 year old John Harmon now finds himself at the centre of a Jay Treaty-based challenge to his expulsion from Canada. [Photo: Friends of John Harmon]
74 year old John Harmon now finds himself at the centre of a Jay Treaty-based challenge to his expulsion from Canada. [Photo: Friends of John Harmon]

REXTON, NEW BRUNSWICK -- By neighbours' accounts, Kent County, New Brunswick's, John Wayne Harmon was until very recently living something of the hermit's life. The 74 year old Harmon tended a small acreage, kept a variety of livestock, and lived 'off the grid' in a simple, modified, trailer.

As the story goes, Harmon put a downpayment on the acreage, which was then owned by local woman Terressa Peters, in 2007. Harmon has the cheque stubs to prove that for the following three years, payments of $250.00 per month were written to – and accepted by – Peters. The final cheque in Harmon's series, that of November 2011, has the words 'final payment' written on it. Harmon and Peters, however, apparently did not follow through on transferring ownership of the property into Harmon's name.

Which is where Harmon's simple life in rural New Brunswick begins to unravel.

Martin Desroisiers, Harmon's neighbour to be, initially moved into the property adjacent to Harmon's. According to Harmon, the two got along well. Harmon helped Desrosiers build his home. It appears, however, that Desroisiers subsequently researched into the legal ownership of his neighbour's property. When he found Peters' name still attached to the property deed, Desroisiers purchased the property – some might say again – from Peters.

With the deed in hand, according to Harmon, Desroisiers initially told his neighbour that he could remain on the property, in a trailer, but that he would not be allowed to keep any animals, and the house he was living in would be torn down. When Harmon balked at the offer – he still believed himself to be the owner of the property – neighbours attest that Desroisiers bragged he was going to call immigration on Harmon, who he knew to be a citizen of the United States of America.

On April 8th, 2015, constables from the Royal Canadian Mounted Police subsequently arrived, and promptly evicted Harmon. According to the Facebook group 'Grandmothers for John Harmon', the U.S. Consul in Halifax has agreed to request copies of the April 8th 'Complaint(s) and Incident Report' that would have been filed by the local Richibucto detachment of the RCMP.

As it now stands, Harmon continues to reside at friend's house in Kent County. On June 4th, Harmon filed an application with federal court for a judicial review of the Canadian Border Services Agency's decision that he be removed from Canada, back to the United States. On June 8th, the Minister for Public Safety noted that they would respond to Harmon's application.

At this point, the case of John Harmon takes on a certain international significance. Harmon claims descent from the Lenni Lenape American Indian tribe. While not conferred with federal recognition status in the United States, the state of New Jersey does recognize the Lenni Lenape, and does recognize John Wayne Harmon as Lenni Lenape.

Harmon's legal representative in the matter is Halifax-based immigration specialist Lee Cohen, who believes that his client's case has the potential to clarify the Canadian government's long-obscured position on 'The Treaty of Amity, Commerce, and Navigation', otherwise known as the 'Jay Treaty'. Signed in 1794 between the fledgling government of the United States of America and the British Crown, the 'Jay Treaty', among other resolutions, allows for the free and unemcumbered passage of “Indians” between the borders of the United States and what is now Canada.

“In the broadest sense, we're taking the view that the Canadian Border Services Agency (CBSA) must consider existing treaties and land agreements in this case,” notes Cohen. “John Harmon was issued a 'Section 44' by the CBSA, which is an exclusion order based on an overstay for a visitor. We want this thrown out, based on the argument that; a) my client is not a visitor; b) he does not need visitor status; c) his stay in Canada is therefor not an overstay, and; d) the CBSA failed to look at existing treaties when making this decision.”

In practice, the government of the United States recognizes the 'Jay Treaty' and has codified its obligations to the treaty in Section 289 of the federal Immigration and Nationality Act. As per Section 289, “Native Indians” born in Canada are allowed to “enter the United States for the purpose of employment, study, retirement, investing, and/or immigration.”

In the Maritimes, “Native Indians” born in Canada have put the 'Jay Treaty' into practice for years. Significant numbers of Mi'kmaq, in attempting to escape the cultural genocide imposed upon them, especially by the residential school system, migrated – some on a permanent basis – to the United States, in particular to Boston, Massacheussets. As well, for several generations, First Nations peoples in the Maritimes have engaged in migrant farm work, particularly in Maine, where blueberry raking, potato picking and other activities have supplemented yearly incomes.

Canada's stance on the 'Jay Treaty', however, has never been quite clear. There is no permanent statutory law in Canada that embeds the right of free passage to American-born “Indians”. Canadian legal opinions have suggested that the 'Jay Treaty' is in effect, and that the Canadian government cannot escape its obligations and responsibilities, especially as they pertain to free passage for “Native Indians”, by claiming it was not a signatory. In this lack of legal interpretation of the 'Jay Treaty', Cohen suggests that the Canadian government, in this instance, lags behind its American counterpart in its responsibility to its First Nations populations.

“The Jay Treaty provides rights that John Harmon is asserting,” says Cohen. “The Canadian federal government has historically had a difficult time acknowledging these rights. We believe that the current federal interpretation of the Jay Treaty may not be the correct one.”

Also of interest in this case is the number of Maritimes-based First Nations groups that have publicly come to the support of John Harmon, in one case going so far as to adopt the Lenni Lenape man into their own nation.

Letters of support for Harmon, which in turn challenge the often taken-for-granted notion that the Canadian government should have singular authority – or any authority at all - on matters of immigration to the territories it occupies, have come from a wide array of traditional governance bodies. These include the Wulustukyieg Traditional Council of Tobic, the 7th district Gespegawagi Mig'mag government and the Maliseet Nation Turtle Clan Mother under the Wabanaki Confederacy Flag.

For his part, Lee Cohen is interested in challenging the Canadian government over its obscured understanding of the 'Jay Treaty'. He believes that John Harmon's case may well be one that finds its way to the Supreme Court.

“I think this case is made of the right stuff and I think we have what it takes to bring it there,” says Cohen. “John was living a fairly benign life. He was living a gentle life. There was absolutely no reason for him to be targetted by Border Services.”

Miles Howe is the author of 'Debriefing Elsipogtog - The Anatomy of a Struggle'

You can follow Miles on twitter @MilesHowe


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Comments

So where does the previous

So where does the previous land owner come into this? How can you sell your property to someone and then sell it again to someone else, and how does te second transaction negate the first? I don't like how this story starts at all. Regardless of how his immigration case turns out, shouldn't Harmon be able to justify the situation, as in someone owes him 3 years of payments or a piece of new brunswick soil.

Just commenting

It seems to me that Terressa Peters is the one who should be arrested for fraud, basically she sold her property twice which has to be illegal, I would think.  Why would the police arrest the victim, (at least one of the victims)?  He hasn't done anything wrong.

If the rule of law means nothing and the police just arrest the person they don't like, then we have wound up a long way from where we were going as a society.

Lee Cohen

Nova Scotia is extremely lucky to have such a brilliant immigration lawyer and one so committed to social and legal justice and to helping those in need, often desperate need. Cohen has had a huge impact on so many people's lives through his work, taking cases no one else could or would touch, working long hours, often for little or pro bono, violating all the principles of neoliberalism, saving lives.   A real mensch.  

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