* Bryan Nickels is a Notes & Comments Editor for the Boston College International and Comparative Law Review.
1 Treaty of Amity, Commerce, and Navigation, Between His Britannick Majesty;—and the United States of America, By Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-U.K., T.S. No. 105 [hereinafter Jay Treaty].
2 Id. art. 3; for the language of the treaty, see infra note 20 and accompanying text.
3 Jay Treaty, supra note 1, art. 3. Article 3 of the Jay Treaty also allows Indians to transport “their own proper goods” without imposition of U.S. or Canadian duties. See id.
4 Compare infra notes 31–95 and accompanying text (U.S. treatment) with infra notes 110–159 and accompanying text (Canadian treatment).
5 Section 289 of the Immigration and Naturalization Act (INA) is codified at 8 U.S.C. § 1359 (1999). The current version of this law is little-changed from its original wording in U.S. law. United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 661 (W.D.N.Y. 1947) (citing the original language of 8 U.S.C. § 226a: “This chapter shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States; Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption”).
6 See infra notes 31–95 and accompanying text. These cases represent almost the entire body of U.S. legal treatment of Section 289. See id.
7 See infra notes 31–95 and accompanying text; see also Akins v. Saxbe, 380 F. Supp. 1210, 1220–21 (D. Maine, 1974).
8 8 C.F.R. § 289.2 (1999).
9 Regina v. Vincent, 11 T.T.R. 210 (Ont. Ct. App. 1993), available at 1993 TTR LEXIS 7, at *24.
10 See infra notes 110–159 and accompanying text.
11 National Minister of Revenue v. Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *9 (Fed. Ct. App. 1998).
12 Id.; Watt v. Liebelt, 65 C.R.R.2d 191 (Fed. Ct. App. 1998), available at 1998 CRR LEXIS 458, at *26–27; Vincent, 1993 T.T.R. LEXIS 7, at *30.
13 See infra notes 31–95 and accompanying text.
14 Matter of Yellowquill, 16 I. & N. Dec. 576, 576–77 (BIA 1978).
15 Liebelt, 1998 CRR LEXIS 458, at *26–27.
16 Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *22.
17 Sharon O’Brien, The Medicine Line: A Border Dividing Tribal Sovereignty, Economies and Families, 53 Fordham L. Rev. 315, 323 (1984).
18 It is important to note that the consensus of U.S. and Canadian courts is that the Jay Treaty is not currently in effect. Karnuth v. United States ex rel. Albro, 279 U.S. 231, 237 (1929) [hereinafter Albro] (held that the Jay Treaty was abrogated by the War of 1812); Francis v. The Queen, 4 D.L.R. 760 (Ct. Ex. 1954), available at 1954 DLR LEXIS 767, at *12–17 [hereinafter Francis I], affirmed by Francis v. The Queen, 3 D.L.R.2d 641, 642 (Sup. Ct. Can. 1956), available at 1956 DLR LEXIS 1735 [hereinafter Francis II] (held the Jay Treaty, as a non-self-executing treaty, was never put into effect by permanent legislation). Thus, no “Jay Treaty free passage right” actually exists. See id. However, for the purpose of this Note, this right, as initially recognized by the Jay Treaty, will be referred to as the “Jay Treaty free passage right” even though the actual right survives only in U.S. statute and Canadian common law. See infra notes 31–95, 110–159 and accompanying text.
19 McCandless v. United States ex rel. Diablo, 25 F.2d 71, 71–72 (3d Cir. 1928) [hereinafter Diablo II].
20 Jay Treaty, supra note 1, art. 3.
21 Explanatory Article of the Third Article of the Jay Treaty, May 4, 1796, U.S.-U.K., 8 Stat. 130, T.S. No. 106 [hereinafter Explanatory Article].
22 O’Brien, supra note 17, at 319.
23 Treaty of Peace and Amity, art. 9, Dec. 24, 1814, U.S.-U.K., T.S. No. 109 [hereinafter Treaty of Ghent].
24 See Matter of Yellowquill, 16 I. & N. Dec. at 578.
25 See Stephen H. Legomsky, Immigration and Refugee Law and Policy 19–21 (1997).
26 Megan S. Austin, A Culture Divided by the United States-Mexico Border: The Tohono O’Odham Claim for Border Crossing Rights, 8 Ariz. J. of Int’l & Comp. L. 97, 103 (1991).
27 O’Brien, supra note 17, at 326.
28 United States ex rel. Diablo v. McCandless, 18 F.2d 282 (E.D. Penn., 1927) [hereinafter Diablo I].
29 Francis I, 1954 DLR LEXIS 767, at *3 (noting that “[t]his is a test case”).
30 Albro, 279 U.S. at 242. However, it should be noted that the Albro opinion, significant in that it is the only Supreme Court opinion addressing free passage under the Jay Treaty, does not discuss the Indian free passage right, as neither respondent in the case was an “American Indian born in Canada,” but rather a Scot and an Italian. Id. at 233–34. Although the Albro Court rejected the interpretation of “permanent” in the Jay Treaty as meaning “perpetual,” at least one court has ventured the argument that the Indians’ rights under the Jay Treaty (specifically, the Six Nations) were not abrogated by the War of 1812 because the Indians remained neutral throughout the affair. Thus, war-induced abrogation of the Jay Treaty only affected the rights of Canadians and Americans. Diablo II, 25 F.2d at 72; see Albro, 279 U.S. at 242.
31 Diablo I, 18 F.2d 282.
32 Id. at 283.
33 Id.
34 Id.
35 Id.
36 Diablo I, 18 F.2d at 283.
37 Id.
38 Id.
39 Diablo II, 25 F.2d at 72.
40 Id. at 73. The Third Circuit still holds this opinion. Lazore v. Commissioner, 11 F.3d 1180, 1186 (3rd Cir. 1993).
41 United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 660 (W.D. N.Y. 1947). The holding of Goodwin, that a Canadian Indian woman did not lose her status as an Indian for purposes of the Jay Treaty simply by marrying a white man, was the basis for the subsequent BIA decision of In the Matter of B—-, 3 I. & N. Dec. 191, 192 (BIA 1948).
42 See Goodwin, 74 F. Supp. at 661.
43 Id. at 660.
44 Id. at 663.
45 Id. at 661–62.
46 Id. at 662–63.
47 Goodwin, 74 F. Supp. at 663.
48 Id.
49 Jay Treaty, supra note 1, art. 3. While much scholarly debate ensues about whether the Jay Treaty was fully abrogated by the War of 1812, and whether the Treaty of Ghent restored the original Jay Treaty provisions, courts have generally treated the passage of goods section as abrogated. Id.; see Albro, 279 U.S. at 239.
50 Saxbe, 380 F. Supp. at 1212.
51 Id.
52 Id. at 1218.
53 Id. at 1218–21.
54 Id. at 1219. These requirements include registration, fingerprinting, and notification of address and address changes; the statute made it a criminal offense for failure to comply. Id. at 1214 nn.1-2.
55 Akins v. Saxbe, 380 F. Supp. 1210, 1219 (D. Maine, 1974).
56 Id. at 1220–21. It must be noted that the court was apparently in error in enunciating that the canon asserting construction of treaties in favor of how Indians at the time would have understood the treaty also is applicable to the construction of statutes relating to Indians. Id. at 1221. The premise of this canon rests on the superior bargaining power of the U.S. over negotiating tribes, as well as the United States’ advantage in usage of treaty language; as statutes are not bilateral transactions, extension of this canon seems illogical. Felix S. Cohen, Handbook of Federal Indian Law 222 nn.42–43, 224 n.60 and accompanying text (Rennard Strickland ed., Michie: Bobbs-Merrill ed. 1982) (1942).
57 Saxbe, 380 F. Supp. at 1219.
58 In the Matter of S—, 1 I. & N. Dec. 309 (BIA 1942).
59 Id. at 310. Specifically, the Canadian statute in question established Indian status recognition to: “(i) Any male person of Indian blood reputed to belong to a particular band; (ii) Any child of such person; (iii) Any woman who is or was lawfully married to such person.” Id.
60 Id. at 310–11.
61 Id. at 312.
62 Id.
63 Id. As previously mentioned, the BIA, just a few short years later, reversed this position, and made the determination that a Canadian Indian woman in such a position would not surrender her passage rights, as she was still ethnologically an Indian. See Matter of B–, 3 I. & N. Dec. at 192.
64 It is important to note, however, that this anomalous result has since been rectified in the C.F.R.:
[t]he term “American Indian born in Canada” as used in section 289 of the Act includes only persons possessing 50 per centum or more of the blood of the American Indian race. It does not include a person who is the spouse or child or such an Indian or a person whose membership in an Indian tribe or family is created by adoption, unless such person possesses at least 50 per centum or more of such blood.
8 C.F.R. § 289.1. While the C.F.R. has specifically enumerated which family members are not entitled to Section 289 rights, it is significant to note that the U.S. INA has a somewhat broader definition of “child,” more closely resembling the Revised Statutes of Canada [hereinafter R.S.C.] section than the C.F.R. INA § 101(b)(1).
65 See Matter of S—, 3 I. & N. Dec. at 312.
66 See id.
67 See Cohen, supra note 56, at 19–27.
68 In the Matter of A—, 1 I. & N. 600, 604 (BIA 1943).
69 See id. at 603.
70 Id.
71 Id.
72 Id.
73 Matter of A—, 1 I. & N. Dec. at 604–05.
74 Id. at 605.
75 Matter of Yellowquill, 16 I. & N. Dec. at 577.
76 See Matter of B—, 3 I. & N. Dec. 191.
77 Id. at 192.
78 Id. at 191.
79 Id. at 191–92.
80 Id. at 192.
81 Matter of B—, 3 I.&.N. Dec. at 191.
82 Id. at 192.
83 Id.; see United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 663 (W.D.N.Y. 1947).
84 Matter of B—-, 3 I. & N. Dec. at 192.
85 See id. at 191–92.
86 Id. at 192.
87 In the Matter of D—, 3 I. & N. Dec. 300, 301 (BIA 1948).
88 Id.
89 Id. at 303.
90 Id. (while further noting that “even though such action will not have the effect of preventing such a person from recrossing into the United States”).
91 Id.
92 Matter of Yellowquill, 16 I. & N. Dec. at 576.
93 Id. at 578.
94 Id.
95 See id.
96 See Cohen, supra note 56, at 19–27. Also complicating matters is the unique status of classifications held by Pueblo Indians, Alaskan natives, and native Hawaiians. Id. at 739 et seq.
97 For example, the Cherokee Nation of Oklahoma, which includes Cherokees, Delawares, and Shawnees. Id. at 6.
98 Such as Pacific coast tribes, as discussed in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Id. at 6 n.22.
99 Most notably, the Sioux, who were divided into seven different groups by Congress. Id. at 6 n.25.
100 Id. at 6–7.
101 See Cohen, supra note 56, at 19.
102 Id. Similarly, an individual holding 25% Indian blood and 75% Caucasian blood, while being ethnologically Caucasian, might be recognized as an “Indian” for some federal necessities. Id.
103 Id. at 19–20 n.4. However, Congress has also recognized tribes that have migrated into the United States. 25 U.S.C. § 495 (establishing a reservation for the in-migrating Metlakatla Indians).
104 Cohen, supra note 56, at 20–21.
105 Id. at 23–27.
106 Id. at 24. Sometimes this has required tribes to establish tribal membership rolls: exclusion from the rolls means exclusion from federal recognition. Id. at 25.
107 R.S.C. 1985, c. I-5, s. 5–17.
108 See 8 U.S.C. § 1359; 8 C.F.R. 289.1 et seq.
109 See Matter of S—, 1 I.&.N. Dec. at 312; but see 8 C.F.R. 289.1 (eliminating granting of free passage rights for persons not meeting blood quantum requirement). Although marriage and adoption loopholes have been closed, the exact definition of “American Indian” remains undefined, apparently still deferred to the Canadian government. 8 C.F.R. 289.1. But see United States v. Curnew, 788 F.2d 1335, 1339 (8th Cir. 1986) (allowing cultural anthropologist to testify as expert regarding presence of American Indian blood in person claiming Jay Treaty rights). For example, U.S. regulations apparently would permit the free passage right being granted to a Mayan adopted by a Mohawk family. Id.
110 Francis I, 1954 DLR LEXIS 767 at *17; see Kerry Wilkins, “Still Crazy After All These Years”: Section 88 of the Indian Act at Fifty, 38 Alberta L. Rev. 458, 473–74 (2000).
111 R.S.C. 1985, c. I-2, s. 4(3).
112 See id.
113 Id.
114 R.S.C. 1985, c. I-2, s. 4.
115 See id. at s. 4(3).
116 See Francis I, 1954 DLR LEXIS 767 at *42.
117 See infra notes 118–159 and accompanying text. However, Canadian courts have cushioned this, as demonstrated in Liebelt: “This does not mean, of course, that proper control of the border may not be a justification for Canada to control or limit in some way the exercise of relevant and unextinguished Aboriginal rights.” 1998 CRR LEXIS 458, at *25.
118 Regina v. Vincent, 11 T.T.R. 210 (Ont. Ct. App. 1993), available at 1993 TTR LEXIS 7, at *13-32.
119 Id. at *6–7.
120 Id. at *11.
121 Id.
122 Id.
123 See Vincent, 1993 TTR LEXIS 7, at *11.
124 Id. at *24–25.
125 Id. at *23–24.
126 Id. at *24.
127 Id. at *26–30. Note that this principle, as relating to the Jay Treaty, was also enunciated in the Francis I decision. 4 D.L.R. LEXIS 767, at *12–13.
128 Vincent, 1993 TTR LEXIS 7, at *25–30.
129 See Minister of National Revenue v. Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *22 (Fed. Ct. App. 1998).
130 Id. at *14–15.
131 Id. at *17.
132 Id. at *17–18.
133 Id. at *19.
134 Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *20.
135 Id. at *20.
136 Id. at *22.
137 Id.
138 Id. at *23.
139 See Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *24.
140 Watt v. Liebelt, 65 C.R.R.2d 191 (Fed. Ct. App. 1998), available at 1998 CRR LEXIS 458.
141 As previously noted, the Colville tribe is known in Canada as the Okanogan; this group is bisected by the U.S.-Canadian border. See supra note 17 and accompanying text.
142 Liebelt, 1998 CRR LEXIS 458, at *9.
143 Id. at *9–10; see Matter of Yellowquill, 16 I. & N. Dec. at 576 (for a somewhat factually analogous U.S. case involving possession of heroin).
144 Liebelt, 1998 CRR LEXIS 458, at *10–11.
145 Id. at *18.
146 Id. at *19–20.
147 Id. at *20.
148 Id. at *20–21.
149 Liebelt, 1998 CRR LEXIS 458, at *23.
150 Id. at *25–27.
151 Compare id. with 8 U.S.C. § 1359; note, additionally, that state courts have generally given a lot of deference to the free passage right and related federal rulings. See, e.g., State v. Daniels, 16 P.3d 650, 281 (Wash. App. 2001) (holding that Jay Treaty rights creates a means for Canadian Indians to claim federal Indian status for purposes of establishing criminal court jurisdiction); In re Linda J.W., 179 Misc. 2d 96 (N.Y. Fam. Ct. 1998) (in determining right of Canadian Indian to adoption information under the Indian Child Welfare Act, “The border which separates Canada from the United States . . . has been subsequently adopted and ratified by the United States and Canada. The existence of this border has no effect on the community of the Six Nations . . . . This continuity of the Six Nations community is recognized by the United States and Canada in the right of free and uninhibited passage of people and goods across the United States/Canada border which is granted to the Six Nations under the Jay Treaty.”).
152 Compare Liebelt, 1988 CRR LEXIS 458, at *23, with 8 U.S.C. § 1359.
153 See 8 C.F.R. § 289.1 et seq.
154 Frequently Asked Questions About Aboriginal Peoples, at http://www.ainc-inac.gc.ca/ pr/info/info116_e.html (last visited Apr. 25, 2001).
155 R.S.C. 1985, c. I-5, s. 5(1).
156 Id. at s. 6–1(b).
157 Id. at s. 10(1).
158 The number of registered Indians listed in the Indian Register in Canada stood at 511,791 as of December 31, 1991. 1991 Census Highlights on Registered Indians, at ix (Oct. 1995), available at http://www.ainc-inac.gc.ca/pr/sfs/cen/erihl_e.pdf [hereinafter Census Highlights]. This number is projected to exceed 790,000 by 2008. Population Projections of Registered Indians—1998–2008 (Dec. 2000), available at http://www.ainc-inac.gc.ca/nr/ nwltr/sfs/ffs_e.html. Of course, every single one of these registered Indians is entitled, under U.S. law, to the equivalent of Lawful Permanent Resident status by simply showing a status card at the U.S. border. 8 C.F.R. § 289.2.
159 General Information, supra note 154. The number of registered Indians in Canada actually only comprises 38% of the aboriginal population, as the Inuit and Métis groups (as well as Indians who simply did not register) are not included for registration purposes. Census Highlights, supra note 158, at 3. The actual number of persons with Aboriginal origins in 1991 totaled some 1,016,340 (approximately 6% of the Canadian population), all of whom could be eligible for Section 289 benefits provided they met their burden of proof at the border. Id. Of course, as Canadian law doesn’t establish any per centum blood requirements, it is unclear what percentage of these would actually meet the U.S. 50% blood quantum requirement. See R.S.C. 1985, c. I-5, s. 5–17; 8 U.S.C. § 1359.
160 Diablo I, 18 F.2d 282.
161 Diablo II, 25 F.2d at 71.
162 See generally Cohen, supra note 56, at 152–80. Following the end of WWII, Congress decided that several tribes needed “termination” to further the goal of assimilation, resulting in the complete dissolution of a reservation, revocation of federal recognition of both the tribe and membership therein, and denial of all benefits associated with federal status—in 1954 alone, Congress terminated some sixty-seven tribes. Id. at 173–74. The Johnson and Nixon administrations aided in reversing this trend, and Congress later restored some of these tribes’ status. Id. at 184–87.
163 Id. at 144–52.
164 Id.
165 See, e.g., Worcester v. Georgia, 31 U.S. 515, 561 (1832) (“The Cherokee nation, then, is a distinct community, occupying its own territory . . . .”); Montana v. United States, 450 U.S. 544, 566 (1981) (“A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.”).
166 See Albro, 279 U.S. at 242.
167 Francis I, 1954 D.L.R. LEXIS 767.
168 Watt v. Liebelt, 65 C.R.R.2d 191 (Fed. Ct. App. 1998), available at 1998 CRR LEXIS 458, at *21–22.
169 Regina v. Vincent, 11 T.T.R. 210 (Ont. Ct. App. 1993), available at 1993 TTR LEXIS 7, at *23-24.
170 Liebelt, 1998 CRR LEXIS 458, at *25–27.
171 Diana Alexander, A Reconstruction of Prehistoric Land Use in the Mid-Fraser River Area Based on Ethnographic Data, in A Complex Culture of the British Columbia Plateau 99, 101 (1992) (noting that “the record of [Lillooet and Shuswap] traditional subsistence and settlement patterns remains incomplete;” and that “until recently, very little was known about traditional native use of alpine environments”).
172 25 U.S.C. § 1300b–11 (passed Jan. 8, 1983, Pub. L. No. 97–429, sec. 2, 96 Stat. 2269) (1999) (recognizing the U.S. role in forcing the Kickapoo “to migrate from its ancestral lands”).
173 Austin, supra note 26, at 107–09.
174 Id. at 108.
175 25 U.S.C. § 1300b–11; see 25 U.S.C. § 1300b–16(b) (regarding “cooperation with [the] Mexican government”).
176 25 U.S.C. § 1300b–13(d).
177 25 U.S.C. § 1300b–13c (“Citizenship for applicants. For a period of five years after the publication of the Federal Register notice . . .  any member of the Band whose name appears on the roll . . . may . . . apply for United States citizenship”); see 25 U.S.C. 1300b–13(b); 8 C.F.R. § 289.2.
178 Austin, supra note 26, at 101.
179 See O’Brien, supra note 17, at 315.
180 See Austin, supra note 26, at 116.
181 Compare 8 U.S.C. § 1359 with Watt v. Liebelt, 65 C.R.R.2d 191 (Fed. Ct. App. 1998), available at 1998 CRR LEXIS 458, at *25–27.
182 8 U.S.C. § 1359.
183 Akins v. Saxbe, 380 F. Supp. 1210, 1220–21 (D. Maine, 1974).
184 Matter of Yellowquill, 16 I. & N. Dec. at 578.
185 Regina v. White & Bob, 50 D.L.R. 2d 613, available at 1964 DLR LEXIS 2235, at *80 (B.C. Ct. App. 1964).
This is particularly important in the case of Indians, who are inclined to rove, a fact which has been accepted by the United States and Canada with reference to the movements of Indians to and fro across the International Boundary. A provision to this effect was included in the Jay Treaty of 1794 between Great Britain and the United States and confirmed by the Treaty of Ghent in 1814.
Id.
186 Liebelt, 1998 CRR LEXIS 458, at *25–27.
187 Minister of National Revenue v. Mitchell, 1998 Fed. Ct. Appeal LEXIS 345, at *17 (Fed. Ct. App. 1998).
188 Albro, 279 U.S at 237 (held that “treaties of amity, of alliance, and the like, having a political character . . . are generally regarded as belonging to the class of treaty stipulations that are absolutely annulled by war.”). The Canadian Supreme Court has refused to rule on the issue of abrogation, as no enacting legislation exists. Francis II, 1956 DLR LEXIS 1735, at *7 (held that “it is unnecessary to consider the question whether the terms of the Jay Treaty were abrogated by the war of 1812”).
189 See Jay Treaty, supra note 1.
190 Regina v. Vincent, 11 T.T.R. 210 (Ont. Ct. App. 1993), available at 1993 TTR LEXIS 7, at *20-21.
191 Id.
192 Cohen, supra note 56, at 107.
193 8 U.S.C. § 1359.
194 See id.; 8 C.F.R. §§ 289.1 et seq.
195 See Watt v. Liebelt, 65 C.R.R.2d 191 (Fed. Ct. App. 1998), available at 1998 CRR LEXIS 458, at *25–27. However, at least one court in Canada has attempted to add some degree of flexibility to the “nexus” test—although requiring that the identified practice, custom, or tradition preexist European contact, the court did state that: “This concept gives rise to the proposition that aboriginal rights must be interpreted flexibly so as to permit their evolution over time. A modern exercise of a pre-contact practice custom or tradition should be recognized. This results in the avoidance of a ‘frozen rights’ approach.” Regina v. Frank, 1999 Alt. D. Crim. J. LEXIS 216, *17 (Alt. Prov. Ct. 1999).
196 Cohen, supra note 56, at 283 (“These rules [of construction] require that congressional intent to override particular Indian rights be clear.”).
197 Liebelt, 1998 CRR LEXIS 458, at *20.
198 For general discussion of NAFTA and immigration, see generally Legomsky, supra note 25, at 216–17, 249.
199 Indeed, at least one author of an immigration law text has found the topic of nonimmigrant provisions within NAFTA too expansive for any inclusion beyond passing discussion. Id. at 249.
200 Id. at 216.
201 8 U.S.C. § 1359; 8 C.F.R. § 289.2.
202 See 8 C.F.R. § 289.2; Legomsky, supra note 25, at 216.
203 See 8 C.F.R. § 289.2 (creating lawful permanent resident rights for American Indians born in Canada); see also 22 C.F.R. § 42.1(f) (“An immigrant within any of the following categories is not required to obtain an immigrant visa . . . (f) American Indians born in Canada. An American Indian born in Canada and having at least 50 per centum of blood of the American Indian race”).