Exercise of Jay Treaty rights is essential for preserving ties between aboriginal peoples whose
communities straddle the U.S./Canada Border.
In 1794, the United States and Great Britain negotiated the Jay Treaty, established in part to
mitigate the effects of the recently established boundary line between Canada and the United
States on the indigenous peoples who suddenly found their lands bisected. The rights and
benefits originally set out by the Jay Treaty—now reflected in § 289 Immigration and
Nationality Act—bestow upon Canadians with a 50% native bloodline privileges unparalleled by
all but United States citizens to enter and remain in the U.S., virtually unrestricted by U.S.
immigration laws. These qualifying Canadians are defined in statute as “American Indians born
in Canada.”
I have recently co-authored what we believe to be the definitive article on Jay Treaty viability.
Our article explores the legal history of the Jay Treaty including the scope of the statutory term
“American Indian born in Canada,” expounding on the expressly racial—as opposed to cultural
or political—nature of the status, with a 50% native bloodline and birth in Canada being the
essential elements.
The Canadian constitution recognizes three separate cultural groups as aboriginal peoples:
Indian, Inuit, and Métis. Because the bloodline requirement of § 289 is broader than Indian tribal
membership within Canada, the status reaches many indigenous peoples who are distinctly not
Indian in any cultural or political sense, the Inuit being one such group. Our article evaluates the
applicability of Jay Treaty rights to the Inuit and other aboriginal populations of the
Alaska/Canada border, such as the Gwich’in.
Our article explores the practical effects of holding American Indian born in Canada status,
including exemption from most U.S. immigration restrictions, reciprocity (or lack thereof) by
Canada, and implications for traditional forms of cross-border commerce.
In outlining the procedure for documenting status as an American Indian born in Canada, and the
specific rights and benefits accompany the status, our article suggests that inconsistent and
inaccurate information disseminated by government agencies complicates an already sensitive
and misunderstood issue.
In the wake of post-9/11 security enhancements, it has become increasingly difficult for
American Indians born in Canada to exercise their Jay Treaty rights to the extent they are
entitled. Our article suggests responses to this trend and emphasizes the importance of
harmonizing the often-competing interests of national security, cross-border commerce, and the
preservation of indigenous cultures to reflect the clear intent of the Jay Treaty. We submit that
inclusion of aboriginal border crossing rights in the ongoing Beyond the Border process is an
integral first step to ensuring American Indians born in Canada the full scope of Jay Treaty
rights.