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First Nations and Native Americans
 

The Jay Treaty

The Jay Treaty, signed in 1794 between Great Britain and the United States, provided that American Indians could travel freely across the international boundary. The United States has codified this obligation in the provisions of Section 289 of the Immigration and Nationality Act (INA) as amended. Native Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study, retirement, investing, and/or immigration.

Qualifying as an American Indian born in Canada

In order to qualify under Section 289 of the INA, eligible persons must provide evidence of their American Indian background to the U.S. Department of Homeland Security Customs and Border Protection (DHS/CBP) officer at the intended Port of Entry. The documentation must be sufficient to show the bearer has at least fifty percent of American Indian race. Such a person may then be admitted without a visa.

Generally such evidence would include either 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 (tribe records and civil long form birth certificate bearing names of parents). Such a statement would be on the tribe's official letterhead and should explicitly state what percentage American Indian blood you or your parents possess, based on official documents/records. You should also provide photograph identification, such as a driver's license or passport.

The INA does not distinguish between "treaty" and "non-treaty" or "status" and "non-status" Indians as determined by Canadian law. The only relevant factor is whether the individual has at least 50% American Indian blood. Similarly, letters or identification cards from Metis associations generally cannot be accepted, as the Metis are not an Indian Tribe. If such identification helps to establish that an individual is at least 50% American Indian, however, it can also be included with other conclusive evidence.

Documentation Requirements

The Western Hemisphere Travel Initiative (WHTI) is the implementation plan for Section 7209 of the Intelligence Reform and Terrorist Protection Act of 2004. It requires generally that all travelers into the United States must be documented with a passport or other WHTI designated document. The first phase began in January, 2007 and affected those entering by air.

Beginning 31 January 2008, verbal declarations of citizenship (or Indian status) alone were no longer acceptable as proof of citizenship (or status) at any U.S. land-border and seaport Port of Entry. The Indian Affairs Canada card (INAC) and Tribal Enrollment cards, with an affixed photo, as well as any duly-issued attestation to 51% Indian blood (accompanied by a government-issued photo ID such as a driver's license or Provincial Health Card,) will be accepted and will serve as an identity document for all Native American Indians. The U.S. Department of Homeland Security (DHS) has been working, and continues to work, with the various tribal organizations in both the U.S. and Canada to develop an identification that will be WHTI compliant.

The final phase, affecting those entering by land or sea, went into effect as of 1 June 2009. Both DHS and the Department of State are aware of the concerns of American Indians regarding changes resulting from implementation of the WHTI.

For more information on the WHTI and First Nations People, please click here. The Canadian Government offers additional information here.

Applying for U.S. Permanent Resident Status (Green Card)

Subsection 289.3 of the Combined Federal Regulations (8 CFR PART 289) provides guidance requiring that any Canadian-born American Indian who declares intention to move to the U.S. and reside or work, that upon initial entry at a land-border Port of Entry, they must declare the intention to live and/or work in the U.S., provide CBP with documentation proving American Indian status, and complete an Application to Register Permanent Residence or Adjust Status (Form I-485).

The I-485 begins the process in which a Canadian-born American Indian is afforded PR standing and issued an I-551, Permanent Resident card (also called a "green card"). This process is NOT an application for status, but simply the initial action required in order to convey -- within the law -- the appropriate status as authorized under the Jay Treaty. A Canadian-born American Indian cannot be denied PR status, but is required to complete the I-485 in order to receive any benefits under U.S. federal law.

Persons granted permanent resident alien status will be issued a resident I-551 (green card) by DHS. Recipients are entitled to all rights and privileges accorded legal immigrants to the United States, including if they desire, eventual naturalization as American citizens and the right to sponsor immediate family members into the United States. Resident aliens are entitled to file on behalf of a spouse and unmarried children if they are not also eligible to be admitted under Section 289 of the INA.