Ethnic subnations in North America
Native status in the United States and Canada
By William Wetherall
First posted 3 April 2006
Last updated 26 August 2009
United States
Certificate of Degree of Indian Blood, Indian Citizenship Act of 1924
Canada
Indian, Inuit and Metís peoples, Indian Act 1985, Definition and Registration of Indians
Freedom of passing
Border-crossing rights of American Indians past and present
Racioethnic subnationality
In international law, states are raceless entities. As a legal term designating affiliation with a state, "nationality" is devoid of racioethnic implications.
Some states, though, define racioethnic subnations within their nationality and accord them semi-sovereign status within the state's sovereign polity. The People's Republic of China (PRC) and the Republic of China (ROC) in East Asia, and Canada and the United States (US) in North America, for example, exceptionalize a number of ethnic subnational entities within their civil nationality -- PRC and ROC largely through laws based on ideology, Canada and the US more through historical treaties backed up by idealistic laws.
Here we will look at ethnic subnationality in North America, which affects descendants of the numerous peoples that were conquered and displaced by European migrants and settlers after the time of Columbus. Subnationality in Japan, ROC, and PRC is discussed in other articles.
Native Americans
In the following discussion, I have sometimes used "Native Americans" to embrace everyone in Canada and the continental United States who would qualify as descendants of people who inhabited the territories that now define these countries before the arrival of Europeans.
The Constitution Act, 1982, of Canada refers to Canadian Native Americans as "aboriginal peoples of Canada". Part II covers "Rights of the Aboriginal Peoples of Canada". Section 35 "recognizes and affirms" the rights of "aboriginal peoples of Canada" defined as including "the Indian, Inuit and Métis peoples of Canada" (Part II, Rights of the Aboriginal Peoples of Canada).
The Bureau of Indian Affairs in the United States oversees most matters related to "Native Americans" in the United States generally, and to recognized tribes in particular, as well as matters related to Alaska Natives. "Alaska Natives" are categorically treated somewhat separately from "Native Americans" under most relevant US laws and within BIA. "Native Hawaiians" are now reached but a few laws intended for "Native Americans" but are not under BIA's jurisdiction.
United States
The United States nationality has been highly racilized since the founding of the country. US nationals and citizens have been racilized by race boxes, which in turn have been used to administer racist laws and policies.
Yesteryear's racist laws, which permitted segregation, and prohibited miscegenation, immigration, or naturaliation, have been replaced by racist laws that foster racial integration by requiring educators and employers, for example, to meet racial quotas in school admission and job placement. More social policies than ever before depend on people classifying themselves in an increasing number of racioethnic categories and census and other forms.
At least 800 distinct indigenous nations
In the United States, there are at least 800 distinct indigenous nations including tribes and bands. The federal government recognizes about 550 nations in the contiguous 48 states and Alaska. Hawai'i is ethnologically beyond the concern of Bureau of Indian Affairs (BIA). Another 250 nations are not federally recognized, but may be recognized by a state. Recognized tribes are sovereign within either the federal or a state polity. Unrecognized tribes legally do not exist.
All recognized tribes have the right to enroll their own members. Tribal governments oversee rights and entitlements related to tribal citizenship, such as voter registration and education and health benefits. Dual enrollment (tantamount to "dual nationality") is not allowed. However, only federally recognized tribes have access to benefits provided by federal programs run through BIA. Moreover, non-federally recognized tribes are not included in BIA's assessments of "Indian blood".
Federally recognized tribes require enrollment applicants to obtain a Certificate of Degree of Indian Blood (CDIB) from the Bureau of Indian Affairs (BIA). Most tribes require members to have 25 percent or more tribal blood, but some have lower thresholds in order to accommodate the increasing number of people who are highly mixed. However, most tribes do not admit applicants with less than one-forth total Indian blood, since this is the quantum specified in many federal laws. Some tribes have "honorable member" categories, which allow some people to belong to the tribe but not as part of its sovereign population.
One-quarter blood rule
The "one-quarter" blood rule is clearly a vestige of early racialism in parts of the United States. In 1866, Virginia declared that everyone having one-fourth or more "Negro blood" would be regarded a "colored person", while everyone who was not a colored person but who had one-fourth or more "Indian blood" will be considered an "Indian". In some states, such racialist definitions of personhood figured in racist laws, in some states, like those which prohibited interracial marriages between whites and non-whites.
BIA calculates an applicant's quantum of Indian blood on the basis of documented lineal descent from individuals listed on Indian census rolls that are typically about one-century old. Only federally recognized tribes are included in the computation. If AABC is the offspring of a pure AA mother and a BC father, where AA is a federally recognized tribe, BB is a state recognized tribe, and CC is not a recognized tribe, the CDIB will certify that AABC is 50 percent Indian, based only on the AA quantum. How the different tribal governments interpret AABC's membership status is their business.
The United States has a longer history of bureaucratic racialism and racism than possibly any country in the world. It's approach to racial issues today is more like a cleanup operation following a long and bitter battle that has raged for more than two centuries -- whereas the People's Republic of China (PRC), as a state with with recognized "minority nationalities" (ethnonational minorities), is a relatively new kid on the block. After the 1949 revolution, for humanistic if not always sincere ideological reasons, PRC reversed the minority suppression policies of Republic of China (ROC) predecessor. However, it has not to my knowledge gotten into the business of certifying blood quanta. One's affiliation with a recognized minority nation is pretty much left to its agency.
To be continued.
Indian Citizenship Act of 1924
Also known as the Snyder Act because it was proposed by Homer P. Snyder, Representative of New York, the Indian Citizenship Act of 1924 was approved by Congress on 2 June 1924 and was signed into law by Calvin Coolidge (1872-1933) as the 39th president of the United States, in a ceremony attended by representatives of a number of Indian nations.
The Indian Citizenship Act made non citizen Indians born within the United States citizens.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.
By the time this act was passed, about two thirds of all Indians had already become citizens by a number of means, including birth, naturalization, and congressional decree. However, under the treaties that recognized their tribes as national entities, about one-third remained citizens of only their tribes, and as such they were not under federal jurisdiction as US citizens.
1890 Indian Territory Naturalization Act
Not until 2 May 1890, when Congress passed the Indian Territory Naturalization Act, were members of tribes in Indian Territory allowed to apply for federal citizenship without losing their tribal citizenship. The act specified that in matters concerning members of a given Indian nation, the judicial tribunals of the Indian nation would continue to have jurisdiction.
Provided, however, that the judicial tribunals of the Indian nations shall retain exclusive jurisdiction in all civil and criminal cases arising in the country in which members of the nation by nativity or by adoption shall be the only parties.
Membership in the nation, not race, is the operating principle here. In point of fact, treaties with some tribes recognized that whites granted tribal citizenship by tribal councils would be subject to tribal laws, hence to prosecution, trial, and punishment by the tribes as though they were natives of the tribe.
Citizenship in Indian Territory
In March 1901, Congress decreed every Indian in Indian Territory a citizen of the United States. The 1901 act accommodated a local movement to incorporate Indian Territory as a state. By then, Indian Territory consisted of what was left when Oklahoma Territory was created out of a larger Indian Territory in 1890. In 1905, Indian Territory sought to become the state of Sequoyah but Congress said no. The two territories then rejoined to become the state of Oklahoma in 1907.
The Basic Naturalization Act of 1906 limited naturalization to aliens who were free white persons, and to aliens of African nativity and to persons of African descent. Non-citizen Indians, however, were not aliens. They were simply US nationals without federal political rights.
US citizenship after World War I
Some people argue that the Indian Citizenship Act was just another ploy in the federal government's strategy of assimilation and termination. While the mission of the Bureau of Indian Affairs was to integrate Indians into mainstream society and elminate tribes as legal entities, other forces were also behind the movement after the Great War of 1914-1918 to make all Indians citizens.
On 26 May 1924, just days before the Indian Citizenship Act was adopted, Calvin Coolidge signed the Immigration Act of 1924, which allowed for the setting of immigration quotas based on national origin. The quotas, which came into effect in 1929, all but excluded any immigration from Asia countries.
So the 1920s were years of patriotic confirmation of US citizens as people attached to the country historically. Indians should be citizens because they belonged to the US, and in fact were descendants of people who inhabited the territories that in time became the United States. Immigrants, though once welcomed as people to populate and develop the territories taken from the Indians, were now seen as threats to the ways of life established by the descendants of earlier European migrants.
Prior to the passage of the act of June 2, 1924, about two-thirds of the Indians of the United States were already citizens. There were a number of different provisions of law by which or under which Indians became citizens previous to June 2, 1924.
Right to vote
Amendent XV of 1870 guaranteed that Indians who became citizens could not be denied the right to vote because of their race -- at least not in federal elections. Still, like other citizens, they had to be eligible to register, which in some states meant being able to pay various taxes. And until 1920, only men could vote.
Some states continued to disallow Indian citizens to vote in state elections. Not until 1948 did federal courts overturn laws in Maine, Arizona, and New Mexico that prevented Indians from voting. Amendment XXIV, passed by Congress on 27 August 1962 and ratified on 23 January 1964, held that no citizen could be denied the right to vote because they failed to pay a poll tax or other tax.
The tyranny of law
Even after becoming a US citizen, Indians were not free of the legacy of treaties and laws that continue to this day to govern the status of tribes, the lives of tribal members, and tribal lands and properties held in trust. The rule of law -- or the tyranny of law when used by whites to force Indians to give up their lands and ways of life -- remains almighty.
If there is irony in history, though, it comes in the emergence from law schools all over the country, of batteries of Indian lawyers who know their way around law libraries, courtrooms, and Bureau of Indian Affairs archives.
Kappler on ways Indians became citizens
In a volume on laws and treaties related to Indian affairs compiled in 1929, Charles J. Kappler, an attorney who had been a Clerk to the Senate Committee on Indian Affairs, listed nine of the more important ways that Indians had become citizens prior to the 1924 Indian Citizenship Act. Kappler's list illuminates how very convoluted laws of citizenship had become.
While keeping Kappler's numbers, I have greatly condensed and rephrased his statements and added commentary. The headings, notes, and definitions of legal terms are also mine.
Some ways Indian's became US citizens
1. Provisions in some treaties allowed members of some tribes and bands to become citizens by application. (1867)
2. Some Indians became citizens of the United States and the state in which they resided through an allotment of land in the state. (1887)
3. Some Indians became citizens as a result of receiving a patent in fee simple related to a trust patent for a grant of land in severality to competent and capable Indians. (1906)
Note on legal terminology Here we see why laws became such powerful weapons in the hands of the few who wrote and enforced them.
fee simple an estate in real property, meaning land, ownership of which is absolute, limited only by the four government powers of taxation, eminent domain, police power, and escheat, and by certain other encumbrances, or by a condition in the deed.
In other words -- it's yours -- sort of.trust patent deed containing restrictions against alienation, especially one concerning land which is held in trust by the government for a period of years with an agreement to convey the land to the allottee at the end of the trust period -- usually twenty-five years for Indian trust land.
In other words -- Indians who played by the rules, and survived the trust period, ended up with title to the land and the right to sell it.alienate sell, exchange, or donate land, regardless of whether such sale, exchange, or donation is subject to a suspensive or resolutive condition.
In other words -- Indians were not permitted to sell the land granted them until the trust period had passed -- or until the government issued them "a patent in fee simple" before the expiration date -- whichever came first.severality exclusive individual ownership ownership, in which the relationship between the owner and the object possessed gives the owner the right to transfer possession to others .
In other words -- it's yours to sell -- if and when it is actually yours.4. Adopting habits of civilized life -- meaning that an Indian who was born within the territorial limits of the United States (not Canada, a foreign entity) voluntarily takes up residence somewhere within the United States, apart from any tribe of Indians. (1887)
5. Minor children of Indians who became citizens upon allotment.
6. Citizenship by birth to citizen Indian parents -- including legitimate children born of an Indian woman and a white citizen father -- but apparently not children born of a white citizen mother and a non-citizen Indian father.
7. Soldiers and sailors who served in "the recent World War" (World War I) and were honorably discharged. (1919)
8. Through marriage -- in the case of an Indian woman who married a citizen of the United States. (1888-1922)
Note on end of derivative citizenship An act of 9 August 1888 provided that an Indian woman of any tribe, who married a US citizen, would become a US citizen, though she might lose certain tribal property rights. At the time, an alien woman who married a citizen became a citizen, and a citizen female who married an alien usually stood to lose her citizenship in the process of gaining his nationality.
Citizenship derived through marriage ended with the passing of the Cable Act of 22 September 1922. This act, also known as the "Married Women's Independent Nationality Act", also allowed a woman to keep her US citizenship when she married an alien, so long as he was an "alien eligible for naturalization" (which excluded Orientals), and so long as she did not reside outside the US two or more years.
From 1929, the U.S. Immigration and Naturalization Service began to issue a "Certificate of Derivative Citizenship" to women who had obtained US citizenship through marriage prior to the 1922 law. While such certificates sometimes sufficed as best evidence of citizenship, strict legal proof of derived citizenship continued to be proof of marriage to a citizen and proof of his citizenship.
9. A special act of Congress could make a particular tribe or group of Indians citizens. For example, in 1901, Congress extended citizenship to Indians in the Indian Territory that became part of Oklahoma in 1907. And in 1921, citizenship was extended to all members of the Osage tribe.
Charles J. Kappler
Charles J. Kappler (compiler and editor)
Indian Affairs: Laws and Treaties
Washington: Government Printing Office, 1903-1979
Volumes 1-5 (Kappler, 1903-1941)
Volumes 6-7 (Department of Interior, 1979
Vol. IV: Laws, Compiled to March 4, 1927
Washington: Government Printing Office, 1929
Part VI: Juristiction, Indian Rights
Indian Citizenship
Pages 1165-1166
See Indian Affairs: Laws and Treaties on the Digital Library server of Oklahoma State University Library for both texts and scans of the pages of all seven of the volumes attributed to Charles J. Kappler. Kappler, an attorney, was working for Congress as a Clerk to the Senate Committee on Indian Affairs when he compiled the first two volumes. From 1905 he entered private practice and represented various Indian tribes. Congress commissioned him to compile three more volumes until his death in 1941.
Canada
Canada's Constitutional Act of 1982 makes the following provisions for three kinds of "aboriginal peoples" -- Indian, Inuit, and Métis.
Subsection (1) of Article 35 recognizes existing aboriginal and treaty rights. Subsection (2) defines "aboriginal peoples of Canada". Subsection (3) clarifies that "treaty rights" include land claims. Subsection (4) assures that the aboriginal and treaty rights apply equally to both men and women.
An additional provision commits the national and provincial governments of Canada to invite representatives of aboriginal peoples to participate in constitutional conferences to amend articles related to aboriginal peoples.
Part II: Rights of the Aboriginal Peoples of Canada
Article 35
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.
Note Subsections 35 (3) and (4) were added by the Constitution Amendment Proclamation, 1983.
Article 35.1
The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 1867", to section 25 of this Act or to this Part,
Note The "Constitution Act, 1867" is the present name of what was originally called the "British North America Act, 1867". Section 91 of this act listed a number of "Powers of the Parliament" as classes. Class 23 was "Copyrights." Class 24 was "Indians, and Lands reserved for the Indians." Class 25 was "Naturalization and Aliens." Class 26 was "Marriage and Divorce."
(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and
(b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item.
Three kinds of "Aboriginal Peoples"
Canada's Constitution Act of 1982 thus defines "aboriginal peoples of Canada" as "Indian, Inuit and Métis peoples".
The term "First Peoples" is preferred by people who find the expression "aboriginal" offensive. By what ever name, the people referred to by these terms are the descendants of those who inhabited what is now Canada before the arrival of Europeans.
Indians
"Indians of Canada" refers to "aboriginal peoples of Canada" who are not Inuit or Métis. "First Nations" is the term preferred by people who think "Indians" is offensive.
So-called status Indians are entitled to have their names on the Indian Register maintained by the Candian federal governmnet. Enrollment is based on specific criteria stipulated in the Indian Act. This statute is administered by the Minister of Indian Affairs and Northern Development, which is comparable to the Bureau of Indian Affairs in the United States.
So-called non-status Indians are people who regard themselves as Indians but are not recognized as such by the Canadian government because they fail to meet legal criteria for registration. While not entirely ignored, they do not have the entitlements of status Indians.
Inuit
Inuit refers to people who have inhabited mostly the northern parts of Canada. "Inuit" apparently means "the people" in Inuktitut, the language of Inuit, who use this term to refer to themselves.
Metis
In Canada, the National Definition of Métis is "a person who self-identifies as Metis, is distinct from other Aboriginal peoples, is of historic Métis Nation Ancestry and who is accepted by the Métis Nation." All phrases in this definition are restricted by their own definitions. Basically, it comes down to anyone accepted by the Métis Nation.
The Metis National Council at one time considered the following definition of Métis -- "A person who has an ancestor who received a land grant or scrip under the Manitoba Act, 1870, or the Dominion." This defefines hinges on a trail of documents going back to an 1870 land grant.
The following defintion of Métis was adopted by the Métis National Council in September 2002.
National Definition of MétisMétis means a person who self-identifies as Métis, is of historic Métis Nation Ancestry, is distinct from other Aboriginal Peoples and is accepted by the Métis Nation. Defined Terms in National Definition of MétisWHEREAS on September 27, 2002 the Métis Nation adopted a national definition of Métis; and WHEREAS within the definition there are defined terms; THEREFORE BE IT RESOLVED that the Métis Nation adopts the following defined terms for its national definition of Métis; "Historic Métis Nation" means the Aboriginal people then known as Métis or Half-Breeds who resided in Historic Métis Nation Homeland; "Historic Métis Nation Homeland" means the area of land in west central North America used and occupied as the traditional territory of the Métis or Half-Breeds as they were then known; "Métis Nation" means the Aboriginal people descended from the Historic Métis Nation, which is now comprised of all Métis Nation citizens and is one of the "aboriginal peoples of Canada" within s.35 of the Constitution Act of 1982; "Distinct from other Aboriginal Peoples" means distinct for cultural and nationhood purposes. |
The Metis National Council estimates that the population of the Metis Nation is from 350,000 to 400,000 people in Canada. The Metis population was 262,785 according to the 2001 Canadian Census. This accounts of 26 percent of the total Aboriginal population of Canada according to the census.
The term "métis" derives from a Latin word which means "to mix" or "to mingle" and was used, with some other terms that have fallen out of use, in what is now Canada to refer to the offspring of women of specific Indian bands and men, mostly fur traders, of specific European descents. Its Spanish and Anglicized equivalents are "mestizo" and "mestee". "Half-breed" and other English terms have also been used to label Métis.
There have been some attempts to define membership in Métis organizations racially, with blood-quanta as high as one-quarter, but today most operational definitions stress "cultural" and "historical" over strictly genetic (biological descent) critera.
In North America, historically, the term "metis" usually referred to offspring of traders and other males of European descent with Indian women. In what is now Canada, the term was originally used to label several more specific European-aboriginal mixtures. Today, the term more generally applies to anyone who considers themselves of mixed aboriginal and European descent.
The term "métis" is also used more generally in French to refer to any person of apparently "mixed race". The feminine form "métisse" has been hijacked in English to mean "a woman who is multicultural, multiracial, and whose roots are multicontinental".
There are a number of Métis organizations in Canada, but also in the United States and other countries. Such organizations have various missions and rules for membership.
Some North American Indians in Canada and the United States have rights to cross the border between these countries. The United States, while generally more liberal in its recognition and accommodation of these rights, applies its own standard of "recognition" to Canadians who claim such rights.
The United States does not in principle recognize recognize Métis organizations as tribal entities. However, the US accepts documents from such organizations may issue on behalf of their members, if the documents contribute to proof that a Canadian applying for entry to or status in the United States for treaty and statute entitled treatment as an "American Indian" is at least 50 percent such by blood (see next section on "Border-crossing rights").
Freedom of passing
The border between Canada and the United States passes through the territories of numerous "American Indian" nations. Because their territories straddle the border, a 1794 treaty gave American Indians rights to freely pass and repass the border.
Today, such rights continue to derive from the realization that American Indians are naturally affiliated (though not necessarily equally) with the territorities of both countries. These rights are legally better facilitated today by the United States, but Canada also recognizes the original treaty in its common law.
The Jay Treaty and freedom of passage
The Treaty of Amity, Commerce, and Navigation between the United States and Great Britain, which the two countries signed in 1794, normalized their relations in the wake of the American Revolutionary War of 1775-1783. The 1783 Treaty of Paris, the treaty of peace that concluded the war, recognized the freedom and sovereignty of several British colonies and otherwise established the initial boundaries of the United States.
The eastern stretch of what is today the "International Border" between the United States and Canada later underwent some modification consequential to treaties following border wars and disputes. However, the 1794 amity treaty -- commonly called the "Jay Treaty" -- included the following provision.
Treaty of Amity Commerce and Navigation (1794)ARTICLE III. It is agreed that it shall at all times be free to His Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, 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, (the country within the limits of the Hudson's Bay Company only excepted.) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other. No duty of entry shall ever be levied by either party on peltries brought by land or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians. |
The Jay Treaty in US laws and regulations
Substantial parts of the above article -- and an 1796 "Explanatory Article to the Third Article of the Treaty of November 19, 1794, Respecting the Liberty to Pass and Repass the Borders and to Carry on Trade and Commerce" -- continue to have legal force in US statutes and courts of law regarding border-crossing rights of Canadian members of tribes whose territories were divided by the creation of the US-Canadian border. These tribes include the Six Nations or Iroquois.
In recognition of the Jay Treaty, US statutes also extend exceptional rights of permanent residence to qualified Canadian Native Americans who have settled in the United States. Title 8, Section 1359 of the United States Code (USC), regarding the application "Aliens and Nationality" provisions in the title to American Indians born in Canada, reads as follows (adapted from website of Legal Information Institute of Cornell University Law School, retrived 25 August 2009).
United States Code (USC)8 U.S.C. § 1359 USC Title 8: Aliens and Nationality [ Chapter 12: Immigration and Nationality ] Section 1359: Application to American Indians born in Canada 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. |
The letter and spirit of US codes related to the Jay Treaty and its supplementary article are facilitated in Title 8, Part 289 of the Code of Federal Regulations (CFR), which makes the following stipulations regarding "American Indians born in Canada" (adapted from website of Electronic Code of Federal Regulations, National Archives and Records Administration, U.S. Government, retrived 25 August 2009).
Code of Federal Regulations (CFR)Title 8: Aliens and Nationality Part 289 - American Indians born in Canada [Authority: Secs. 103, 262, 289, 66 Stat. 173, 224, 234; 8 U.S.C. 1103, 1302, 1359; 45 Stat. 401, 54 Stat. 670; 8 U.S.C. 226a, 451.] § 289.1 Definition. The term American Indian born in Canada as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child of such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood. [29 FR 11494, Aug. 11, 1964] § 289.2 Lawful admission for permanent residence. Any American Indian born in Canada who at the time of entry was entitled to the exemption provided for such person by the Act of April 2, 1928 (45 Stat. 401), or section 289 of the Act, and has maintained residence in the United States since his entry, shall be regarded as having been lawfully admitted for permanent residence. A person who does not possess 50 per centum of the blood of the American Indian race, but who entered the United States prior to December 24, 1952, under the exemption provided by the Act of April 2, 1928, and has maintained his residence in the United States since such entry shall also be regarded as having been lawfully admitted for permanent residence. In the absence of a Service record of arrival in the United States, the record of registration under the Alien Registration Act, of 1940 (54 Stat. 670; 8 U.S.C. 451), or section 262 of the Act, or other satisfactory evidence may be accepted to establish the date of entry. [29 FR 11494, Aug. 11, 1964] § 289.3 Recording the entry of certain American Indians born in Canada. The lawful admission for permanent residence of an American Indian born in Canada shall be recorded on Form I-181. [33 FR 7485, May 21, 1968] |
US policy statement on American Indians
According, American Indian who were born in Canada, who can document their status in Canada and their possession of 50 percent or more "Indian blood" as defined by US law, cannot be denied admission to the United States, and have rights to certain benefits under US law and even to permanent residence.
The Consular Services Canada section of The U.S. Embassy in Canada had the following notice on its website as of 23 August 2009 ([bracketed] clarifications, and underscoring, are mine).
Consular Services, US Embassy, CanadaFirst Nations and Native AmericansMembers of the First Nations and Native Americans Born in Canada The Jay Treaty, signed in 1794 between Great Britain and the United States, provided that American Indians could travel freely across the international boundary. The United States has codified this obligation in the provisions of Section 289 of the Immigration and Nationality Act (INA) as amended. Native Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study, retirement, investing, and/or immigration. Qualifying as an American Indian born in Canada In order to qualify under Section 289 of the INA, eligible persons must provide evidence of their American Indian background to the U.S. Department of Homeland Security Customs and Border Protection (DHS/CBP) officer at the intended Port of Entry. The documentation must be sufficient to show the bearer has at least fifty percent of American Indian race. Such a person may then be admitted without a visa. Generally such evidence would include either an identification card from the [Canadian] Ministry of Indian and Northern Affairs or a written statement from an official of the tribe from which you or your ancestors originate - substantiated by documentary evidence (tribe records and civil long form birth certificate bearing names of parents). Such a statement would be on the tribe's official letterhead and should explicitly state what percentage American Indian blood you or your parents possess, based on official documents/records. You should also provide photograph identification, such as a driver's license or passport. The INA does not distinguish between "treaty" and "non-treaty" or "status" and "non-status" Indians as determined by Canadian law. The only relevant factor is whether the individual has at least 50% American Indian blood. Similarly, letters or identification cards from Metis associations generally cannot be accepted, as the Metis are not an Indian Tribe. If such identification helps to establish that an individual is at least 50% American Indian, however, it can also be included with other conclusive evidence. |
US courts have generally interpreted the 1794 Jay Treaty and the 1796 explanatory article, and related US statutes, very broadly, in favor of Canadian Native Americans who have entered and remained in the United States.
Unlike the United States, however, Canada has never embraced the treaty and explanatory article into its statutues. Canadian courts have treated these instruments more as elements of Canadian common law, and have been more restrictive in their views of "aboriginal rights" and border-crossing freedoms.
For more about border-crossing related to immigration and nationality, see the "Border-crossing issues" part of Nationality law abuse and fraud: Exploitation of blood and soil in the "Nationality" section of this website.
Native Americans and dual nationality
If qualified Native Americans have border-crossing rights -- and even rights of abode -- in either or both the United States and Canada -- why are they not dual nationals, as a matter of birthright, in the nationality laws of both countries? The answer is simple. The rights some Native Americans in one country might have in relation to the other are facilitated by their common "Native American" subnationality -- which is nested within their overarching US or Canadian nationality.
So-called "minority nationalities" (ethnonational minorities) in the People's Republic of China, as Chinese -- i.e., people who possess PRC's state nationality, a raceless, non-ethinic civil status -- are identified also by their "ethnonationality". Majority Chinese are "han" -- other Chinese are one of 55 "minority nationalities" -- and there appears to be a category for tantamount to "Other". These are all nested within the state's nationality. The state's nationality is recognized in international private law. The subnationalities are recognized under domestic law. The same is true of so-called recognized Indian "nations" in the United States, in that being a member of such a nation matters only within within the framework of U.S. federal and/or state laws. U.S. passports define their bearer as possessors of U.S. nationality. They do not clarify if the bearer is a "citizen" or "national" of the United States. Much less do they specify whether the bearer is affiliated with a federally recogined tribe, which does not concern other passport issuing states.
Native Americans may be regarded as members of one or another of the numerous "nations" that existed when Europeans began arriving, and during the centuries that the descendants of European migrants founded the "nations" of the United States and Canada. However, the Indian nations are regarded as having lost the full sovereignty they may have had in the past, in the treaties they made with the "new" nations -- which now hold in trust what remains of original Indian lands, or reservation lands, and otherwise impose their nationality and sovereignty on the recognized members of the recognized tribal entities.