The Border (Legal Information for Indigenous People: National Edition)

Crossing The Border

"What is the issue? The Canada-United States border affects First Nations’ daily movements, traditional practices, economic opportunities, and their family and cultural ties with Native Americans from the United States. In fact, a number of Nations such as the Ojibway, Blackfoot, and Mohawk have been split by the border."

- Assembly of First Nations

A number of laws set out the rules for who can cross the US/Canada border, but the law most relevant to Indigenous people and their rights to cross is the Jay Treaty.

Assembly of First Nations Fact Sheet: https://afn.ca/wp-content/uploads/2020/01/07-19-02-06-AFN-Fact-Sheet-Registration-and-the-Canada-US-Border-final-revised.pdf

Jay Treaty

What is the "Jay Treaty" and what does it mean?

The Jay Treaty is an agreement signed by the U.S. and Great Britain in 1794 that affirms the right of those with 50% blood of the "American-Indian race" to cross the Canadian-U.S. border without restriction.

The Jay Treaty recognizes the pre-existing right of Indigenous peoples to move freely across their traditional lands, which were separated by the newly created border.

The U.S. recognizes the Jay Treaty. This means that any Canadian-born Indigenous person that can prove 50% blood quantum can cross the border freely, and live and work in the U.S. without immigration restrictions.

It is important to note that the U.S. doesn’t treat Inuit or Métis differently. As long as an individual can show proof that they are 50% Indigenous, they can also make use of these rights.

Canada does not recognize the Jay Treaty. This means that American-Indians crossing into Canada will be treated like all other non-Indigenous American travelers.

Note: You can request a Jay Treaty pamphlet from U.S. Border officers to get up-to-date and detailed information on your Jay Treaty rights.

What do I do if the person working at customs does not know about my right to enter the U.S.? Tell the person that as a First Nation member, you have the right to enter the U.S. The legal source for this right is Section 289 of the Immigration and Naturalization Act (8 U.S.C. 1359).

Necessary Documents

To travel to the U.S. under the Jay Treaty, anyone with 50% Aboriginal blood can cross the border without restriction. However, U.S. Officials may ask for documentation.

Here are the most requested documents:

• Declaration of Blood Quantum, such as a letter issued by either your First Nation or Indigenous Services Canada declaring that you have at least 50% Aboriginal Blood (this is the most requested and most effective document).
• Valid Status Card (the U.S. often accepts the Secure Certificate of Indian Status or the Certificate of Indian Status, but note: having a Status card does not guarantee border crossing).
• Long-form birth certificate.
• Inuit Enrolment card from one of the regional Inuit land claim agreements.
• Haudenosaunee ID card.
• Metis Citizenship card.

You will also need some sort of Photographic identification such as a Status card, driver’s license, or passport. If you travel by Air between the U.S. and Canada, a valid Passport is required. The Secure Certificate of Indian Status and the Certificate of Indian Status are not official travel documents for air travel.

If you have trouble obtaining a letter of blood quantum, you may be able to use one of the following:

• A copy of your parents' birth certificates proving they have a combined 100% Blood Quantum (BQ).
• A signed declaration made before a judge affirming 50% BQ.
• A letter from Indigenous Services Canada stating that your parents and all four grandparents have Status.

If you are transporting EAGLE ITEMS, you must:

• Have Indian Status.
• Declare your goods.
• Complete USFWS Form 3-177 upon arrival.

More Information on Border Crossing: https://www.uscis.gov/greencard/american-indian-born-in-canada

While in the U.S.

If you want to work, live, or study in the U.S., Indigenous people with at least 50% blood quantum have the right to stay, work, live, or study.

Once you've been given entry to the U.S.:

• You don’t need to obtain a work permit or register for an alien registration card.
• You should have access to public benefits.
• You can register in a college or university as a domestic student.

To work in the U.S. or collect certain benefits, you will need to get a Social Security Number, which you can apply for at a Social Security Office in the U.S. This is free.

To find a Social Security Office, call 1-800-772-1213 or visit https://secure.ssa.gov/ICON/main.jsp#officeResults

You may also need to give your employer a letter from your Nation on letterhead, or an equivalent document, stating that you have 50% blood quantum.

Be aware that if you have a criminal record, you may be considered inadmissible to the U.S. and may not be allowed to cross the U.S.–Canada border unless you obtain a U.S. Entry Waiver.

Canadian "Pardons" or Record Suspensions are not recognized by the U.S. Border guards but may help when applying for a U.S. Entry Waiver. Not all crimes make you inadmissible, so it is advisable to seek legal advice.

To apply for a U.S. Entry Waiver, you will need to file U.S. Customs and Border Protection Form I-192. You can find the form at:

Application for Advance Permission to Enter the U.S.: https://www.cbp.gov/travel/international-visitors/admission-forms/form-i-92-application-advance-permission-enter-nonimmigrant

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