I am an American Indian Born in Canada. Can I Enter the U.S. Under the Jay Treaty?

In 1794, Great Britain and the United States signed the Jay Treaty. One impact of this treaty was to allow Native Americans to freely travel across the international boundary between the U.S. and Canada. This right has since been codified in the United States Immigration and Nationality Act (INA), Section 289, which states, “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.”

Under the Jay Treaty, American Indians who were born in Canada have the right to freely travel to the United States for multiple purposes that usually require a U.S. visa, including work, immigration, studying in the U.S., making investments and/or retiring in the U.S.

As stated in the INA, in order to qualify for the benefits of the Jay Treaty, the person must have been born in Canada and their background must be at least 50% American Indian. To enter the U.S. under the Jay Treaty, you should go to a U.S. port of entry with supporting documents to show your American Indian background. The supporting documents must establish current or previous membership in a recognized Indian band or tribe for you and all of your direct ancestors (parents and grandparents) from whom you derived American Indian blood.

These documents may include the following:

• An identification card from the Ministry of Indian and Northern Affairs and/or
• A written statement on the official letterhead of your tribe that states the percentage of American Indian blood you possess. It should also include the percentage of American Indian blood your parents possess.
• The written statement should be accompanied by evidence such as tribe records & a birth certificate showing your parents’ names. The birth certificate is important to show your connection to ancestors in the relevant tribe and to establish that you were born in Canada.
• You should also bring photo ID (driver’s license, passport, etc).

Yes, American Indians born in Canada whose background is at least 50% American Indian are eligible to become U.S. legal permanent residents if they plan to reside permanently in the United States. If you are applying at the border, you should bring supporting documentation and notify U.S. Customs and Border Protection that you qualify for this benefit and you plan to enter the U.S. and live there permanently. If you already entered the U.S. under the Jay Treaty and you intend to live in the U.S. permanently, you should make an InfoPass appointment at a local USCIS office and bring the supporting documents listed above, along with two passport photos. If you are a member of a tribe through marriage or adoption, you are not eligible to apply for permanent residence.

Spouses and children are not eligible for derivative status based on your status. If they independently qualify as American Indians with 50% American Indian blood and were born in Canada, they can submit their own application for U.S. permanent residency. If they do not qualify independently, then after you obtain permanent residency you will be able to sponsor them using the family immigration sponsorship process.