Members 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 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.

Possible New Documentation Requirements

The Western Hemisphere Travel Initiative (WHTI) is the implementation plan for Section 7209 of the Intelligence Reform and Terrorist Protection Act of 2004. It requires generally that all travelers into the United States must be documented with a passport. The first phase will affect those entering by air or sea beginning in January 2007; the second phase will affect all those entering by land beginning in January 2008. Both DHS and the Department of State are aware of the concerns of American Indians regarding possible changes resulting from implementation of the WHTI, and are considering what documentation will satisfy this requirement. There will be a Notice of Proposed Rule Making published in the Federal Register in advance of the implementation date with a public comment period. Comments to the proposed rule are welcome.

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.

Applying for U.S. Permanent Resident Status (Green Card)

If not documented at the Port of Entry, you can apply for permanent resident alien (S1-3) status by applying at the nearest DHS office. To apply you should provide: proof of your legal entry into the United States, your civil long form birth certificate (bearing names of parents), documentation of your American Indian heritage, and any other documentation DHS may require.

Persons granted permanent resident alien status will be issued a resident I-551 (green card) by DHS. Recipients are entitled to all rights and privileges accorded legal immigrants to the United States, including if they desire, eventual naturalization as American citizens and the right to sponsor immediate family members into the United States. Resident aliens are entitled to file on behalf of a spouse and unmarried children if they are not also eligible to be admitted under Section 289 of the INA.