Wabanaki Legal News, Summer 2008
Almost two years ago, on November 24, 2006, the U.S. Department of Homeland Security adopted new rules to control how people could enter the United States at an airport. These rules now require that every person must present a passport, if they wish to enter the United States at an airport. This passport requirement applies to Indians arriving at an airport, both those born in the United States and those born in Canada. In other words, if you are coming to the United States from another country by plane, you will need a passport. It does not matter if you are Indian: if you are coming into the United States at an airport, you need a passport. It is also important to remember that if you are a Canadian citizen, under certain circumstances you may also need a visa. If you have any questions about this, please contact our office.
On April 3, 2008, the U.S. Department of Homeland Security and the U.S. Department of State adopted rules that affect people who are entering the United States by land or at a seaport (as opposed to an airport, as discussed above). Under these new rules, beginning on June 1, 2009, most people crossing into the United States by land will need to show a passport. However, there is a limited exception to these new rules for Indians. Indians will not be required to show passports IF their tribal documents meet strict security guidelines.
Under the new rules, existing tribal identification documents will NOT be allowed as border-crossing documents. Canadian Indians will need an Indian and Northern Affairs Canada “INAC card” issued by the Canadian Department of Indian Affairs and North Development. Right now, the Canadian government is still in the process of developing this card which it calls its “Secure Certificate of Indian Status” or secure status card. The new card will contain a barcode that can be scanned by a computer. The Canadian government is working with the U.S. government to ensure that the secure status card satisfies the U. S. government and can therefore be used for crossing the border. When U.S. authorities make a final decision, the Canadian government will inform all First Nations. For more information, go to http://www.ainc-inac.gc.ca/pr/pub/ywtk/ifk-eng.asp#quas14.
The bottom line is that a Canadian-born Indian will need an INAC card (assuming the secure status card is approved by the U.S. government) or a passport in order to enter the United States by land or at a seaport.
For U.S.-born Indians, the new border crossing rules are a little different. U.S.-born Indians may use documents issued by their own tribes at land and sea border crossings, IF the tribe or band works with the U.S. government to produce tribal identity documents which satisfy the security concerns of the U.S. government.
The Department of Homeland Security explained the rules for U.S.-born Indians as follows:
… the Departments have adopted an alternative approach … for U.S. Native Americans. DHS [Department of Homeland Security] will work with tribes recognized by the United States government if each tribe (1) continues to have strong cultural, historic, and religious cross-border ties; and (2) is willing to improve the security of the tribal enrollment documents in the future.
… acceptance of a tribal enrollment document would be contingent upon: (1) the tribe satisfactorily establishing identity and citizenship in connection with the use of its document; (2) the tribe providing CBP [US Customs and Border Protection] with access to appropriate parts of its tribal enrollment records; and (3) the tribe agreeing to improve the security of its tribal documents in cooperation with CBP."
The bottom line is that a U.S.-born Indian will need a tribal identity document approved by the U.S. government or a passport in order to enter the United States by land or at a seaport.
It is important to remember that the U.S. government does not have the authority to keep a U.S. citizen out of the United States, even if that person does not have the right documents. However, a U.S. citizen who tries to enter the United States without the documents which the government wants to see will be interviewed and investigated until the border officials are satisfied that the person really is a U.S. citizen. That process could take several hours and could result in a lot of stress, anxiety and delay at the border.
Many people have criticized the new rules, especially as they apply to Indians crossing by land from Canada. The criticism is that the new rules violate the Jay Treaty. The Jay Treaty, which was signed in 1794, provided that Canadian-born Indians have the right to freely pass the United States border by land or by inland navigation. In adopting the new rules, the U.S. government responded to this criticism by saying, essentially, that there is nothing in the Jay Treaty that prevents the United States from demanding proof of identity and citizenship. In other words, the U.S. government is saying that it does not intend to prevent Indians who are protected by the Jay Treaty from crossing the border, but rather that it is merely requiring them to prove who they are, which does not interfere with their rights under the Jay Treaty. It appears that nothing in these new rules changes the U.S. law that says that a Canadian-born Indian must have at least 50% Native blood in order to be protected by the Jay Treaty.
Finally, a person who was born in Canada and who has a U.S. permanent resident card will not need a passport or an INAC card to re-enter the United States. People who have U.S. permanent resident cards can continue to use their permanent resident cards to enter the United States - by land, at a seaport or at an airport.