Canadian Indian

Paul Spruhan on the Canadian Indian Free Passage Right

Matthew L.M. Fletcher

Paul Spruhan, a law clerk for the Navajo Nation Supreme Court, has posed “The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law,” forthcoming in the North Dakota Law Review. Here is the abstract:

The paper discusses the little-known provision of the Immigration and Nationality Act that allows Canadian Indians to cross the United States-Canada border free of visa and other immigration requirements. Noting that the provision restricts the right to persons of 50% or more “blood of the American Indian race,” the paper traces its origin in a 1928 statute that did not include the blood quantum requirement, the interpretation of the term “Indian” as used in the 1928 statute by the Immigration and Naturalization Service, and the reasons for the 1952 amendment that added blood quantum. The paper then discusses the constitutionality of the provision in light of the current approach of the United States Supreme Court to racial provisions in federal Indian law and immigration law.

Jay Treaty-Related Immigration Case News Coverage

Matthew L.M. Fletcher12 Comments

From CFTK TV:

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.

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The Jay Treaty in U.S. Immigration Court

Matthew L.M. Fletcher3 Comments

From the Seattle Times:

Immigration case hinges on degree of Indian blood

BLAINE, Whatcom County — A government attorney told an immigration judge on Friday that a native Canadian man claiming indigenous treaty rights to the U.S. lacks sufficient Indian blood to qualify for those rights.

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Metis Hunting Rights in Sault Ste. Marie, Canada

Matthew L.M. Fletcher

Interesting treaty rights case based on a decision out of the Canadian Supreme Court involving the taking of a moose near Sault Ste. Marie, ONT by a non-status Metis hunter. Here’s the decision in R. v. Powley, the Sault Ste. Marie case.

http://www.cbc.ca/canada/manitoba/story/2007/11/15/metis-hunting.html

Closing arguments heard in Métis hunting case

Last Updated: Thursday, November 15, 2007 | 3:52 PM CT

CBC News

A court in Brandon, Man., heard closing arguments Thursday in a precedent-setting trial over Métis hunting rights.

Will Goodon was charged in 2004 after he shot a duck without a provincial hunting licence. He did possess a Métis “harvester” card, issued by the Manitoba Métis Federation, but the province has refused to recognize those cards.

Goodon pleaded not guilty to the charge, arguing hunting is his birthright.

Goodon’s defence argued Wednesday that the government has washed its hands of establishing aboriginal rights, and so it is up to the courts to interpret the rights of Métis people.

The defence said Métis hunting rights have already been established by a 2003 Supreme Court ruling known as the Powley decision, which granted full-status-Indian hunting rights — the right to hunt and fish for food out of season and without a provincial licence — to Métis who can prove a connection to a stable, continuous community.