American Indians Born in Canada – the Right of Free Access
Canadian Indians, Inuit, Metis and metis
An Exploration of the Unparalleled Rights Enjoyed by American Indians Born in Canada to Freely Access the United States
Certain American Indians born in Canada (ABCs) enjoy access to the United States unrestricted by the Immigration and Nationality Act (INA), a right stemming from the Jay Treaty (1794). An examination of this right, reflected by codification as § 289 of the INA, reveals qualifying ABCs are entitled to privileges unparalleled by all but United States citizens to enter and remain in the U.S. “for the purpose of employment, study, retirement, investing, and/or immigration” or any other reason.
Part I of this article outlines the legal roots of Jay Treaty rights, their development over time, and different theories regarding the basis for these rights as they exist today. Part II explores the statutory definition of “American Indians born in Canada” and relevant regulations, and evaluates the applicability of Jay Treaty rights to the aboriginal populations of Canada. Part III analyzes the extension of similar rights to the Texas Band of Kickapoo Indians, and suggests an extension of similar benefits to other indigenous borderlands peoples is past due. Part IV explores the practical effects of holding ABC status, including exemption from most U.S. immigration restrictions, reciprocity (or lack thereof) by Canada, and implications for traditional forms of cross-border commerce. Part V includes an overview of the procedures for documenting legal status as an ABC, then explores the erosion of Jay Treaty rights due to the Western Hemisphere Travel Initiative (WHTI) and other post-9/11 security enhancements, and suggests responses to this trend. In conclusion, Part VI submits that inclusion of aboriginal border crossing rights in the ongoing Beyond the Border process is an integral first step to ensuring ABCs the full scope of Jay Treaty rights.