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 and took into account Métis border crossing rights. 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.
What documents do you need to provide proof of Aboriginal blood?
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; or
- An Inuit enrolment card from one of the Inuit regional land claim agreements.
Indigenous Services Canada (ISC) has been advised that US border officers will accept any version of the Secure Certificate of Indian Status and any version of the Certificate of Indian Status, if valid, to cross the Canada–US border at both land and marine ports of entry. Acceptance of those status cards is solely at the US government's decision.Border officials may ask for any of these documents. However, the letter of quantum is requested most often.To request a letter of First Nation membership, contact your First Nation office. To request a letter of ancestry from ISC, contact Public Enquiries.
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. 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; and
- Collect public benefits, such as medical and retirement, if they meet the criteria set by each agency.
The U.S. Government cannot:
- Deport you;
- Exclude you from entry;
- Deny you services;
- Impound or search sacred objects you have in your possession having religious significance to you as a Native American.
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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.Many people are calling on the government to change this. In 2016, Canada's federal government appointed a special adviser to looking into border-crossing issues faced by Indigenous people. There have been numerous incidences where First Nations People have been denied entry into Canada. However, as of July 2023 the Jay Treaty does not hold legal ground in Canada. Read about two Haida basketball players were detained after travelling from Alaska to Canada.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.
