The Jay Treaty, signed in 1794 between Great Britain and the United States, provides that American Indians may travel freely across the international boundary. Under the treaty and corresponding legislation, Native Indians born in Canada can freely enter the United States for employment, study, retirement, investing, and immigration.
Who qualifies as a Canadian-born Native American?
To qualify for these privileges, eligible persons must provide evidence of their American Indian background at the port of entry. The documentation must be sufficient to show the bearer is at least 50% of the American Indian race. Typically, such evidence includes an identification card from the Ministry of Indian and Northern Affairs or a written statement from an official of the tribe from which you or your ancestors originate, substantiated by documentary evidence like tribe records and a civil long-form birth certificate bearing the names of both parents. Such a statement would be on the tribe’s official letterhead and should explicitly state what percentage of American Indian blood you or your parents possess based on official records. You should also provide photographic identification, such as a driver’s license or passport, and a Western Hemisphere Travel Initiative (WHTI)-compliant travel document. Notably, WHTI makes special provisions for First Nation travelers.
Understanding the Detailed Rights of Canadian-born Native Americans in the U.S.
Following the path laid down by the Jay Treaty, according to federal statute (8 U.S.C. §1359) and the federal court case Akins v. Saxbe, 380 F. Supp. 1210 (D.Me. 1974), Native Americans born in Canada with at least 50% Aboriginal blood possess the right to enter the U.S. for living or working purposes.
Understanding the Rights of Canadian-born Native Americans in the U.S.
According to federal statute (8 U.S.C. §1359) and the federal court case Akins v. Saxbe, 380 F. Supp. 1210 (D.Me. 1974), Native Americans born in Canada with at least 50% Aboriginal blood possess the right to enter the U.S. for living or working purposes.
Essential Documents for Crossing the U.S. Border:
When crossing the border with the intent to reside or work in the U.S., it is imperative to be prepared with proof of your Aboriginal blood quantum. Depending on the U.S. Immigration & Naturalization Service (INS) port of entry or border crossing, the required documentation might vary. These documents can include:
- A letter from your band office confirming 50% or more Aboriginal blood.
- Certificate of Indian Status Card (with a red stripe).
- Long-form birth certificate.
- Valid photo ID.
- Red I.D. Card (for Haudenosaunee).
- Inuit enrollment card (for Inuits).
The letter of quantum is the most frequently requested document by U.S. Immigration. While not all documents are mandatory, carrying as many as possible is advisable for a smoother process. The final decision on documentation rests with the immigration officer, and the requirement might vary based on the crossing point, the specific officer, and their experience with Native Americans.
Residing in the U.S
Qualifying Canadian-born Native Americans do not require a green card (Alien Registration Card or Form I-551) to live in the U.S. However, if one chooses to apply for a green card, the documents above and two specific-format photos will be needed. Form I-181 should be provided upon request by US Customs and Border Protection.
Working in the U.S. for Canadian-born Native Americans:
Under U.S. law, and as outlined in Akins v. Saxbe, 380 F.Supp. 1210 (D.Me.1974), Canadian-born Native Americans with 50% Aboriginal blood have the right to employment in the U.S. even without possessing a green card. However, before seeking employment, you will need the following:
- U.S. Social Security Card: This card is crucial for employment, and to obtain it, one must prove AGE, IDENTITY, and ALIEN STATUS using various acceptable documents.
- Employment Application: When applying for a job, one might need to show:
- Letter of quantum and Social Security Card, OR
- I-551 form (green card).
Two Pathways: Work vs. Permanent Residence
As a Native American born in Canada, you essentially have two options for entry into the United States:
- Work in the U.S. without a green card
- Seek entry to become a Lawful Permanent Resident (LPR)
Entry for Purposes of Becoming a Lawful Permanent Resident
- Obtain an Appointment with USCIS: Use the USCIS appointment scheduler to schedule an appointment with the nearest USCIS office. When making the appointment, you must select “Applicant or Petitioner,” then “Other,” and in the drop-down, select “American Indians Born in Canada (Section 289). You will then choose a time that is convenient for you and input personal identifying information.
- Declare Intent to CBP: You must explicitly state to Customs and Border Protection (CBP) that you intend to reside permanently in the U.S.
- Complete Form I-181: CBP should have you complete Form I-181, which records your admission for LPR status.
- Temporary I-551 Stamp: The United States Citizenship and Immigration Services (USCIS) will then provide a temporary I-551 stamp in your passport as proof of your LPR status.
- Obtain a Social Security Number (SSN): You can obtain an SSN from the Social Security Office with the temporary I-551 stamp.
Entry for Purposes of Work Only
- Proof of Status to CBP: Present your evidence of American Indian background to CBP, and they should admit you as a Native American Born in Canada.
- Social Security Number: After entry, go to a Social Security Office to obtain an SSN.
- Documentation Required: You will need one of the following:
- Form I-551
- Evidence of birth in Canada, AND
- Documentation from your tribe indicating your percentage of American Indian blood (tribe letter, card, or other tribal record)
Note: CBP will not accept a Certificate of Indian Status card (“Band” card) issued by the Canadian Department of Indian Affairs or any other document not directly issued by your tribe.
Conclusion
In summary, the Jay Treaty of 1794 provides a legal pathway for Canadian-born Native Americans to enter the United States for various purposes, including employment and residence. Eligible individuals must meet specific criteria, primarily proving at least 50% American Indian ancestry through official documentation. Two main U.S. entry options are working without a green card or applying for Lawful Permanent Resident status. Each comes with its own set of required procedures and documentation. While this blog serves as a comprehensive guide, it’s essential to consult an experienced immigration attorney for personalized advice tailored to individual circumstances.
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Citations
- The Jay Treaty – First Nations and Native Americans
- 8 FAM Native American Travel Documents
- Akins v. Saxbe, 380 F. Supp. 1210 (D. Me. 1974)
- USCIS Appointment Scheduler
- American Indians Born in Canada
- Exemption from Alien Provisions for Certain Noncitizen Indians
- Western Hemisphere Travel Initiative (WHTI)
- Green Card for an American Indian Born in Canada
- I-9, Employment Eligibility Verification
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