"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(known by the outdated term "Eskimo") can apply for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