Monday, February 11, 2013

Policy Makers, Please provide a Beyond the Border "fix" for American Indians born in Canada

The Beyond the Border initiative has ignored Canada’s First Nations population and certain Métis peoples. At first glance the casual observer might fail to spot how Beyond the Border process could easily be tweaked to assist these peoples (called American Indians born in Canada in U.S. jurisprudence and for the duration of this blog entry). But first a bit of history to explain the nature of the benefit that American Indians born in Canada enjoy under U.S. immigration law. Then a brief description of the problem followed by an even briefer description of the obvious solution. 

Certain American Indians born in Canada enjoy access to the United States unrestricted by immigration considerations. An examination of this right reveals that qualifying American Indians born in Canada are entitled to privileges unparalleled by all but U.S. citizens to enter and remain in the U.S. for employment, or any other purpose. 

The right of free passage across what is now the U.S.-Canada border was the sovereign right of several Northern American Indian tribes long before white settlers set the boundary between the two countries. The international boundary was established by England and the United States in the Peace of Paris (1783) dividing the North American lands claimed by the two countries. This boundary also ran through the center of territory occupied by several Northern American Indian tribes. The peoples of these tribes not only resented a boundary passing through their lands, but also viewed the newly established border as an infringement of their sovereign rights.

Great Britain and the United States sought to relieve the tensions among the tribes arising from the new boundary. In 1794, they negotiated Article III of the Jay Treaty, a treaty of amity and alliance between the two countries.  Article III of the Treaty provides: 
It is agreed that it shall at all times be free to his majesty’s subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson Bay Company only excepted) . . .

The Jay Treaty did not create a new right for the continent’s native population. It recognized the Indians’ existing right to move freely across the International Boundary.  In 1796, an explanatory provision was added to the treaty providing that no further treaties should derogate from the rights guaranteed by Article III.  

Except for the period of the War of 1812, the United States continued to recognize the Indians’ right to pass across the border free from any immigration restraints until enactment of the Immigration and Nationality Act of 1924. Shortly thereafter, the Department of Labor, then the governing body over the Immigration and Naturalization Service, began deporting Canadian-born Indians who had not registered as aliens or obtained immigrant visas, based on its determination these Indians were inadmissible because of ineligibility for citizenship under provisions of the Immigration and Nationality Act of 1924.

In 1927, an American Indian born in Canada  who was arrested and ordered deported for entering without complying with U.S. immigration laws challenged the Department of Labor’s policy in Federal District Court, and subsequently on appeal in the Third Circuit in the McCandless case. In defense of its position, the Department of Labor argued that the War of 1812 had abrogated the Indians’ rights under the Jay Treaty. It relied on the general principle that war between nations ends all prior treaty rights, and those rights are only reborn if a new treaty provides them.

On appeal, the Court found for the Indians. It reasoned that treaties stipulating for permanent rights, professing to aim at perpetuity, do not end upon occurrence of war, but are merely suspended until the war ends and subsequently revived when peace returns. Because Article III of the Jay Treaty grants the right to freely cross the border in perpetuity, the right is permanent in character; thus, the War of 1812 did not abrogate the Jay Treaty. Further, in 1815, the U.S. and Great Britain entered into the Treaty of Ghent, which again recognized the Indians’ prerogative to move freely across the border, removing any doubt as to that right.  

In 1928, shortly after the McCandless decision, Congress codified the Indian privilege of free passage across the border at 8 U.S.C. § 226a, which remained in effect until 1952, when Congress enacted the Immigration and Nationality Act (INA), which states at § 289:

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, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.

Prior to the Act of 1952, there was no bloodline requirement, although the U.S. government was moving towards such a requirement. This was clarified in a Board of Immigration Appeals (BIA) Exclusion Proceeding in 1942.  Matter of S involved a white woman married to an Indian male who wished to be considered an Indian under the Canadian Indian Act of 1928, making her eligible under the Act to move freely across the U.S.-Canadian border. The Board considered whether an alien within the Act should be determined by blood, or alternatively, legal membership in an Indian tribe.  Ultimately, it reached the conclusion that the determination should be based on political rather than ethnological terms.  The Government contested this interpretation, stating only persons of American Indian blood should be beneficiaries of the act.  Its position is reflected in INA § 289.

Thus to meet the requirement of INA § 289, a Canadian-born Indian must establish possession of at least 50 per centum American Indian bloodline.  The statute creates a bloodline test involving determining the amount of American Indian blood possessed by a person. The test involves more than a showing the person possesses some unspecified amount of Indian blood and is considered by his community and himself as being an Indian.  

The phrase “American Indian born in Canada” is construed in a racial, not a political, context. Registration as an Indian with the Canadian government or with tribal authorities is not a prerequisite to benefits for U.S. immigration purposes.  A person registered as an Indian with the Canadian government or a Métis (or any other person) can qualify as an American Indian born in Canada for U.S. immigration purposes, as long as that person has a 50% or better Aboriginal bloodline.

The Problem…
To enter under the Jay Treaty, an American Indian born in Canada must prove 50% or better Aboriginal or First Nations bloodline each time he enters the U.S. As with other types of entry, US Customs and Border Protection Inspectors may have varying opinions what documents prove the bloodline. This can make the “guaranteed” entry to the U.S. for American Indians born in Canada time consuming and unpredictable. American Indians born in Canada can be issued a “green card” upon proof of bloodline, and many have opted for such document to take the uncertainty out of their entries to the U.S. However the IRS maintains that all “green card” holders have the obligation to file certain U.S. documents relating to foreign income and assets, and what was once seen as a card to be obtained to document Jay Treaty status can now bear potentially onerous financial and disclosure consequences for American Indians born in Canada who continue to reside in Canada.

The Solution…
US Customs and Border Protection must create a Jay Treaty Card. American Indians born in Canada who have had their bloodline adjudicated by CBP as being 50% native or better could be issued a Jay Treaty Card to save them the time and inconvenience of having to have such adjudication made every time they cross the border, and to save CBP the time of having to make repeated adjudications of the same technical issue for the same person. The card could bear the holders photo and otherwise contain security data similar to a NEXUS card. It would speed the crossings of those entitled to Jay Treaty Status and free up CBP inspectors for duties other than repeated bloodline adjudications.