Jay Treaty

Ninth Circuit Affirms Conviction of Fake Indians for Immigration Violations

Matthew L.M. Fletcher

Here is the Ninth Circuit’s unpublished opinion in United States v. Stowbunenko-Saitschenko. Here is a summary of the case from the opinion:

Oleh Rostylaw Stowbunenko-Saitschenko (“Stowbunenko”) appeals his conviction and sentence for Bringing in Illegal Aliens to the United States … and his conviction for Encouraging Illegal Aliens to Enter the United States …. These convictions resulted from an incident in which Stowbunenko, a naturalized American citizen who claims to be a member of an Indian tribe known as the Little Shell Pembina Band of North America (“PNLSB”), issued certificates of PNLSB membership to two Mexican nationals and then attempted to cross the border from Mexico to the United States with the Mexican nationals. At Stowbunenko’s urging, the Mexican nationals tried to use their tribal membership documents to secure entry to the United States. Stowbunenko was convicted of the above counts following a jury trial and sentenced principally to time served.

Here are the briefs in which the appellant’s make some startling (and frivolous) Jay Treaty and Indian law claims:

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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.

Marcia Zug on the Jay Treaty

Matthew L.M. Fletcher3 Comments

Marcia Zug of South Carolina Law School has published “Gone but not Forgotten: The Strange Afterlife of the Jay Treaty’s Indian Free Passage Right” in the Queen’s Law Journal. Here is the abstract:

For members of North American Indian tribes, travelling from one side of their reservation to the other sometimes involves crossing the Canada-United States border. The right of North American Indians to pass that border was originally recognized in the Jay Treaty of 1794. This treaty right, the author maintains, was inconsistent with the state of war which arose between Britain and the U.S. in 1812, and was therefore implicitly abrogated by the War of 1812. As the relevant provision of the treaty was never reinstated, there is now no treaty-based justification for the right of free passage.
For Canadian Indians entering the United States, the author argues, the free passage right continues to exist, but it now stems from a statutory source: the U.S. Act of April 2, 1928, codified in 8 U.S.C. 1359 and commonly known as the “free passage statute.” Judicial recognition that the right is based in statute, and not in the Jay Treaty, is long overdue.
After providing a historical overview of the Indian free passage and duty-free rights, the author argues that confusion in the courts about the source of these rights has had negative consequences for both American and Canadian Indians. They believe, understandably, that the free passage and duty-free rights are grounded in the Jay Treaty and that the Canadian and American governments are unjustifiably refusing to recognize them as treaty rights. Further confusion results from the differing treatment of free passage in each country–confusion that has been compounded by inconsistent court decisions. The author also addresses the differing American and Canadian definitions of “Indian,” and their effect on eligibility for American federal benefits. Finally, the author posits that much confusion could be eliminated, and that Indian interests could be better served, by foregoing any further attempt to ground the free passage right in the Jay Treaty and by recognizing instead that it has a statutory basis.

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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