Border Crossing Rights Under the Jay Treaty (2023)

BORDER CROSSING RIGHTS
BETWEEN THE UNITED STATES AND CANADA
FOR ABORIGINAL PEOPLE

Since 1794, Aboriginal Peoples have been guaranteed the right to trade and travel between the United States and Canada, which was then a territory of Great Britain. This right is recognized in Article III of the Jay Treaty, also known as the Treaty of Amity, Commerce and Navigation of 1794 and subsequent laws that stem from the Jay Treaty.

A Publication of the
American Indian Law Alliance
New York City

Supported by a grant
from the New York City Community Initiative Program
of the Open Society Institute

With additional support from
the Heron Foundation
the Solidago Foundation
the Unitarian Universalist Veatch Program at Shelter Rock

Written and researched by
the staff and interns of the
American Indian Law Alliance
and
Aboriginal Legal Services of Toronto

We would like to thank the individuals and organizations on both sides of the border who have given us valuable input. Through collaboration, this handbook was made possible. The New York City community of Native Peoples is greatly enriched by the presence of many Aboriginal people from north of the US/Canadian border.

Table of Contents

This Handbook should not be considered a complete summary of the border crossing rights of Aboriginal Peoples. It is meant to be used as a reference only, and does not represent the totality of Jay Treaty issues and border crossing rights. If you have further questions, please contact an attorney. Go here to find a listing of Indian Legal Services programs within the US.

Background Information

When the Europeans landed in North America, they encountered nations with their own people, territories, governments, and laws. The newcomers entered into political, military and economic relations with those nations, recognizing their rights.

The American Revolutionary War led to the creation of the United States of America and a boundary between the United States territory and British North America. The war ended with the Treaty of Paris in 1783, but that treaty left a number of issues unresolved, including the location of the boundary.

In 1794, Britain and the United States entered into a new treaty, known as the Jay Treaty after Chief Justice John Jay, the American negotiator. It was a treaty of "friendship, commerce, and navigation." Article III of the Jay Treaty provided for free border crossing rights for United States citizens, British subjects, and "the Indians dwelling on either side of the boundary line." Indians were also not to pay duty or taxes on their "own proper goods" when crossing the border.

In the Treaty of Ghent in 1815 (after the war of 1812), Britain and the United States promised to restore the rights of the Indian Nations that had existed before the war. However, legislation implementing these rights in Upper and Lower Canada was allowed to lapse in the 1820's and has not been reenacted since. Instead, it was the informal practice of both Canada and the United States for many years to allow aboriginal people free border crossing, and not to collect custom duties from them.

In the 1920's, largely as a result of the actions of the Indian Defense League, and as a result of the court case of Paul Diabo, a Kahnawake Mohawk, the United States changed its immigration laws. Ever since, Canadian-born people with at least 50% Aboriginal blood can enter, live in, and work in the United States without immigration restrictions; they cannot be deported for any reason. However, the United States has never implemented its promises about the duty-free carriage of "proper goods."

On the Canadian side, the law is in a state of rapid change. In 1956, in the case of Louis Francis, the Supreme Court of Canada decided that the Jay Treaty and the Treaty of Ghent were not treaties with Indian Nations; that the Jay Treaty was not part of the law in Canada because it had not been ratified by legislation; and that Article IX of the Treaty of Ghent, while the treaty was a self-implementing peace treaty, did not come into effect automatically, because it only "promised" to restore the rights of Indian Nations. Article IX, in fact, says that the Crown "engages...forthwith to restore the rights" of Indians to what they were before the War of 1812.

In 1982, the new Constitution Act recognized and affirmed both treaty and aboriginal rights. Since then, the Watt case in British Columbia established the possibility of citizens of Aboriginal Nations bisected by the border to enter Canada as of right. This case awaits a final decision from the Canadian Supreme Court.

The Mitchell case fought to establish the aboriginal right of the Mohawks of Akwesasne to bring goods across the border -- duty and tax-free for personal and community purposes, and for small-scale trade between First Nations. In May 2001, the Supreme Court of Canada denied the aboriginal right to exemption from duties on trade goods, but was silent on goods meant for personal or collective use. Other cases, like the Vincent case, have established that customs duties and taxes apply to large-scale trade with non-aboriginal people.

Within the United States there has been some movement for a comprehensive Indian Border Act to address numerous issues regarding both the United States/Canadian border and the United States/Mexican border. INS guidelines are being developed to recognize the Nations and tribes of the southern border.

Quick Reference GuideIf you were born in Canada and have at least 50% Aboriginal blood, you may be entitled to certain rights and benefits in the United States.

Once you have proven that you have at least 50% Aboriginal blood...

You have the right to:

• Cross the U.S./Canadian border freely.
• Live and work in the U.S.
• Be eligible for public benefits, such as Medicaid, Supplemental Security Income (SSI), Medicare, Unemployment Benefits and other Public Assistance, provided you meet the appropriate agency guidelines.
• Register for college or university in the United States as a "domestic student" rather than as a "foreign student" (with the appropriate fee adjustment).

You do not have to:

• Be processed for an alien registration card (also known as a green card or Form I-551).
• Obtain a work permit.
• Register for the military.

The U.S. Government cannot:

• Deport you.
• Exclude you from entry.
• Deny you services.

What You Need to Cross the U.S. Border to Live and/or WorkIf you were born in Canada and have at least 50% Aboriginal blood, you have the right to enter the U.S. to live or work. This right is guaranteed by federal statute (8 U.S.C. §1359) and the federal court case Akins v. Saxbe, 380 F. Supp. 1210 (D.Me. 1974).

When you cross the border with intent to live or work in the U.S., you should be prepared to prove that you have at least 50% Aboriginal blood. Different U.S. Immigration & Naturalization Service (INS) ports of entry, or border crossings, may ask for different kinds of documentation. Some ask for more; some for less. At the border, you may be asked for any or all of the following documents:

• A letter from your band office stating that you have at least 50% Aboriginal blood (also referred to as blood quantum). For information on how to contact your band office, see Appendix.
• Your Certificate of Indian Status Card (the card with the red stripe along the top).
• Your long form birth certificate. For information on how to get your long form birth certificate, see Appendix.
• A photo ID.
• 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.

The document most frequently requested by the INS at the border seems to be the letter of quantum (indicating that your blood quantum is at least 50% Aboriginal blood). If you are unable to get a letter of quantum from your band office with the necessary information, please see the Frequently Asked Questions section. However, it may be helpful to bring as many of the documents as you can.

The INS officer at the border will make most of the decisions about which documents you may need to present. There can be differences at different crossing points and even among different officers at the same location. Also, the degree of the officer's previous experience in handling Aboriginal people will determine the amount of time it takes for you to be processed.

Appearance can make a difference: our research shows that if you "look Indian," the INS officer may require less documentation.

You do NOT need a green card, also known as an Alien Registration Card or Form I-551, in order to live or work in the United States. This is your right as a Canadian-born Aboriginal.

Whether you choose to get a green card is up to you. There are certain legal benefits available to you, if you choose to register for a green card. If you do decide to apply for a green card, you will need all of the above documents, plus two photos (in a specific format determined by the INS). You will need to fill out Form I-181, which can be supplied by 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., when you are at a U.S. Port of Entry, an INS agent will fill out a form called Form I-181. This is in accordance with U.S. law (8 C.F.R. §289.3). If the INS officer is not familiar with your rights, the following information may be helpful in filling out the form:

What You Need To Work In the U.S.Under U.S. law, if you were born in Canada and have at least 50% Aboriginal blood, you have the right to get a job, even without a green card. This right is most closely articulated in the U.S. federal court case of 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:

It will first be necessary for you to get 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: To establish age, a birth certificate is preferred. If this is 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.

What If You Are Unable to Work or Lose Your JobIf you were born in Canada and have at least 50% Aboriginal blood and if 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 name of the U.S. court case which establishes this right 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 at present 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

Unless your spouse and/or child also has at least 50% Aboriginal blood, in order for them to be able to permanently move to the U.S. with you, you will have to apply to the INS to sponsor them. This is no longer the slow process it used to be. Legislative changes in early 2001 have greatly 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 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. Different methods may be acceptable at different border crossings. Some ways which we've been told others have used, and which 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 telephone number.

INUIT AND MÉTIS

Section 35 of the Canada Constitution Act, 1982 states:

1. The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
2. In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
3. For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
4. 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.

Although the Canadian government treats "Inuit" differently than "Indians," our research shows that the U.S. government does not. Therefore, 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 are able to prove their blood quantum in one of the ways listed. For further information, contact the Inuit Tapirisat of Canada: (613) 238-8181.

Métis people must also show that they have at least 50% Aboriginal blood to be entitled to the above U.S. rights and benefits. The U.S. government reviews personal histories of Métis people to insure there is sufficient Aboriginal ancestry. For further information, contact the Ontario Métis Aboriginal Association (705) 946-5900.

What If You, As A Canadian Aboriginal, Were Adopted?It may be that you know that one or both of your parents are Aboriginal, but because you were adopted as a child, you know little else about your heritage. You can get some identifying information. The procedures vary from province to province. If you are eligible, it is possible for you to obtain your Indian Status and find out to which First Nation you may apply for membership.

This registration may entitle you to a variety of 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, among other things.

However, in order to take advantage of benefits in the United States, you must have at least 50% Aboriginal blood.

In order to learn about your Aboriginal ancestry in Canada you need to:

• 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

Appendix In order to get in touch with 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

In order 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.

For a printed pamphlet containing this information contact:

American Indian Law Alliance
611 Broadway, Suite 632
New York, NY 10012
aila@ailanyc.org

or

Aboriginal Legal Services of Toronto
415 Yonge Street, Suite 803
Toronto, ON M5B 2E7
alst@web.ca

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Summer 2003, Edited September 2016
PTLA #922A