THE JAY TREATY

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."

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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.