Laws and Faqs

 

CURRENT LAW, 1952 IMMIGRATION LAW

Today, the law stating your Jay Treaty Rights can be found in the U.S. Immigration Law which states:

In 1974 a Federal Court in Maine in the case Akins v. Saxbe, held that this law exempts such Indians from the restrictions imposed on aliens. The Court prohibited the Immigration Service from requiring alien registration from the individuals in that case. In the Yellowquil decision (1978) the Immigration and Naturalization Service found that Native Americans born in Canada cannot be deported from the U.S. for any reason. Current I.N.S. regulations now state that Native Americans born in Canada who possess 50% Indian blood quantum are deemed "lawfully admitted for permanent residence."

WHAT DOES THAT MEAN FOR YOU?

1. Do you need an Alien registration or "green card?" No. You are a Native American born within the boundaries of Canada. You qualify under the jurisdiction of the Jay Treaty provision and current U.S. law.


2. How do you show that you are a Native American born within the boundaries of Canada?


A. A "band card" issued by the Band Council of a Canadian Reserve, or by the Department of Indian Affairs in Ottawa.
B. Birth or Baptism records.
C. An affidavit from a tribal official or other person knowledgeable about the applicant’s or recipient’s family ancestry.
D. Identification from a recognized Native American provincial or territorial organization. Various U.S. federal and state regulations accept these verifications based upon enrollment in a Native American band, pursuant to the Canadian Indian Act; or proof of descent through birth records or affidavits.


3. What if you are a Native American woman without Canadian "Indian" status? You are still covered under law. Eligibility for the immigration exemption is not dependent upon Indian Act enrollment. Native American women who have lost their "status" under the Canadian Indian Act through their marriage to a non-status individual cannot be excluded from the U.S. or denied services. This applies to her children as well.

ELIGIBILITY FOR SERVICES

1. Employment:

You can work in the United States in private employment without alien registration, but you will need to obtain a social security number. The social security Administration will recognize the forms of verification listed in this brochure. Some public jobs are restricted to American citizens by statute or executive order. Federal employment and defense related positions tend to fall in this category. Jay Treaty rights DO NOT extend Canadian-born persons "dual citizenship." Citizenship rights and Native American rights come from different roots. The entitlement to U.S. citizenship derives from U.S. law.

2. Federal/State Benefits and Employment assistance:

A.F.D.C., food stamps, Supplemental Security Income (SSI) and general relief are available to citizens and legally admitted aliens. YOU can obtain these benefits if you meet the income guidelines and qualify under rights extended to Native Americans born within the boundaries of Canada but residing within the boundaries of the U.S. In some instances individual states have regulations which explicitly identify your eligibility, as in the case of Maine and Massachusetts. Employee benefits such as unemployment compensation and social security benefits are also available to you if you have worked in the U.S. You can show your legal status by the forms of verification listed in this brochure.

WHAT IF YOU ARE DENIED SERVICES?

If you or someone you know, has had problems with a government agency or private employer concerning alien registration, knowledge of the following history and legal references will aid in resolving the matter.

SOURCE OF THE RIGHT - HISTORICAL BACKGROUND

Before Europeans came to North America, Native American Nations and Confederacies conducted their affairs throughout what is now Canada and the U.S. respecting their own borders. After 1792 territorial borders were independent from the borders that the Europeans established for themselves. The U.S. and Great Britain entered into two key treaties which are binding today.

I. The Jay Treaty of 1794

The boundary line between the United States and Canada was fixed without regard to the boundaries of Native Nations or Confederacies. When the Peace of Paris ended toe American Revolution in 1783, affected Native American Nations were deeply disturbed that the boundary had been established throughout the middle of their territories. In response to the anxiety and confusion, in 1794 the U.S. and Great Britain adopted Article III of the Jay Treaty, which provided in part:


It is agreed that all shall at all times be free 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 to navigate all the lakes, rivers and waters thereof, freely, to carry on trade and commerce with each other.


At the Chenail Escarte, near present day Sarnia, Ontario, the British Deputy Superintendent of Indian Affairs explained this provision to the Chiefs of the Chippewa and Ottawa nations, on August 30, 1796, in terms of the rights of Native American nations:
The United States have at last fulfilled the Treaty of 1783 and the justice of the King towards all the World, would not suffer him to withhold (your) rights ... (The King) has taken the greatest care of the rights and independence of all the Indian Nations who by the Last Treaty with America, are to be perfectly free and unmolested in their Trade and hunting grounds and to pass and repass freely undisturbed to trade with whom they please.

II. The Treaty of Ghent

The Treaty of Ghent restored international recognition of all tribal rights, privileges and entitlements disturbed by the War of 1812. Article IX of this treaty stipulates:
The United States of America and Great Britain engage to put an end ... to hostilities with all the tribes or nations of Indians ... and forthwith to restore the such tribes or nations, respectively, all the possessions, rights and privileges which they may have enjoyed or been entitled to in 1811, previous to such hostilities ...

III. Other Treaties

The United States and Native American Nations entered into treaties which recognized that tribal authority and interests functioned independently of the border. For example, in 1795 Congress entered into a treaty with the Seven Nations of Lower Canada which established the St. Regis Reservation in New York. Col. John Allan, who served as the Federal Superintendent of Indian Affairs in New England, explained this policy in a letter to Samuel Adams:
Indians are not subject to, or amenable to any power; they have been always viewed as a distinct body, governed by their own customs and manners ... their mode of life leads them thro’ the Territories of different nations ... I presume that (within) every treaty and conference with the United States a large portion live upon lands, to which our Government has no claim, and I know this to have been the case with the French and English.

IV. Customs and Immigration

The Jay Treaty, the Treaty of Ghent and individual treaties with tribes dealt with the rights of "Indians" and "tribes" or nations of "Indians" as collective groups. The laws and regulations which have evolved form these treaties today deal with the rights of individuals.


The Jay Treaty provision relating to duties were incorporated in various tariff acts from 1795 to 1867. They have not been included in any subsequent legislation. As a result the U.S. Customs Service does not recognize the Jay Treaty customs provisions. There is no explanation for the deletion of Indian customs exemptions for the 1897 Tariff Act. This change has been under continuous protests by Native Americans for the last eighty years and is currently under review by a special committee established by the U.S. Customs Service.


The Customs Service is required by U.S. Law to recognize the right of Native Americans to bring religious objects across the U.S./Canadian border under the provisions of the American Indian Religious Freedom Act. P.L. 95-341, 42 U.S.C. 1996. The Jay Treaty provisions dealing with the rights of Native Americans to cross the border were not addressed on statute until 1828. Earlier immigration laws, passed between the late 1800’s and 1924 were intended to restrict the influx of certain groups of Europeans and Asians. These statutes did not relate to Native Americans. In 1924 Congress passed two acts: one entitling Native Americans born within the boundaries of the U.S. to American citizenship (a provision intended to exclude Japanese).


Soon thereafter, U.S. agents used these laws in an attempt to deport an individual member of the Mohawk Nation, who was born within the boundaries of Canada, from the U.S. The individual was working in the U.S. After the successful challenge of this deportation in a Federal Court, in McCandles v. United States ex rel Diabo, Congress enacted the Act of 1928. This Act substantiated the aboriginal rights of Native Americans to cross the U.S./Canada border. This law was restated in the 1952 immigration and Nationality Act.

 

UNITED STATES TREATIES

Article III, "Treaty of Amity, Commerce, and Navigation between the United States and Great Britain" (Jay Treaty). Signed at London, November 19, 1794; entered onto force October 28, 1795. Stat. 116; Treaty Series 105 (Dept. of State); 12 Bevans 13.

Explanatory Article to Article III of the Jay Treaty. Signed at Philadelphia, May 4, 1796; entered into force October 6, 1796. Stat. 180; Treaty Series 106 (Dept. of State); 12 Bevans 34.

Treaty of Peace and Amity between the United States and Great Britain (Treaty of Ghent). Signed at Ghent, December 24, 1814 entered into force February 17, 1815 8 Stat. 218; Treaty Series 109; 12 Bevans, exeg.
Source: Treaties in force (January 1, 1979), U.S. Department of State, pp. 25 and 205

U.S. IMMIGRATION AND NATIONALITY LAWS

American Indians born in the United StatesSection 301 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1401(b); (citizenship defined). American Indians born in CanadaSection 289 of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. 1359, derived from Act of April 2, 1928.


I.N.S. Regulations at 8 C.F.R. part 289 (1979).
See also 8 U.S.C. 1101 (a)(1) ("alien"); 1101(a)(15)("immigrant"); 1 (a)(17) ("immigrant laws"); 1101 (a)(22) ("national of the U.S.").

 

CASES

Akins v. Saxbe, 380 F. Supp, 1210 (D. Me. 1974)(Immigration provision).

In Re Yellowquil, interim Decision #2664 16 I & N Dec. 576 (B.I.A. August 1, 1978) Overruling matter of A____, I & N Dec. 600 (B.I.A. 1943) and the following Akins v. Saxbe, supra.

McCandles v. United States ex. Rel Diabo, 18 F. 2d 282 (E.D. Pa. 1927), Aff’d 25 F. 2d 71 (3rd Cir. 1926)

U.S. ex rel Goodwin v. Karnuth, 74 F. Supp. 680(W.D.N.Y. 1947) Immigration provision covers "non-status" Indian women.

Akins v. U.S., 551 F. 2d 1222 (1977)(customs provision).

Tom v. Sutton, CA Wash 1976 533 F. 2d 1101. Citizenship did not destroy existence or sovereignty of Indian tribe over the members.

REGULATIONS

Federal and state regulations which recognize the status of American Indians born in Canada include:

Native American program regulations which specifically recognize the status of Canadian-born Indians include:

This brochure was prepared by the Office of the Indian Task Force, Federal Regional Council of New England with the assistance of the Boston Indian Council, Inc. It was published by the Community Services Administration. The State Advisory Committee of the US Civil Rights Commission assisted in its distribution.

 

 

 

 

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