Jay Treaty-Related Immigration Case News Coverage


VANCOUVER – A Canadian aboriginal who has spent months fighting with U.S. Customs for his treaty right to cross the border freely has been given an American green card once again.

But Peter Roberts’ lawyer expects more First Nations will run into challenges at the border, despite a 200-year-old treaty granting free border access rights to North American aboriginals crossing into the United States.

Roberts, a Tsawwassen, B.C. dentist, invoked his Jay Treaty rights last year when border guards at the Point Roberts, B.C. border crossing questioned his status.

Roberts has fair skin and curly hair from his Ukrainian mother, but is also 50 per cent Campbell River Indian from his father.

Under the Jay Treaty, as long as a native can prove they have at least 50 per cent aboriginal blood, they have a right to cross the U.S.-Canadian border freely and live and work in the United States.

Roberts was due for a full hearing before an immigration judge Friday but his lawyer, Len Saunders, has been told Roberts has been allowed back as a permanent resident under a different green card designation.

During a hearing in January, a lawyer for U.S. Immigration and Customs Enforcement told the judge documents from Roberts’ paternal grandmother submitted to immigration officials decades ago said her own father was Irish.

Saunders said U.S. government documents show Roberts was admitted originally in the 1960’s not as a Jay Treaty green-card holder, but in another “obscure” category.

“In my mind there’s really no difference,” Saunders said.

“Unfortunately the whole Jay Treaty, American-Indian born in Canada, was not decided. We didn’t concede anything, the government didn’t concede anything.”

Because North American aboriginals aren’t considered immigrants, Jay Treaty natives don’t need a green card, but they do qualify for a card.

Saunders predicts there will be many more such confrontations at U.S. border crossings.

“At some point in the future maybe these Jay Treaty claims will be litigated. But maybe this wasn’t the case to do it,” he said.

He wondered what will happen when new passport requirements are brought in in June, 2009.

“We’ll if I’m First Nations and have a claim to Jay Treaty benefits, does that mean that I have to get a Canadian passport to enter the U.S.?” he asked.

“Are they going to make every First Nation person in Canada get a passport? I don’t think they can – who’s going to litigate that?” Saunders said.

An online publication by the American Indian Law Alliance based in New York gives advice, tips and rights to aboriginals on border crossing.

“Appearance can make a difference,” the document states. “Our research shows that if you ‘look Indian,’ the (U.S. immigration) officer may require less documentation.”

12 thoughts on “Jay Treaty-Related Immigration Case News Coverage

  1. Amanda Leith February 17, 2009 / 6:33 pm

    I have entered the United States as a visitor granted by the border patrol. They told me that I would have to apply as a PR(permanent resident). I was under the impression that I was able to live and work in the US and be granted a green card or I-551. I have been given forms to apply for PR status but I am hesitant in following through due to my situation.

  2. Amanda Leith February 17, 2009 / 6:36 pm

    I am a Canadian First Nations Indian. I would like to know how to go about getting a I-551 green card?

  3. barbann September 28, 2009 / 3:00 pm

    For the past year, I have been trying to cross the US border via the Jay Treaty as a “Native North American citizen”. According to USA info on line – all is needed is your INAC card (Indian Northern Affairs Canada). However, each time I cross I am told I need “another document”. I have presented my passport with my INAC card – and it still is not acceptable—they said I now need a letter from my band chief- and they evcn questioned the identity of my tribe! They also said I need to get 3 passport photos – I do not know why since I had a passport. My border wait is usually 2 hours or more and my vehicle is searched, etc. I do think Native Canadians need to have a “Standby Lawyer” from the AFN for our issues. Also, it would be interesting to know how many natives have actually been admitted on the Jay Treaty and how many have not. A survey would help alot.
    Of interest, is that – in Sept I presented my passport and INAC card as mentioned above and they denied my entry – because I did not have a band letter. So, I asked to be admitted under the Visa Waver pass like the other Snowbirds – but I was denied this also for what they state- was “intent to stay”.
    I said, I always returned on time, so why should I do that…..they eventually let me go on a two week pass…..
    My plan was to retire in the USA in accordance with the Jay Treaty with an old high school American boyfriend.
    It is of interest too – that in the Seattle times, Sept 13, 2009 – there is a story on a Canadian girl and her American husband – she was banned from entering the USA due to “intent to stay” too.
    The Jay Treaty needs to be honored.

  4. debra stawnyczy October 7, 2009 / 11:57 am

    This treaty like all our treaties needs to be honored. I agree we (the citizens of Indian,Metis and Inuit nations) would greatly benefit from legal services provided by the AFN. Liken it to a Canadian ambassador of sorts, with 24hr.service for our people.
    As it stands we are expected to be our own advocates and have an understanding of legalese to simply get through the day….or stand by and watch our rights trampled by the bigots and neo natzi’s who pass themselves off as police officers and border guards.
    These types harken back to the days of the Indian agents (some with mere grade school educations) who would, and could negate the rights and freedoms of the reserves residents at will.

  5. Les Perley March 24, 2010 / 8:36 pm

    I am a status indian living in canada, however, I have a brother in connecticut , who has resided there for over 40 years. He is also a status Indian born in Canada. He is seeking assistance or information regarding his status as a North American Indian and his rights for recognition as being a dual citizen. As a citizen his property rights are the same as any American citizen includeing taxation. However, his concern is that if his wife passes away and he is a beneficary to her assets is taxed as a citizen or as a nonresident; can you assist in provideing this information. you can contact me at (506) 473 -3642.
    I thank you in advance for your consideration


    Les Perley

  6. WJR November 30, 2010 / 5:59 pm

    Hello, I hate to post this here but I am desperate for any help. I am a Native Canadian and need help or advice please.

    I entered the US back in 2005 with my status card, back when you didn’t need passports or blood quantum letters to enter. I went to visit my girlfriend, who I married in the USA. I was able to get a social security card and nothing more was mentioned to me regarding my status.

    Being young, I was a bit naive and unaware of what paperwork I should have done, but back then nothing was emphasised to me and I did not know. When my wife (who is a dual-citizen of USA and Canada) and I went to visit Canada for a few months in 2007, I had some trouble when we tried returning to the USA three months later.

    The agent asked if I had been in the USA before and I told him that I lived there. He took me aside while my wife waited (our plane almost left without us). The agent wrote in my passport (on the visa pages) “B-2” and “I-181 advised.” I haven’t done much traveling in my lifetime so I didn’t know what this meant. My wife didn’t even understand what it meant.

    In 2010 my wife and I returned to Canada because my father had a heart attack. At first I was going to go by myself to visit him, but my wife didn’t want to be alone. It is a good thing she decided not to go alone because now we are in a mess. I will explain more.

    Well, now that my father has recovered we wish to go back to the USA. Even though she is also Canadian, she would like to return back and see her family and stay there again. The problem is, I do not know what to expect at the border. Does the “B-2” written in ink in my passport a real visa? I thought Native Americans, according to the Jay Treaty, are not held to a visa. We are supposed to be able to cross between countries as we wish. That is another issue by the way, I was never handed the I-181 form when I entered the US, not even the second time I went, and I feel this is no fault of mine as I am not a US agent and it isn’t my job to hand out the forms. I was always truthful with the agents and did not lie.

    I really don’t know what to do. Should I try to cross by myself first and see what happens? My wife is very afraid of going together with me. She says she is afraid that once she is past US customs they will view her only as a US citizen (the US does not recognise dual citizenship), and if I am denied entry she will be forced to board the plane and leave me behind.

    Does anyone know anything that could help? As I said, since I am Native American, a visa should not even pertain to me and it almost seems that what the agent did was illegal because it goes against the Jay Treaty that states that Native Americans from Canada can go between the US and Canada whenever they wish, regardless of whether they want to live in the US or just visit.

  7. Tammy June 9, 2011 / 1:26 am

    How do i get a blood quantum in canada?

  8. Samantha August 9, 2011 / 6:00 pm

    canada does not give blood quantum’s but you can get a letter from your band office by contacting your tribe. someone there will hopefully have your information on file and put together a simple letter stating your blood percentage. Thats what i did i sent an email and i got an email back week later with my letter.

  9. Samantha Marilyn August 9, 2011 / 7:28 pm

    I am An Inuk of more than 51% inuit ancestry and i have a letter that states my percentage but I’m having issues when it comes to social security and getting a card so I can work. I am also having problems with getting PR status. Are inuits included in the jay treaty since they are aboriginal also? Is there any other Inuits out there that have tried to do this before. I have no problem crossing the boarder with my letter but receiving any benefits like a green card or a social security card I cant get for some reason. If anyone knows anything please could you post back or email me sammiee46@hotmail.com

  10. greg December 21, 2011 / 11:32 am

    according to what i have been told at the montana/canada border, you need an inuit enrolment card. and they will probably ask you for blood quantum letters indicating your “percentage of inuit blood” (which is racist by the way) and the percentage of inuit blood of both of your parents.

    i have been living permanently in the us since 1999, but applied to study in canada in 2010 for a master’s degree. i have been hassled to no end by both canadian and american border patrol.

    one immigration officer even went so far as to tell me that the Jay Treaty hadnt been ratified!!!!! hahahaha….a canadian border goon told me it was illegal for me to be in possession of an american car (i was driving my gfs car) and yet another one told me it was illegal for me to be crossing the border with a car rental. all of which i have been dealing with for the past 11 years so i knew enough about my rights and obligations to shoot them down without too much trouble.

    the following was handed to me by a montana border goon on december 16, 2011:

    “All of the items listed below may not be asked for when applying for the above benefit, however; you bear the burden of proving that you qualify. You should bring as much supporting documentation as possible.
    1.) Long form birth certificate listing parents.
    2.) Blood quantum letter from tribe stating you possess at least 50% Native American Blood. (The only acceptable documentation will be based on United States recognized tribes/bands of the U.S. and Canada).
    a.) Letter must indicate the blood quantum of each parent.
    3.) Your certificate of indian status card. Note” This card alone is not sufficient to show 50% blood quantum.
    4.) A photo ID
    5.) If you are Haudenosaunee, your red ID card.
    6.) If you are Inuit, an Inuit Enrollment Card
    7.) Two (2) passport photos meeting the following requirements:
    a.) identical
    b.) in color
    c.) 2 x 2 inches in overall size
    d.) full face, front view with a plain white or off-white background Face measurement MUST be between 1 inch and 1 and 3/8 inches from the bottom of the chin to the top of the head.”

    keep in mind that the piece of paper they gave me that i am quoting above is just a plain black and white printout bearing no official logos or emblems or policy numbers or statute numbers or anything to indicate it is an official, legal document that has passed through the normal, legal channels to become a legal enforceable policy……..as far as jay treaty goes, the vast majority of border patrol are ignorant of its existence let alone the case law & precedents that it has already established through legal testing, specifically in the matter of yellowquill which established case law that clarified the limits of deportation action against jay treaty natives.
    good site: http://www.bc.edu/bc_org/avp/law/lwsch/journals/bciclr/24_2/04_TXT.htm

  11. honey_brown@hotmail.com December 11, 2012 / 12:12 pm

    What about Canadian status Indians with a US criminal record? Can you still cross

  12. Casey November 15, 2015 / 10:06 pm

    What about the other way around? I am a Tribal Member of the Confederated Tribes of the Colville Reservation in Washington State. I’d like to work, and live in Canada if I so choose. Can I obtain dual citizenship? Is that possible?

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