Since 1794, Aboriginal Peoples have been guaranteed certain rights regarding trade and travel between the United States and Canada (then a territory of Great Britain). These rights are primarily recognized in Article III of the Jay Treaty, officially known as the Treaty of Amity, Commerce and Navigation of 1794, along with subsequent laws stemming from it. This guide provides an overview of these rights and related information.
Background on Aboriginal Border Crossing Rights
When Europeans arrived in North America, they encountered established nations with their own territories, governance, and legal systems. The newcomers engaged in political, military, and economic relationships with these nations, acknowledging their inherent rights.
The American Revolutionary War led to the creation of the United States and established a border between the U.S. and British North America. The Treaty of Paris in 1783 concluded the war but left several issues unresolved, including the precise location of the boundary.
In 1794, Great Britain and the U.S. entered into the Jay Treaty, named after Chief Justice John Jay, the American negotiator. This treaty focused on “friendship, commerce, and navigation.” Article III granted free border crossing rights to U.S. citizens, British subjects, and “the Indians dwelling on either side of the boundary line.” It also exempted Indians from paying duties or taxes on their “own proper goods” when crossing the border.
Following the War of 1812, the Treaty of Ghent in 1815 saw Britain and the U.S. pledge to restore the rights of Indian Nations to their pre-war status. However, legislative measures in Upper and Lower Canada aimed at implementing these rights were allowed to expire in the 1820s and haven’t been reinstated since. Despite this, an informal practice of allowing free border crossing for Aboriginal people and waiving custom duties for them continued for many years.
In the 1920s, prompted by the actions of the Indian Defense League and the legal case of Paul Diabo, a Kahnawake Mohawk, the U.S. amended its immigration laws. Since then, Canadian-born individuals with at least 50% Aboriginal blood have been able to enter, reside in, and work in the United States without facing immigration restrictions; they are also protected from deportation. However, the U.S. hasn’t fully honored its commitments regarding the duty-free transport of “proper goods.”
The legal landscape is evolving on the Canadian side. The Supreme Court of Canada ruled in 1956, in the case of Louis Francis, that the Jay Treaty and the Treaty of Ghent weren’t treaties with Indian Nations. It further determined that the Jay Treaty wasn’t part of Canadian law because it hadn’t been legislatively ratified. While Article IX of the Treaty of Ghent was a self-implementing peace treaty, it didn’t automatically come into effect because it only “promised” to restore Indian Nations’ rights. In fact, Article IX states that the Crown “engages…forthwith to restore the rights” of Indians to what they were before the War of 1812.
Canada’s new Constitution Act of 1982 acknowledged and affirmed treaty and aboriginal rights. Subsequently, the Watt case in British Columbia suggested that citizens of Aboriginal Nations bisected by the border could enter Canada as a matter of right. This case is awaiting a final ruling from the Canadian Supreme Court.
The Mitchell case aimed to establish the aboriginal right of the Mohawks of Akwesasne to transport goods across the border duty and tax-free for personal and community use, and for small-scale trade between First Nations. In May 2001, the Supreme Court of Canada rejected the aboriginal right to exemption from duties on trade goods but remained silent on goods for personal or collective use. Cases like the Vincent case have established that customs duties and taxes apply to large-scale trade with non-Aboriginal people.
Within the U.S., there have been initiatives to create a comprehensive Indian Border Act to address issues related to both the U.S./Canadian and U.S./Mexican borders. The INS (Immigration and Naturalization Service) is also developing guidelines to recognize the Nations and tribes along the southern border.
Crossing the U.S. Border: Key Information for Aboriginal People
If you were born in Canada and possess at least 50% Aboriginal blood, you are entitled to specific rights and benefits within the United States.
Upon demonstrating that you have at least 50% Aboriginal blood…
You are entitled to the following rights:
- Free passage across the U.S./Canadian border.
- The right to live and work in the U.S.
- Eligibility for public benefits, including Medicaid, Supplemental Security Income (SSI), Medicare, Unemployment Benefits, and other forms of Public Assistance, provided you meet the relevant agency guidelines.
- The ability to register as a “domestic student” rather than a “foreign student” at colleges and universities in the United States (with corresponding fee adjustments).
You are not required to:
- Undergo processing for an alien registration card (Green Card or Form I-551).
- Obtain a work permit.
- Register for military service.
The U.S. Government is prohibited from:
- Deporting you.
- Denying you entry.
- Withholding services.
Entering the U.S. to Live and/or Work: Required Documentation
If you are a Canadian-born individual with at least 50% Aboriginal blood, you possess the right to enter the U.S. to live or work. This right is protected by federal statute (8 U.S.C. §1359) and the federal court case Akins v. Saxbe, 380 F. Supp. 1210 (D.Me. 1974).
When crossing the border intending to live or work in the U.S., be prepared to prove that you have at least 50% Aboriginal blood. The documentation requested may vary between different U.S. Immigration & Naturalization Service (INS) ports of entry, or border crossings. Be prepared to present any or all of the following documents:
- A letter from your band office confirming that you have at least 50% Aboriginal blood (referred to as blood quantum). (See Appendix for band office contact information.)
- Your Certificate of Indian Status Card (the card featuring a red stripe along the top).
- Your long form birth certificate. (See Appendix for information on obtaining your long form birth certificate).
- Photo identification.
- If you are Haudenosaunee, your Red I.D. Card.
- If you are Inuit, an Inuit enrollment card from one of the regional Inuit lands claim agreements.
Example of a Certificate of Indian Status Card, important for border crossing.
The document most frequently requested by the INS at the border is the letter of quantum, which verifies that your blood quantum is at least 50% Aboriginal blood. If you cannot obtain this letter from your band office with the necessary information, refer to the Frequently Asked Questions section. It is advisable to bring as many documents as possible.
The INS officer at the border has the discretion to determine which documents you need to present. Requirements can vary between different crossing points and even among different officers at the same location. The officer’s level of experience in dealing with Aboriginal people also influences the processing time.
Appearance can play a role: research indicates that if you “look Indian,” the INS officer may require less documentation.
A Green Card (Alien Registration Card or Form I-551) is NOT required for Canadian-born Aboriginal people to live or work in the United States. This is your right.
Obtaining a Green Card is optional. It offers certain legal benefits. If you choose to apply for a Green Card, you will need all the above documents plus two photos (in a specific INS-determined format). You will also need to complete Form I-181, available from your local INS office. See Appendix for the INS phone number.
Form I-181
If you wish to live and/or work in the U.S., an INS agent will fill out Form I-181 at a U.S. Port of Entry, in accordance with U.S. law (8 C.F.R. §289.3). If the INS officer is unfamiliar with your rights, the following information may be helpful in filling out the form:
| FOR THE SECTION, “Under the following provision of law” |
|---|
check the box marked “Other law (Specify)”
write in the following text: “INA-SEC 289 (S-13)”
| FOR THE SECTION, “Class of admission (Insert Symbol)” |
|---|
write in the following: “S-13”
| FOR THE SECTION, “Remarks” |
|---|
write in the following: “Canadian-born American Indian admitted for permanent residence.”
Obtaining Employment in the U.S.
Under U.S. law, if you were born in Canada and have at least 50% Aboriginal blood, you are entitled to get a job, even without a green card. This right is most clearly stated in the U.S. federal court case Akins v. Saxbe, 380 F.Supp. 1210 (D.Me.1974). However, there are other steps you will need to take in order to work.
Before you apply for work:
You will first need to obtain a U.S. Social Security Card. To locate the nearest Social Security Administration office, call: (800) 772-1213. To obtain a Social Security Card, you will need to be able to prove the following things:
- AGE: A birth certificate is preferred. If unavailable, the Social Security Administration can accept other documents, such as a hospital record of your birth made before you were age 5, or a religious record made before you were three months old. A non-U.S. passport is also acceptable.
- IDENTITY: Acceptable documents are: a driver’s license, adoption record, employer ID card, passport, marriage or divorce record, military record, insurance policy, school ID card, and others.
- ALIEN STATUS: Acceptable documents are: a letter of quantum from your Band office and your long form birth certificate.Also acceptable are: a current document issued to you by the INS, such as Form I-551 (green card) or Form I-94.Note: a receipt showing that you have applied for one of these documents is not enough.
If the Social Security Administration is uncooperative about accepting your letter of quantum or any other piece of the above documentation to prove alien status, you can refer them to the following regulations from the Social Security Administration’s own handbook:
SI 00502.105 – “Exemption from Alien Provisions for Certain Non-citizen Indians”
RM 00203.430 – “Evidence for an SSN Card for an Alien Lawfully in the U.S. Without INS Documents”
When you apply for work:
You will have to show one of the following:
Your letter of quantum and one of the following:
- Social Security Card
- Canadian or U.S. driver’s license
- School ID card with photo
- U.S. military card
- U.S. Coast Guard Merchant Mariner card
-OR-
Your Social Security Card and one of the following:
- Canadian or U.S. driver’s license
- School ID card with photo
- U.S. military card
- U.S. Coast Guard Merchant Mariner card
-OR-
Your I-551 form (green card). (Again, as a Canadian-born Aboriginal you do NOT need a green card in order to live or work in the United States.)
If none of these documents are available to you, contact your local INS office for other possibilities.
If your employer is unaware of the law in this area, refer him or her to the chart in INS Form I-9 (“Employment Eligibility Verification”).
You may also have to fill out INS Form I-9, which will be provided by your employer. The reverse of this form lists “Native American Documentation” as one of the accepted forms of documentation establishing employability.
Government Benefits for Aboriginal People in the U.S.
If you were born in Canada and have at least 50% Aboriginal blood, and you are unable to work or if you lose your job, you may be entitled to one or more of the following government benefits: Medicaid, Supplemental Security Income (SSI), Food Stamps, Disability, Social Security and Medicare.
MEDICAID
What it is: It is a jointly funded, Federal-State health insurance program for low-income and needy people. It covers children, the aged, blind, and/or disabled and other people who are eligible to receive federally assisted income maintenance payments.
Eligibility: In some states you automatically qualify for Medicaid if you qualify for SSI benefits. Other states have their own eligibility rules.
Who to contact: Social Security Administration (800) 772-1213 or your local State Medicaid agency.
The right to this benefit is guaranteed by U.S. law 8 U.S.C. §1612(b)(3).
SUPPLEMENTAL SECURITY INCOME (SSI):
What it is: The Supplemental Security Income Program makes cash assistance payments to aged, blind and disabled people (including children under age 18) who have limited income and resources.
Eligibility: You must have little or no income or resources and you must be considered medically disabled (according to guidelines published by the Social Security Administration). Other restrictions apply.
Who to contact: Social Security Administration (800) 772-1213.
The right to this benefit is guaranteed by U.S. law 8 U.S.C. §1612(a)(2)(G).
FOOD STAMPS:
What they are: Food Stamps are benefits (in the form of coupons or electronic cards) which allow qualified individuals and families to buy food.
Eligibility: You must have little or no income or resources.
Who to contact: Your state’s food stamp administration agency.
The right to this benefit is guaranteed by U.S. law 8 U.S.C. §1612(a)(2)(G).
DISABILITY:
What it is: Social Security Disability Insurance (SSDI) provides benefits to disabled or blind individuals who are “insured” by workers’ contributions to the Social Security trust fund.
Eligibility: You must have worked and paid Social Security taxes for enough years (based on a sliding scale published by the Social Security Administration) and some of the taxes must have been paid in recent years; you (or your adult child or widow[er]) must be considered medically disabled (according to guidelines published by the Social Security Administration) and you must either not be working or be working but earning under a certain level.
Who to contact: Social Security Administration (800) 772-1213.
SOCIAL SECURITY:
What it is: Retirement insurance benefits.
Eligibility: You must have paid Social Security Taxes for enough years (though it may be possible to combine years worked in Canada in order to achieve full benefits). You must be at least 62 years of age.
Who to contact: Social Security Administration (800) 772-1213
MEDICARE:
What it is: Medicare is a Federal Health Insurance program which mainly covers people 65 or older, some disabled people and people with permanent kidney failure.
Eligibility: If you are receiving Social Security, you are automatically enrolled.
Who to contact: Social Security Administration (800) 772-1213, (800) MEDICARE.
You may also be eligible for other benefits, both State and Federal.
Federal benefits may include federal student loans, Section 8 housing and Veterans’ benefits.State benefits may include Public Assistance, Women/Infants/Children (“WIC”) and Temporary Assistance for Needy Families (TANF).For more information, contact the appropriate agency.
Frequently Asked Questions
DEPORTATION
If you are Canadian born and have at least 50% Aboriginal blood, you cannot be deported from the U.S. The relevant U.S. court case is Matter of Yellowquill, 16 I. & N. Dec. 576 (B.I.A. 1978).
CUSTOMS ISSUES
Even if you are Canadian born and have at least 50% Aboriginal blood, you are currently subject to U.S. customs duties. The Jay Treaty stated “nor shall Indians passing or repassing with their own proper goods and effects of whatever nature pay for the same any duty or import whatever.” In reference to the Canadian Supreme Court’s ruling in the Mitchell case, Assembly of First Nations Grand Chief, Mathew Coon Come said, “It seems that the court is willing to overrule or erase over 2000 years of Indigenous Iroquois Confederacy constitutional history, culture and trading practices on the basis of a few hundred years of recent political events.”
IF YOUR SPOUSE AND/OR CHILD IS NOT ABORIGINAL
If your spouse and/or child does not have at least 50% Aboriginal blood, you will have to apply to the INS to sponsor them to permanently move to the U.S. with you. Legislative changes in early 2001 have improved the ability of families to remain together while adjustment of status to Permanent Residents is pending. Contact the INS for more information. See Appendix for the telephone number.
IF YOU HAVE TROUBLE GETTING YOUR LETTER OF QUANTUM
You will have to find some other way to prove that you have at least 50% Aboriginal blood. Acceptable methods may vary at different border crossings. Some ways which have been used, but may or may not work, are:
- Showing your parents’ birth certificates, when such indicate that one or both of your parents are 100% Aboriginal, or that their blood quantum combined adds up to at least 100% (for example, one parent is at least 25% Aboriginal and the other at least 75%).
- Making a signed statement before a judge, where you legally swear you have at least 50% Aboriginal blood quantum.
- Obtaining a letter from the Department of Indian Affairs and Northern Development (DIAND) stating that your parents and all four grandparents are Status Indians. See Appendix for the telephone number.
INUIT AND MÉTIS
Section 35 of the Canada Constitution Act, 1982 states:
- The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
- In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
- For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
- Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
While the Canadian government may treat “Inuit” differently than “Indians,” U.S. government policy does not differentiate. Inuit people of at least 50% Aboriginal blood are entitled to all of the above U.S. rights, and are eligible for all of the above U.S. benefits, as long as they can prove their blood quantum. For further information, contact the Inuit Tapirisat of Canada: (613) 238-8181.
Métis people must also demonstrate that they have at least 50% Aboriginal blood to be entitled to the above U.S. rights and benefits. The U.S. government reviews the personal histories of Métis people to ensure sufficient Aboriginal ancestry. For further information, contact the Ontario Métis Aboriginal Association (705) 946-5900.
Adoption and Aboriginal Heritage
If you were adopted and know that one or both of your parents are Aboriginal but lack detailed information about your heritage, you can obtain identifying information. Procedures vary by province. If eligible, you can obtain Indian Status and determine which First Nation you may apply to for membership.
Registration may provide access to various benefits in Canada, such as use of reserve land, exemption from certain taxation, hunting/fishing/trapping rights, treaty benefits and band funds, financial assistance, and educational assistance.
However, to take advantage of benefits in the United States, you must have at least 50% Aboriginal blood.
To learn about your Aboriginal ancestry in Canada:
- You must be over 18 years of age.
- Contact the Department of Indian Affairs and Northern Development.
- Inform them that you have been adopted and that you believe you are of Aboriginal heritage.
- Submit an application for Indian status. The registrar will check your adoption file.
Legal Resources
| American Indian Law Alliance | Phone: (212) 477-9100 |
|---|---|
| 611 Broadway, Suite 632 New York, NY 10012 e-mail: [email protected] | |
| Aboriginal Legal Service of Toronto | Phone: (416) 408-4041 |
| 211 Yonge Street Toronto, ON M5B 1M4 e-mail: [email protected] | |
| Montana Legal Services | Phone: (406) 248-7113 |
| PO Box 3093 Billings, Montana 59103-3093 e-mail: [email protected] | |
| North Dakota Legal Services | Phone: (701) 627-4719 |
| PO Box 217 345 Main Street New Town, North Dakota 58763-0217 e-mail: [email protected] | |
| Pine Tree Legal Assistance | Phone:1-877-213-5630 |
| Native American Unit 115 Main Street, 2nd Floor Bangor, Maine 04401 | |
| Wisconsin Judicare, Indian Law Office | Phone: (715) 842-1681 |
| Contact: Howard Bichler 401 North Fifth Street, Suite 200 PO Box 6100 Wausau, Wisconsin 54402-6100 e-mail: [email protected]/ |
Appendix
To contact your First Nation, contact the:
Department of Indian Affairs and Northern Development
10 Wellington North Tower Ottawa, Ontario K1A 0H4
(819) 997-9885 or (416) 973-6234 in Toronto
To obtain a copy of your long form birth certificate, contact the Vital Statistics Office for your province.
Note: There is a fee of around $22.
United States Immigration and Naturalization Service (INS): Call for the INS Office in your area. (800) 375-5283. All INS forms are available online.
Social Security Administration: (800) 772-1213. You can apply for Social Security Insurance online.
Example of a US Social Security Card, needed for employment.
For a printed pamphlet containing this information contact:
American Indian Law Alliance
611 Broadway, Suite 632 New York, NY 10012
or
Aboriginal Legal Services of Toronto
415 Yonge Street, Suite 803 Toronto, ON M5B 2E7
