US Travel and Indian Status
I receive a considerable number of calls from people who have status under the Indian Act wondering about what this means in terms of US entry privileges. The simple answer is that holding a Status Card does NOT entitle you to cross the border if you are otherwise inadmissible.
I think the confusion lies in that a Status Card used to be accepted as a valid travel document (just as a driver’s license used to be all you needed to cross the border). Some Ports of Entry will still accept a Status Card but as of 2011 no exceptions will be made and you will need to present a Secure Certificate of Indian Status in order to be allowed into the US. A Secure Certificate of Indian Status replaces a passport but just as a passport would not give me the right to cross the border if I had a criminal record, a US border guard will still refuse you entry if you only present a SCIS and you have a history of criminal convictions.
That being said, the Jay Treaty of 1794 does acknowledge certain travel rights for First Peoples. Essentially, you must be able to satisfy a 50% blood quantum requirement in order to be entitled to cross the border regardless of your criminal history. You should present an official letter from your First Nation or Band or Tribe detailing your ancestry so that the admitting customs officer can determine that you have at least 50% indigenous blood. If you can provide that letter, then you should be able to travel across the border without any trouble, even if you have a serious criminal record. If you cannot obtain such a letter (or if you have less than 50% indigenous blood) then you have no choice but to apply for an Entry Waiver if you wish to cross the border.
Please feel free to contact me personally if you have specific questions about your case.
Hi Jerrod,
If your brother has received a Secure Certificate of Indian Status then it does serve to replace a passport. If it is not the secure card, then it is not a valid travel document.
Please contact INAC for further information: http://www.ainc-inac.gc.ca/index-eng.asp
Birgit
Was stopped at the us border and was told I had a conviction and would have to complete a waiver. About 38 years ago I had a small shop-lifting incident for which I had a conditional discharge. I am 50% Native Indian and have a letter from my band. I did not know the law when I was crossing pertaining to Natives being able to cross even with a record (which I don’t really have in Canada but apparently do in the US.) Now I don’t know what to do because apparently in the US, they don’t change their database and I’m afraid of being stopped again. How do I clear this so that I can travel freely? Do I have to go back to the same crossing to explain my situation? Help!
Hi Molly,
If you show up at ANY border crossing with your letter then you should be allowed to cross into the USA despite the fact that you have been refused entry in the past.
Birgit
I too did not know about the option of crossing with a status card and letter and was refused entry back in June. However, I just came back from a US trip and when I showed my card and letter, they noted they refused me earlier and apologized (that’s a first I’m sure!) and let me through no problem! I was also assured that whatever info they had on file would be deleted so I would not go through that again.
Hi Charleen,
GREAT! Glad to hear that you had no problems and that they apologized for refusing you earlier!
Enjoy your travels!
Birgit
Can you still enter the US if you are on probation or parole? and how does the jay treaty stand up against that? I am on parole and am allowed to travel as long as it is approved. The parole officer told me that i cannot enter the US, however i thought i could via the Jay treaty. any thoughts?
Hi Jason,
Did you parole officer say that you can not travel to the US in particular or just that you can not leave the country? He or she may not be familiar with the provisions of the Jay Treaty but it could also be that you are not approved for travel to the US due to a condition of your parole. You should speak with your parole officer to confirm but you should abide by any rules that he or she establishes for you!
Birgit
She said i could not go to the US because of my record and parole status, however she was not aware of the JAY TREATY which allows me to live and work freely in both countries. On one hand i could just go and the US would have to let me in, however i want to do things properly as that is whats best for my family and I. If i could show proof that i can travel to the US utilizing treaty rights than she would approve it. So any information that would support this would be great.
Hi Jason,
I would be happy to speak with your parole officer regarding the provisions of the Jay Treaty. Please feel free to pass on my contact information to her!
Birgit Davidson
403-698-8800 x 106
bdavidson@nationalpardon.org
if i am a canadian and just got my indian status card does this mean i have duel citizen ship and can i move to the u.s.??
Hi Jesse,
You should speak with someone who specializes in immigration questions for an up-to-date answer to your question! I deal only with issues linked to criminality. I suggest you try INAC.
Birgit
Ok, so i still don’t understand. Can a Canadian criminal record or parole/probation status extinguish the jay treaty right given to american indians born in canada by the US?
yes/no
Hi Jason,
A criminal conviction does NOT extinguish the rights recognized by the Jay treaty but a probation order may temporarily override them (if a person is bound by a probation order preventing them from leaving the country, for instance).
I have not seen the provisions of the order that you are currently bound by and so am unable to answer specific questions regarding your case. I suggest you speak with your probation/ parole officer or you can ask him or her to check out the INAC website… it contains information regarding travel rights. He ro she will be in a betetr position to explain what you can and cannot given your individual circumstances.
Birgit
The questions and the answers i am seeking are in general and apply to every status indian that is on parole or probation. All will have a stipulation to remain in their designated parole areas. With permission to leave their district by their parole officer…would the US deny their entry because their status would show their on some type of release? AND can the US deny their entry based on probation/parole status (even with a letter from the PO) and if so wouldn’t that be infringing on the treaty right?
Hi Jason,
To begin, I am not a lawyer and suggest that you speak with one for accurate answers to your questions.
That being said, section 289 of the Immigration and Nationality Act (which governs admission to the USA) states: “Sec. 289. [8 U.S.C. 1359] Nothing in this title shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.” To me, this reads that the US will not refuse you entry even if you are on parole.
My understanding is that INAC can revoke a SCIS (just as CIC can revoke a passport) if you are bound by a court order that prevents you from leaving the country. If you do not have a valid travel document, then the US would refuse you entry.
If you still have a valid travel document, and if you have permission from your parole officer, then I do not think there is anythign preventing you from entering the USA.
Again, I STRONGLY suggest you speak with a lawyer as I am not qualified to give legal advice of this sort.
Birgit
Hi i am well aware of the jay treaty i am haudenosunee status and have not had any problems crossing into the u.s however I lived there for a couple years and had a child, finished school and moved home. my daughters father is an enrolled 100% north american indian from the u.s and we have a court agreement for him to travel to canada to see his daughter. he has had a past criminal record and even came to canada and went back to the u.s no problems with his tribal card and birth certificate…now however with the assumption he could travel into canada FOR THE HOLIDAYS (with no changes or additions to his criminal record) he was refused entry.
while we waited for hours after he traveled a good 12 hours to be with his family, only to be told it was because of his criminal background and then border patrol switched their story to him needing to provide proof of being the father and then ANOTHER excuse was that he needed immigrational temporary residence which would cost him 200$ because (they stated) he is not north american indian… should i continue the temporary residence approach?
Hi Amanda,
The US and Canada have different rules regarding admissbility and I want to clarify that my area of expertise is entry to the US. My understanding is that if your daughter’s father has claim to status under the Canadian Indian Act then he would be entitled to re-enter Canada but you should speak with Canada Border Services Agency and/or INAC for clarification. It may be that your daughter’s father does not have any claim under the Indian Act and that you would have to proceed with the TRP (http://www.cic.gc.ca/english/visit/faq-inadmissibility.asp)
Birgit
i have a question about air travel, my husband and i want to travel to south america and he is full blooded Ojibway with a criminal record. We have traveled to Europe and never had a problem, but the flight to South America has a stop over in the states. Will he be able to take this flight without problems if we bring the recommended papers?
Hi Georgia,
As long as he brings the documents I mention in my post, he should have no problem landing in the US.
Birgit
Hi Birgit,
The Secure Certificate has not been rolled out in full yet and in fact they have halted the production it seems. Only a couple provinces in Canada have them and there is no informtation on when they will replace them across the rest of the country. Driving across the border has been fine as I have my status card and letter from my reserve. I’m wondering about flying. With no timeline in sight for this new secure card, if you have been denied once at a border crossing, will this cause a problem with flying?
Hi Charleen,
I wasn’t aware of any delays with the Secure Certificate. Thanks for letting m eknow about that.
If you have a passport (and as long as you are sure to travel with the letter from your reserve attesting that you meet the blood quantum requirement), then you should have no trouble flying. Airport CBP officers are governed by the same rules as those at land crossings.
Birgit
hi..my husband has a criminal record from 10 years ago..he has not received any pardons..in the summer we attempted entry into the states by land and we were let through no problem..we only showed are canadian passports…more recently we went through the same border with our kids and he was questioned about his criminal record..he told the officers that he was charged but not convicted and they let thim through..they did however say that he would need a waiver if he attempted to cross again…i was researching on how to obtain the waiver when i came across your site…my husband is a status indian…he has his treaty card and number…i read earlier in the posts that this might not be enough to get entry under the jay treaty…with that being said i asked him to contact his band to request the above mentioned letter…they seemed confused and said that they would send a letter saying he was from that reserve..i don’t think they will put anything about blood %…is there a standard form or letter that can be used…my husband is 50% …..please help..we have a trip booked for the end of the month..thanks
Hi JJ,
Unfortunately, I do not know of any form letter that can be used. The letter WILL have to attest to his bloodlines though so he may need to speak with them again and ask that they issue a second document.
Good luck!