Canadian citizens, who are American Indians born in Canada, may not be deported.[71]  This statutory right constitutes a defense to a charge of illegal re-entry into the United States,[72] but only where the defendant establishes the birth and blood qualifications.[73]  The court may exclude defense evidence testimony of a cultural anthropologist and of the defendant as to the identity of the defendant where this evidence fails to state what percentage of Indian blood the noncitizen has.[74]

 

                The immunity of certain American Indians born in Canada from exclusion and deportation is derived from the Jay Treaty of 1794[75] with Great Britain and was reaffirmed in the Treaty of Ghent at the conclusion of the War of 1812.[76] The beneficiary must be 50% or more of the blood of the American Indian race.  Practically speaking, the U.S. government looks at tribal membership cards to make this determination.

 

[71] Matter of Yellowquill, 16 I. & N. Dec. 576 (BIA 1978), construing INA § 289, 8 U.S.C. § 1359 (nothing in Title II of the INA relating to immigration can restrict American Indians, who were born in Canada and have at least 50 percent American Indian blood, from entering or leaving the United States).  This statutory right constitutes a defense to a charge of illegal re-entry into the United States, in violation of INA § 276, 8 U.S.C. § 1326, but only where the defendant establishes the birth and blood qualifications. United States v. Curnew, 788 F.2d 1335 (8th Cir. 1986).

[72] INA § 276, 8 U.S.C. § 1326.

[73] United States v. Curnew, 788 F.2d 1335 (8th Cir. 1986).

[74] Ibid.

[75] The language of INA § 289, 8 U.S.C. § 1359 (based on the Jay Treaty) is as follows: “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.”

[76] See INA § 289, 8 U.S.C. § 1359; 8 C.F.R. § 289.

BIA

AMERICAN INDIANS
American Indians born in Canada should not be deportable under any ground of deportation, if they have the required blood quantum. See INA 289, 8 U.S.C. 1359. The right of free passage comes from the Jay Treaty of 1794 Art. 3, 8 Stat. 117, with Great Britain, and the Treaty of Ghent after the War of 1812 and still safeguards the right of Canadian Indians to pass the border. The treaty right has been recognized by statute and is in the INA. This means that an American Indian born in Canada cannot be barred from crossing and recrossing the border, including for criminal convictions. An earlier interpretation that they could be expelled for deportable acts was reversed. See, e.g., Matter of B., 3 I. & N. Dec. 1948 (BIA 1948); Matter of D, 3 I. & N. Dec. 300 (BIA 1948); Matter of Yellowquill, 16 I. & N. Dec. 576 (BIA 1978), following Arins v. Saxbe, 380 F. Supp. 1210 (D. Maine 1974). See also 8 C.F.R. 289.

CITIZENSHIP - AMERICAN INDIAN - NATIVE AMERICAN - JAY TREATY
A noncitizen American Indian, born in Canada, has an absolute right to cross the U.S.-Canada border by virtue of his status under INA 289, which states: "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"; see also Akins v. Saxbe, 380 F. Supp. 1210 (D. Maine 1974) (affirming the right of Canadian born American Indians to enter the United States without having to fulfill the immigration requirements imposed on other aliens); Matter of Yellowquill, 16 I.&N. Dec. 576 (BIA 1978) (terminating deportation proceedings because Respondent possessed at least 50 per centum blood of the American Indian race). The USCIS Adjudicators Field Manual states that eligibility is usually shown by "tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood." AFM Chapter 23.8. Thanks to Sheila Stuhlman.

Other

CRIMINAL DEFENSE - INVESTIGATION
J. Sands & C. Bales, American Indian Culture and Federal Crimes, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 523 (2d ed. 2007).

CITIZENSHIP - AMERICAN INDIAN - NATIVE AMERICAN - JAY TREATY
A noncitizen American Indian, born in Canada, has an absolute right to cross the U.S.-Canada border by virtue of his status under INA 289, which states: "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"; see also Akins v. Saxbe, 380 F. Supp. 1210 (D. Maine 1974) (affirming the right of Canadian born American Indians to enter the United States without having to fulfill the immigration requirements imposed on other aliens); Matter of Yellowquill, 16 I.&N. Dec. 576 (BIA 1978) (terminating deportation proceedings because Respondent possessed at least 50 per centum blood of the American Indian race). The USCIS Adjudicators Field Manual states that eligibility is usually shown by "tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood." AFM Chapter 23.8. Thanks to Sheila Stuhlman.

AMERICAN INDIANS
American Indians born in Canada who declare an intention to live or work in the United States must be granted the freedom to do so under the Jay Treaty. They must go through a registration process. The U.S. Embassy in Ottawa provides the following information: Subsection 289.3 of the Combined Federal Regulations (8 CFR PART 289) provides guidance requiring that any Canadian-born American Indian who declares an 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). (http://canada.usembassy.gov/visas/information-for-canadians/first-nations-and-native-americans.html). Immigration regulations require that the person prove 50% American Indian blood quantum to qualify for a green card. Not everyone who has a tribal card can show the requisite blood quantum. Filing an I-485 begins the process in which a Canadian-born American Indian is afforded lawful permanent residence. This process is not an application for status, but is the initial action required to convey the appropriate status authorized under the Jay Treaty. An excerpt from the Inspector's Field Manual on the process at the border states: 11.3 American Indians Born in Canada. An American Indian born in Canada, with 50% American Indian blood, cannot be denied admission to the United States. The applicant bears the burden of proof in establishing eligibility. Usually, this is accomplished by presenting identification such as a tribal certification that is based on reliable tribal records, birth certificates, and other documents establishing the requisite percentage of Indian blood. The Canadian Certificate of Indian Status (Form IA-1395) issued by the Canadian Department of Indian Affairs in Ottawa specifies the tribal affiliation but does not indicate percentage of Indian blood. Membership in an Indian tribe in Canada does not necessarily require Indian blood. Once the claim to 50% Indian blood has been established, the applicant can freely enter the U.S., regardless of the purpose or duration of the trip, even if technically excludable or previously deported. If such person is entering to reside permanently in the U.S., Form I-181, Memorandum of Creation of Record of Admission for Lawful Permanent Residence, must be executed. The words "Canadian-born American Indian admitted for permanent residence" must be endorsed on the I-181. Under the box marked "Other Law" indicate section 289 of INA. Complete Form I-89, Data Collection Card, including fingerprint , proper photograph, and other required data. The admission classification is S13. An "A" file may be created at the port-of-entry and forwarded to the district office for data entry into Central Index or the I-181 and I-89 may be forwarded directly to the Immigration Card Facility for creation of the file and card production. Issue a temporary I-551 using Form I-94 See USCIS's instructions from the AFM. http://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-10065.html#0-0-0-439 A Canadian-born American Indian cannot be denied LPR status, but is required to complete the I-485 in order to receive any benefits under U.S. federal law. 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. Thanks to Mark R. Barr.