Immigration and Nationality Act

New Scholarship on “the Unparalleled Rights Enjoyed by American Indians Born in Canada to Freely Access the United States”

Matthew L.M. Fletcher

The Seattle Journal of Environmental Law has published “Canadian Indians, Inuit, Métis, and Métis: An Exploration of the Unparalleled Rights Enjoyed by American Indians Born in Canada to Freely Access the United States.”

Here is the abstract:

This article expands on an earlier work published in October 2013, jointly by Bender’s Immigration Bulletin and Western Washington University’s Border Policy Research Institute.

Certain American Indians born in Canada enjoy access to the United States unrestricted by the Immigration and Nationality Act, a right stemming from the Jay Treaty of 1794. An examination of this right, reflected by codification as § 289 of the INA, reveals qualifying ABCs are entitled to privileges unparalleled by all but United States citizens to enter and remain in the U.S. “for the purpose of employment, study, retirement, investing, and/or immigration” or any other reason.

New Scholarship on the Jay Treaty Right to Free Access for Indians

Matthew L.M. Fletcher

Greg Boos and Greg McLawsen have posted “American Indians Born in Canada and the Right of Free Access to the United States” on SSRN. Here is the abstract:

Certain American Indians born in Canada enjoy access to the United States unrestricted by the Immigration and Nationality Act, a right stemming from the Jay Treaty of 1794. An examination of this right, reflected by codification as § 289 of the INA, reveals qualifying ABCs are entitled to privileges unparalleled by all but United States citizens to enter and remain in the U.S. “for the purpose of employment, study, retirement, investing, and/or immigration” or any other reason.

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.