As a result of the Treaty of Amity Commerce and Navigation of 1794, commonly referred to as the Jay Treaty, between the U.S. and Great Britain, the U.S.-Canadian border runs through the territories of several federally recognized Native American tribes. Because of this, treaties and federal law recognize the inherent right of all American Indians and Canadian Indians to pass freely into their own homelands. Article III of the Treaty states, "[i]t is agreed, that . . . the Indians dwelling on either side of the [U.S.-Canadian border], 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."
In 1952, Congress enacted Pub. L. 82-414, the Immigration and Nationality Act (INA), to govern immigration and citizenship in the United States. Section 289 of the INA (8 U.S.C. § 1359) provides that the right of American Indians born in Canada to enter the United States “shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.” Under the statute, American Indians residing in Canada who choose to exercise their Jay Treaty rights must not only provide proof of tribal enrollment but demonstrate that they possess 50 percent blood quantum when they wish to cross to work, live, or visit family living just across the border.
If you are having trouble crossing the U.S.-Canadian border using your tribal identification card pursuant to your Jay Treaty right or you have questions or wish to work with the Department of Homeland Security (DHS) and U.S. Customs and Border Protection (CBP) on issues impacting your members, please reach out to the contacts listed below.
Department of Homeland Security
Intergovernmental Public Liaison
United States Customs and Border Protection
Tribal and Community Affairs
Real IDs and Tribal Enhanced Identification Cards (ETCs) – Which form of identification do I need when crossing the United States-Canada and United States-Mexico border? Is my tribal identification card REAL ID compliant? How can a tribal government develop their own ETC? What requirements does an ETC need to have? What it will cost my tribe to participate? Join this Jay Treaty Border Alliance webinar to learn how you can help facilitate the crossing of your tribal members at the border using these identification cards.
JTBA Webinar Recording Below
ASKED TO PROVE YOUR BLOOD QUANTUM?ADVOCATE FOR THE ENACTMENT OF THE
TRIBAL BORDER CROSSING PARITY ACT
The manner in which the law is currently written is causing members of federally-recognized tribes to be denied entry back into the United States if they are unable to prove their blood quantum at the border. As federal law recognizes the right of Indian tribes to establish their own standards for citizenship, including methods that do not rely on blood quantum (See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)), 8 U.S.C. § 1359 is inconsistent with federal law because it relies on blood quantum as a measure of tribal affiliation, rather than proof of membership in a federally recognized tribe.
Members of federally recognized tribes need Congress to enact the Tribal Border Crossing Parity Act in order to amend 8 U.S.C. § 1359 to recognize proof of enrollment in a federally recognized tribe when crossing into their own territory rather than being continually objected to institutionalized discrimination stemming from the Termination Era when the federal government sought to end its government-to-government relationship through harmful legislation.