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Native Americans Born in Canada: What are My Rights at the Border and in the U.S.? (The Jay Treaty)

Authored By: Northwest Justice Project - CLEAR Intake Line LSC Funded

The rights of American Indians to freely cross the border in order to live and work in both the United States and Canada is based on the Jay Treaty, an agreement signed by the U.S. and Great Britain in 1794. This resource describes Indian rights and other aspects of the treaty. #9204EN

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What is the Jay Treaty?

The right of American Indians to freely cross the border and live and work in both the U.S. and Canada comes from the Jay Treaty, an agreement the U.S. and Great Britain signed in 1794. Congress later affirmed these rights in section 289 of the 1952 Immigration and Nationality Act (INA).

The INA limited Jay Treaty rights to American Indians born in Canada with at least 50% Aboriginal (Indian) blood. If this describes you, you have the LEGAL RIGHT to:

  • cross the U.S. - Canadian border

  • live and work in the U.S.

  • register at a college or university in the U.S. as a "domestic student"  rather than as a "foreign student," and get financial aid as an "eligible non-citizen"

  • not be deported by the U.S. government

  • get federal and state public benefits you qualify for, such as Social Security Retirement, Medicaid (health insurance for low-income and disabled individuals), Medicare (health insurance mainly for those 65 and older), Supplemental Security Income (SSI), Washington Basic Food Program (food stamps), Temporary Assistance for Needy Family (cash assistance), and Social Security Disability Insurance. You must meet the other standard eligibility requirements to get these benefits.

You DO NOT have to:

  • get a work permit

  • register for the military

  • get a green card, also known as an Alien Registration Card or Form I-551 (you may apply for one if you wish)

You DO NOT have the legal right to:

  • vote. To vote, you must become a U.S. citizen. Voting before you are a citizen could jeopardize your eligibility for citizenship.

You MUST:

  • pay usual U.S. customs duties on things you bring into the U.S.

  • apply to the U.S. Citizenship and Immigration Services (USCIS) to sponsor your spouse and/or child for them to be able to permanently move to the U.S. with you, if they are not also at least 50% Aboriginal blood

  • get a U.S. Social Security card before applying for a job (to get the card, you must prove your age, identity, and immigration status)

What documents do I need to cross the border into the U.S.?

You used to be able to show your tribal enrollment card with a photo attached and your Indian and Northern Affairs Canada card (INAC card or status card). Now, Canadian citizens must present a passport, Enhanced Driver's License or "Secure" INAC card.

*These documents show both identity and Canadian citizenship. They are acceptable for entry into the U.S. by land and sea. Not all provinces currently issue these documents.

The Aboriginal Affairs and Northern Development Canada (AANDC) office is currently accepting applications for updated Secure Certificate of Indian Status in certain regions. Contact AANDC to apply. In the meantime, the U.S. Department of Homeland Security will continue to accept the old Indian Status Card for an unspecified transition period. This policy could change. Contact the U.S. Department of Homeland Security with questions about their current policy.

If you are a Native American U.S. citizen planning a trip to Canada, upon return you must present a passport, an enhanced driver's license, an enhanced Tribal Card if available, or a Native American Tribal Photo ID Card.

The requirements are slightly more relaxed for children. U.S. and Canadian citizen children under age 16 arriving by land or sea may present their birth certificate (a copy is fine), a Naturalization Certificate, or a Canadian Citizenship Card.

What other documents might I need in the U.S.?

To be able to work live and work in the U.S. under the Jay Treaty, you must prove you were born in Canada and have at least 50% Aboriginal blood. If you want to apply for a job and exercise other Jay Treaty rights, you need other documents besides those for crossing the border. Bring as many of these as possible:  

  1. a letter of blood quantum from your First Nation stating you have at least 50% aboriginal blood, OR a letter from an INAC office verifying your Indian ancestry. You need this letter to make sure you get all the benefits described above. To get this letter, call the Canadian Department of Indian Affairs and Northern Development at 1-800-567-9604 (TTY 1-866-553-0554).

  2. your long form birth certificate. Contact the Vital Statistics Office in the province where you were born if you do not already have a copy.

  3. your Certificate of Indian Status, also known as a Status Card. This by itself is NOT enough to prove you have at least 50% Aboriginal blood.

  4. a photo ID, such as a passport, tribal card, or driver's license. If you are going to apply for or renew a license or a tribal card, and do not have a passport, get an enhanced tribal card or enhanced driver's license (if available in your province).

I was adopted by a non-Indian family.  Do I still have these rights?

Yes, as long as you have the documentation described above. If you think you belong to a Canadian Tribe or Band, but need to establish your Indian status, contact Canada's Department of Indian Affairs and Northern Development.

Do I need different documents depending on whether I travel by land, sea, or air?

If you are traveling by air, you must have a passport. This requirement also applies to children. 8 U.S.C. 1182(a)(7)(B)(i).

I have lived in the United States for over forty years, since I was five years old.  Am I a U.S. citizen?

You may not be a citizen if you were born outside the U.S. You have citizenship only if you were born in the U.S., became a citizen through the naturalization process, or in some cases, if you were born outside of the United States to a parent who is a U.S. citizen.

If you were born outside the U.S. but one of your parents was a U.S. citizen, you may already be a citizen. It depends on several factors, including:

  • Your date of birth

  • Whether either of your parents was a citizen at the time of your birth

  • Whether they were married when you were born

  • The periods of time the U.S. citizen parent lived in the U.S. before your birth

Talk to an immigration lawyer about whether you acquired U.S. citizenship from your parent.

 

 

Some of this information is based on an excellent resource from the American Indian Law Alliance and Wabanaki Legal News, a publication of Pine Tree Legal Assistance:  http://www.ptla.org/wabanaki/jaytreaty.htm

 

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This publication provides general information concerning your rights and responsibilities. It is not intended as a substitute for specific legal advice. This information is current as of December 2016.

© 2016 Northwest Justice Project. 1-888-201-1014
(Permission for copying and distribution granted to the Alliance for Equal Justice and individuals for non-commercial use only.)

Last Review and Update: Dec 20, 2016
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