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Aboriginal rights and crossing the US Border

Aboriginal rights protect the ability of First Nations, Metis and Inuit people to cross the border. Close cultural and family connections exist between communities in Canada and the United States. In fact, in many areas the border crosses traditional Aboriginal territories. As a result, this impacts personal relationships and work.

Thus, the United States recognizes these realities. Consequently, Canadian-born Aboriginal citizens have the right to cross the US border freely. Here’s what you need to know about Aboriginal rights and travel.

Jay Treaty and Aboriginal rights

The Treaty of Amity, Commerce and Navigation of 1794, or Jay Treaty, acknowledged that aboriginal peoples had rights to unimpeded travel and trade. It guaranteed they would be able to cross the US border from Canada.

In effect, the Jay Treaty applies to Canadian-born people with at least 50 percent Aboriginal blood. This includes Metis and Inuit. They are free to enter, live, work and study in the United States. They can’t be denied entry or be deported. The right is guaranteed by federal statute and a federal court case.

The Jay Treaty also said that Aboriginal people wouldn’t be charged duty or taxes on their “own proper goods.” However, that part of the treaty isn’t applied at the border. You’ll still be subject to customs duties.

Documentation

You need to show documentation that proves you have at least 50 percent aboriginal blood, or blood quantum. Documents that are accepted as proof include:

  • A letter from your band office confirming blood quantum
  • Certificate of Indian Status card
  • Long form birth certificate
  • A Red ID card issued to Haudenosaunee members
  • An Inuit enrollment card from one of the Inuit regional land claim agreements.

Border officials may ask for any of these documents. However, the letter of quantum is requested most often.

Canadian Border

The Jay Treaty doesn’t have legal status in Canada. These rights are the subject of ongoing discussions in Parliament and with First Nation governments. Aboriginal people who are Canadian citizens or have Indian status in Canada have the right to enter the country freely. Others face the same requirements as other foreigners.

US border

There are a long list of minor offences that can lead to denied entry. These apply even if there was an acquittal or a pardon. Many Canadians need to apply for US Entry Waivers to enter the States.  This process can take many months. Do not try to enter the United States if you know that you need a waiver. The situation can escalate. Even if you pass the border, you could be deported. Travel companions may also be affected.

With the right to unimpeded travel, Canadian-born Aboriginal citizens are assured of entry. This also includes the right to:

  • Live in the United States
  • Work without a permit
  • Register at college or university as a domestic student.
  • Collect public benefits, such as medical and retirement, if they meet the criteria set by each agency.

If you are not sure if you need a waiver to enter Canada or the United States, we can help. Contact us for a free consultation at 1-866-972-7366.

6 responses to “Aboriginal rights and crossing the US Border

  1. I was just wondering if being metis will let me travel to the U.S even though I have a discharge. They stoped me once at the border and I found out the record wasn’t purged yet it is now though. I did not know Of the jay treaty act at the time either and have not tried to go back since.

    1. Hi Ryan, Thank you for your question. You need to be able to show that you have at least 50% Aboriginal blood, which means you need one of the pieces of documentation listed in the article. If you have been denied entry and you cannot prove that you fall under the Jay Treaty provisions, you will need a US Entry Waiver.

  2. As a metis traveler in the usa and canada do i have free access to federal parks . And am i limited to days spent in the usa

    1. Hi Rene,
      I have heard that national parks in the US allow Aboriginal people to enter for free to participate in traditional activities; however, I don’t know the requirements. You might want to send an email to the National Park Service. https://www.nps.gov/index.htm
      In Canada, access to national parks by Aboriginal people is more complicated because it tends to be negotiated with the local communities in the area.
      If you meet the blood quantum requirements and have the documentation, you can stay in the United States as long as you like, but this it not reciprocal. Canada does not recognize the Jay Treaty as binding, which means if you are not from Canada, you will probably need a passport and will not be allowed to overstay the six months without a visa.

  3. Should I show up at the border with my Metis Card as my only proof of Indian Status, can I still be asked for more? Metis, Treaty and Inuit are all considered aboriginal and each member need to go through quite a thorough in order to be recognized as such. Shouldn’t this be enough? The way I see it, as it is described, a parent who is 50% aboriginal could pass through with his/her card but the children who are also recognized and hold their cards would then not be recognized in the U.S as aboriginal even though their ancestry proves otherwise. That means that a parent could live there while the children couldn’t. Right?

    1. Hi Marty, Yes, you may need to prove the blood quantum to enter the United States. If the officials are not satisfied with the Metis card, they may ask for more. Other documentation could include a long form birth certificate or letters from tribes or Bands to which your ancestors belonged. Yes, you are correct that the status to enter under the Jay Treaty would not be passed down to children. They may be subjected to the same entry rules as other Canadians. If a parent wanted to live in the United States, they would have to obtain the necessary visas for their children if they did not have the 50% blood quantum.

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