September-October 2013

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Table of Contents Browse InfoNet Find a Member ? ! Contact a Mentor Shop Agora "Many members of sovereign tribal nations have long resisted carrying Canadian passports because they identify first and foremost as FN, Metis, or Inuit." Following the Revolutionary War (1775–1783), the new border split some Indian nations in two, with members suddenly finding themselves separated while still occupying their ancestral territory. In 1794, the U.S. government and the British enshrined Article III of the Jay Treaty, which states: "It is agreed that it shall at all times be free to his majesty's subjects, and the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land and inland navigation, into the respective territories and countries of the two parties, on the continent of America … ." Futhermore, INA §289 briefly codified the Jay Treaty: "Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race." The provision excludes spouses and children of Indians "unless such person possesses at least 50 per centum or more of such blood." 8 CFR §289.1. The bulk of applicable law in this area comes from administrative and judicial decisions. Under the treaty, aboriginal Canadians simply have to prove by way of a tribal letter that they have at least a 50 percent quantum of Indian blood. They do not need a visa, a job offer, or a U.S. spouse. In fact, aboriginal Canadians, including FN, Metis, and Inuit (known by the outdated term "Eskimo") can apply for a green card right at the border by declaring their intention, proving the blood quantum, and completing the Form I-485, Application to Register Permanent Residence or Adjust Status. "A Canadian-born American Indian cannot be denied PR status," according to information for First Nations posted on the website of the U.S. embassy in Ottawa. An estimated 1.2 million of Canada's 35 million inhabitants identify as aboriginal (FN, Metis, or Inuit), according to the 2006 census. Canada issues status cards to qualifying FN and other Indian people. Many members of sovereign tribal nations have long resisted carrying Canadian passports because they identify first and foremost as FN, Metis, or Inuit. Len Saunders, an attorney who advises FN clients at the busy Blaine, WA,-border crossings of Peace Arch and Pacific Highway, says, "It is inconsistent with the Jay Treaty" to require a passport or a secure ID card, adding that requiring anything more of FN travelers than a blood quantum letter is in violation. He says that many FN people continually have to educate CBP officers about the treaty, while others now carry Canadian passports to avoid post-WHTI border hassles. U.S. officials have indicated that they will exercise common sense and discretion in implementing the WHTI at the U.S. land and water ports of entry, "which includes a period of flexibility after June 1, 2009," the date the WHTI became effective. Now, with some FN people carrying Canada's new status card as of 2010 and some presenting Canadian passports, CBP continues to use discretion to allow entry to FN people using the noncompliant ID. Jordana A. Hart is a Canadian-born immigration attorney practicing with the law firm of David J. Hart, P.A. in Miami. The author's views do not necessarily represent the views of AILA nor do they constitute legal advice or representation. S EPTEMBER/ O CTOBER 2013 27

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