Chief Justice Marshall established the reserved rights doctrine back in 1832 in deciding Worcester v. Georgia, which was reaffirmed in the Court’s ruling on Taylor and later Winans. Relying upon the canons of construction which have proved to be some of the most powerful defenses to indigenous sovereignty within the U.S. legal system, the court has decided that unless expressly revoked or abrogated, sovereign rights of an indigenous people remain intact despite federal or even state authority. Winans is rather significant reaffirming these reserved rights not only within Indian Country, but on federally owned, and even privately owned, property as well. In this case the reserved rights were those to fish in “usual and accustomed grounds and stations,” even though those grounds and fishing stations were located within, or surrounded by privately owned property. The ability of sovereign aboriginal rights to transgress jurisdictional bounds is an incredible power, that is otherwise unthinkable in terms of European property law. It’s also interesting however to wonder what respect is afforded these rights across national borders.
The Jay Treaty and the Treaty of Ghent explicitly mention the reserved rights of Indians to pass freely across the U.S - Canadian border which bisects many indigenous communities. The U.S and Mexico have no such formal treaties or agreements which make the situation chaotic and murky. The freedom to pass across either border has however been greatly impaired in the past two decades due to border militarization. Indians have challenged this militarization as an attack on the sovereign authority of tribes to manage the traffic in and out of their borders, the authority of tribes to determine their own membership (regardless of national citizenship), and even as an infringement on the right of Indians to exercise religious practices that require migration across these borders1.
Given the explicit recognition of the reserved rights to free travel addressed in the Jay Treaty and the Treaty of Ghent, I wonder whether it would be possible to argue that national borders, constructed without indigenous consultation and silent on rights to travel, do not have the authority to restrict indigenous communities. Relying upon the reasoning of Winans which recognizes that reserved aboriginal rights preempt property divisions and national borders (those between tribal and state lands), one could conclude that a similar decision is reasonable with respect to the borders with Canada and Mexico, when they would restrict traditional practices: hunting and fishing, religious rights, community gatherings etc. Indigenous peoples have been crossing these relatively young borders for centuries, and the canons of construction are clear on the issue: the exercise of traditional indigenous rights is not impaired until made explicit by an act of Congress. So let them cross.
1 Luna-Firebaugh, Eileen M. (2002) The Border Crossed Us: Border Crossing Issues of the Indigenous Peoples of the Americas