Jay Treaty: U.S. Rights for Canadian-Born Native Americans

The Jay Treaty of 1794 and Section 289 of the U.S. Immigration and Nationality Act (INA) allow eligible Native Americans born in Canada to enter, live, and work in the United States without a visa or green card. These rights are based on the recognition of the pre-existing rights of Indigenous peoples to cross the U.S.-Canada border freely.

To qualify, individuals must meet specific ancestry requirements and provide sufficient documentation. This article provides detailed instructions for entry, employment, public benefits, family sponsorship, and permanent residency applications.

---

Table of Contents

1. What Is the Jay Treaty?

2. Legal Basis Under U.S. Law

3. Who Qualifies Under the Jay Treaty?

4. Required Documentation

5. Crossing the U.S. Border

6. Living in the U.S. Without a Green Card

7. How to Work in the U.S.

8. Getting a Social Security Number

9. Applying for a Green Card (Optional)

10. Family Sponsorship

11. Applying for Public Benefits

12. Special Considerations for Inuit and Métis

13. Troubleshooting: When Officials Don’t Recognize Jay Treaty Rights

14. Where to Get Documents

---

1. What Is the Jay Treaty?

The Jay Treaty was signed in 1794 between the United States and Great Britain. Among its provisions, it recognized that American Indians have the right to freely cross the U.S.-Canada border to access their historical territories and communities.

---

2. Legal Basis Under U.S. Law

Although the Jay Treaty is a historical document, its border provisions were affirmed by Congress in Section 289 of the Immigration and Nationality Act (INA) in 1952. The statute (8 U.S.C. §1359) provides that:

“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…”

The key legal case interpreting this right is Akins v. Saxbe, 380 F. Supp. 1210 (D. Me. 1974), which confirmed that Native Americans born in Canada with at least 50% Aboriginal blood may live and work in the U.S. without restriction.

---

3. Who Qualifies Under the Jay Treaty?

To be eligible for Jay Treaty benefits, you must:

• Have been born in Canada, and

• Possess at least 50% American Indian (Aboriginal) blood

The U.S. government requires documentation that demonstrates the blood quantum and tribal affiliation.

Important: Métis and Inuit individuals may qualify but must meet the same 50% requirement and provide additional evidence.

---

4. Required Documentation

You must present documentation proving both identity and blood quantum. Carry original documents and copies when interacting with U.S. border officials or agencies.

Core Required Documents:

• A letter from your band office or tribal council confirming that you possess at least 50% American Indian blood. This letter should:

  • Be on official letterhead

  • State the blood quantum

  • Reference how the percentage was determined (e.g., parental records, enrollment files)

• Long-form birth certificate (lists names of both parents)

• Photo ID, such as a passport or driver’s license

• Secure Certificate of Indian Status (SCIS) card (must have red stripe)

Additional Documents (as applicable):

• Red I.D. Card (for Haudenosaunee individuals)

• Inuit enrollment card (under a land claim agreement)

• Letters or records from Indigenous and Northern Affairs Canada (INAC)

Notes:

• Documentation must link you directly to a recognized tribe or First Nation.

• The U.S. does not accept Métis cards or association memberships as proof on their own.

---

5. Crossing the U.S. Border

Step-by-Step Process:

1. Approach a U.S. Port of Entry (land, sea, or air)

2. Tell the Customs and Border Protection (CBP) officer that you are entering under Section 289 of the INA as a Canadian-born American Indian

3. Present your documentation (tribal letter, birth certificate, ID)

4. Be prepared to complete Form I-181, which documents your admission for permanent residence (if applicable)

5. CBP may take your fingerprints and conduct a background check

6. If you’re not applying for a green card, state that you are entering under treaty rights without intent to immigrate

If applying for permanent residency (see Section 9), inform CBP of your intent to reside permanently.

---

6. Living in the U.S. Without a Green Card

Once admitted under the Jay Treaty, you may reside in the U.S. without applying for a green card. You are considered lawfully admitted for all practical purposes but must retain your documentation. You may be required to re-submit documents when:

• Re-entering the U.S.

• Applying for employment

• Registering for education or benefits

There is no formal renewal process, but you must maintain proof of your eligibility.

---

7. How to Work in the U.S.

Although no work permit or green card is required, you must apply for a Social Security Number (SSN) before starting employment.

Documents Typically Required by Employers:

To complete the I-9 employment verification form, present one of the following combinations:

Combination A:

• Tribal letter (proving 50% blood quantum)

• Social Security card

• Government-issued photo ID (e.g., driver’s license or passport)

Combination B (if you have a green card):

• Green card (Form I-551)

Employers may not be familiar with Jay Treaty rights. Be ready to explain your status and legal authorization to work under Section 289 of the INA.

---

8. Getting a Social Security Number

Visit a Social Security Administration (SSA) office to apply for an SSN.

Bring the Following:

• Long-form birth certificate

• Government-issued photo ID

• Tribal letter confirming blood quantum

• Any CBP documentation (e.g., I-181, I-551 stamp)

If SSA staff are unfamiliar with Jay Treaty status, refer them to these policies:

• S100502.105 – Exemption from alien requirements for certain Native persons

• RM00203.430 – Guidance on issuing SSNs to lawfully present noncitizen Indians without DHS documents

You can find your nearest SSA office at https://secure.ssa.gov/ICON/main.jsp

---

9. Applying for a Green Card (Optional)

You are not required to obtain a green card, but you may choose to become a Lawful Permanent Resident (LPR).

Steps to Apply:

1. Schedule an appointment with USCIS:

   • Select “Applicant or Petitioner” → “Other” → “American Indians Born in Canada (Section 289)”

2. At the U.S. border, inform CBP that you are seeking admission as a permanent resident

3. Complete Form I-181

4. Receive a temporary I-551 stamp in your passport

5. Visit a USCIS office to:

   • Provide fingerprints

   • Submit Form I-89

6. USCIS will mail your green card after processing

You will need two passport-style photos for the green card process.

---

10. Family Sponsorship

Your spouse and children under age 21 do not qualify under the Jay Treaty unless they also meet the 50% Aboriginal blood requirement.

To bring them to the U.S.:

• File Form I-130 (Petition for Alien Relative) with USCIS

• Wait for approval

• Once approved, they can apply for consular processing or adjustment of status

The I-130 can be filed before or after you enter the U.S.

---

11. Applying for Public Benefits

Once your eligibility is established, you may qualify for various federal and state programs.

Federal Programs:

• Supplemental Security Income (SSI): Must meet disability and income limits

• Social Security Disability Insurance (SSDI): Must have paid into Social Security

• Social Security Retirement Benefits: Requires 40 credits (typically 10 years of work)

• Medicare: Age 65+ or qualifying disability

• SNAP (Food Stamps): Based on household income

• Federal Student Loans (Title IV): For eligible postsecondary students

State Programs (varies by state):

• Medicaid: Five-year wait may apply unless exempt (e.g., pregnant women or children in some states)

• TANF: Temporary cash aid for families with dependent children

• WIC: Food aid for women, infants, and children

• State housing and rental voucher programs

Program eligibility also depends on residency, income, and disability status.

---

12. Special Considerations for Inuit and Métis

Inuit:

The U.S. does not distinguish between Inuit and other Aboriginal groups. If you meet the 50% requirement and provide documentation, you qualify under the Jay Treaty.

Métis:

Métis individuals must still prove that they meet the 50% Aboriginal blood requirement. Métis identification cards or memberships alone are not accepted. Additional documentation (family history, tribal connections, parental records) will be required.

---

13. Troubleshooting: When Officials Don’t Recognize Jay Treaty Rights

U.S. officials (border agents, SSA staff, employers) may be unfamiliar with Jay Treaty rights.

What to Say:

• Refer to Section 289 of the Immigration and Nationality Act (8 U.S.C. §1359)

• Mention the case Akins v. Saxbe, 380 F. Supp. 1210 (D. Me. 1974)

• Explain that you are lawfully present as a Canadian-born Native American with 50% Aboriginal blood

Request to speak to a supervisor if necessary.

---

14. Where to Get Documents

Tribal Letter:

• Contact your First Nation band office

Birth Certificate:

• Contact the Vital Statistics Office in your province of birth

Status Card:

• Secure Certificate of Indian Status: Contact INAC

General Inquiries:

• Indigenous and Northern Affairs Canada (INAC)
  Phone: 1-800-567-9604
  TTY: 1-866-553-0554

---

Conclusion

The Jay Treaty and U.S. immigration law provide powerful and unique rights to Native Americans born in Canada. With the right documentation, you can:

• Enter and live in the U.S. without a visa or green card

• Work legally and obtain a Social Security Number

• Access public benefits and educational programs

• Apply for permanent residency if you choose

Always carry your documents, understand your legal rights, and seek professional guidance when needed. For complex questions or case-specific issues, consult a qualified U.S. immigration attorney.

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

We Can Help!

You may have questions regarding Canadian-born Native Americans. We invite you to contact our team at Richards and Jurusik for detailed guidance and assistance. We aim to provide the most accurate and up-to-date information to make your immigration process smoother and less stressful. The immigration lawyers at Richards and Jurusik have decades of experience helping people to work and live in the United States. Read some of our hundreds of 5-star client reviews! Contact us today to assess your legal situation.

Contact Us