Jay Treaty
The Jay Treaty, signed in 1794 between Great Britain and the United States, provides that American Indians may travel freely between the two countries. Under the treaty and corresponding legislation, Native Indians born in Canada (who have 50% or more blood quantum) are entitled to freely enter the United States for a variety of purposes, including but not limited to employment, study, and immigration. However, Canada has not provided reciprocity of these conditions, and therefore may deny you entry into the country if you’ve been convicted of a crime or pled to a crime in the United States.
Pine Tree Legal Aid provides additional information about Cross Border Rights for indigenous people in the U.S. and Canada.
Contact MILS
If you need additional assistance, please contact MILS at 231-947-0122.
History of the Jay Treaty
The Jay Treaty has been recognized as giving Canadian-born Native Americans the right to freely pass between the boundaries of the United States and Canada. Signed in 1794, the Treaty was originally an agreement between Great Britain and the United States designed to resolve trade, land, and debt disputes. Additionally it allowed citizens and subjects of both nations, as well as Indians, the right to travel
freely between the territories.
In 1952, the United States reincorporated the spirit of the Jay Treaty into law by providing for the “right of American Indians born in Canada to pass the borders of the United States,” as long as the person possesses at least 50 percent American Indian blood. In Akins v Saxbe, a federal court reaffirmed this principle, stating the Jay Treaty coupled with the 1952 law “recognized the right of American Indians to unfettered movement throughout the territories occupied by them which had been divided by the International Boundary between the United States and Canada.”
For Canadian-born Native Americans
Here are key provisions for understanding what benefits you might be eligible for if you are Canadian First Nation:
Who is eligible for benefits under the treaty?
Native Americans born in Canada with at least 50% Native American blood.
What sort of identification do I need?
For entering the US – The form of identification you need depends on whether you’re entering by sea, land, or air.
If you’re entering by air, you still need a Passport.
If you’re entering by sea or land, you simply need a tribal identification card. However, you may additionally be asked for a letter stating your percentage of Native American blood, long form birth certificate, and your Indian status card.
Note that Form I-181 is no longer required for entry under the Jay Treaty.
For work – You have to obtain a Social Security Card. In order to do this you have to prove your identity, age, and immigration status. To prove your legal immigration status, you can use a letter of quantum from your Band office along with your long form birth certificate. Alternatively, you can use a current document given to you by U.S. Citizenship and Immigration Services, such as a Form I-94. If the Social Security Administration is uncooperative about accepting your letter of quantum or any other piece of the above documentation to prove alien status, you can refer them to the following regulations from the Social Security Administration's own handbook:
SI 00502.105 - "Exemption from Alien Provisions for Certain Non-citizen Indians"
RM 00203.430 - "Evidence for an SSN Card for an Alien Lawfully in the U.S. Without INS Documents"
For student aid – Any of the following should be sufficient according to the federal student aid website:
A “band card,” issued by either the Band Council of a Canadian Reserve, or the Department of Indian Affairs in Ottawa.
Birth or baptismal record.
Affidavit from a tribal official, or someone knowledgeable of the student’s family background.
Any other form of identification from a recognized Native American territorial organization.
What benefits am I eligible for under the treaty?
Right to reside in the United States – You may enter and live within the U.S. without fear of deportation. Additionally you may work in the U.S. after acquiring a Social Security Card.
Right to State Public Benefits – In the State of Michigan, you are eligible for all “bridge programs,” such as bridge card/food assistance, child care assistance, cash assistance, and medical assistance.
Right to Federal Public Benefits – Depending on your circumstances, you may be eligible for Medicaid and Medicare. If you meet the required number of years of work within the United States, you are eligible for programs such as Social Security Retirement or Social Security Disability.
Right to Student Financial Aid – You are eligible to apply for Title IV aid. See the Federal Student Aid Handbook for more details and how to apply (search text for “Jay Treaty”).
What about my family?
In order to bring your spouse or child into the U.S. if they do not have at least 50% Native American blood, you have to sponsor them by applying to U.S. Citizenship and Immigration Services.
For U.S.-born Native Americans
Canada does not honor the Jay Treaty requirements of free passage for Native Americans. To enter Canada, you will need (1) valid identification and travel documents, such as a passport and (2) Tribal ID and State ID/driver’s license. You may be denied entry into Canada if you’ve been convicted of a crime or pled to a crime in the United States. If you are a U.S. citizen and have been convicted of or pled to a crime in the United States that is or may be considered a crime in Canada, then you may apply for entry into Canada by being “Deemed Rehabilitated,” requesting “Individual Rehabilitation,” applying for a pardon, or requesting a Temporary Residence Permit.
Being “Deemed Rehabilitated” – Being “Deemed Rehabilitated” is risky because the application is conducted by a border agent at the point of entry into Canada. If you are not “Deemed Rehabilitated” you will be denied entry and will have to turn around and go home. In order to be deemed rehabilitated the crime you committed must have been 1) punishable in Canada by less than 10 years in prison; and 2) 10 years must have elapsed since you committed or finished the sentence for the crime.
Individual Rehabilitation – This is an application process done prior to your planned visit, so you know in advance of your planned trip whether you will be allowed to enter Canada. The application may be downloaded online. In order to apply for Individual Rehabilitation two conditions must be met: 1) 5 years must have elapsed since you committed the crime and 2) 5 years must have elapsed since you completed all the requirements of your sentence. Individual Rehabilitation costs a non refundable CA$200.00 initially and fees can increase to CA$1000.00 depending upon the seriousness of the crime committed.
Apply for a Pardon – This is a process that must be applied for and conducted in the State in which you committed the crime. If you do receive a pardon then you still have to check with the Canadian Citizenship and Immigration office to see if they will accept it and allow you entry.
Request a Temporary Residence Permit – This is a process that initially begins from your home in advance of your planned travel. In order for you to be eligible for this 1) 5 years must have elapsed since the end of your sentence and/or 2) special circumstances have arisen wherein your need to enter or remain in Canada outweighs the health and safety risk to Canadian residents. Temporary Residence Permits cost $100 - $500 (depending upon how many people in your family apply).
Helpful Links: