Jay Treaty What is it?

Section 289 of the U.S. Immigration and Nationality Act (INA) of 1952 grants specific border crossing rights to “American Indians born in Canada” who have at least 50% Native American blood quantum, allowing them to enter and reside in the United States without a visa for purposes like work, study, or living. This provision is often linked to the Jay Treaty’s Article III (1794), which promised free passage for Native Americans across the U.S.-Canada border, though Section 289 is a modern U.S. law, not a direct enforcement of the treaty.

### Key Details of INA Section 289

- **Eligibility**:

  - Must be born in Canada.

  - Must have at least 50% Native American ancestry, typically verified through tribal enrollment or documentation of blood quantum.

  - Applies to members of tribes recognized by the U.S. or Canada, such as the Mohawk, Ojibwe, Blackfeet, or Haudenosaunee.

- **Rights Granted**:

  - Entry to the U.S. without a visa or immigrant status for purposes like employment, education, or residence.

  - Right to work in the U.S. without additional authorization (often issued an I-94 form at the border to document entry).

- **Limitations**:

  - Does not confer U.S. citizenship or permanent resident status (green card), though individuals can pursue these separately.

  - Does not exempt individuals from U.S. customs duties or taxes on goods brought across the border.

  - Subject to U.S. border security laws, meaning entry can be denied for criminal records, security concerns, or lack of proper documentation.

  - Does not apply to Native Americans born in the U.S. seeking to cross into Canada, as Canada does not recognize equivalent rights under the Jay Treaty or its own laws.

- **Documentation**:

  - Proof of eligibility typically includes:

    - Tribal enrollment card or certificate from a federally recognized tribe or Canadian band.

    - A “blood quantum” letter from a tribal authority confirming at least 50% Native ancestry.

    - Birth certificate or other proof of Canadian birth.

  - A passport or enhanced ID may still be required under the Western Hemisphere Travel Initiative (WHTI), though some border officials accept tribal IDs for Section 289 purposes.

  - U.S. Customs and Border Protection (CBP) may issue an I-94 form or other entry record.

### Practical Application

- **Border Crossing Process**:

  - Eligible individuals present their documentation at a U.S. port of entry (e.g., at the Akwesasne Mohawk territory or other border points).

  - CBP officers verify tribal status and blood quantum, often coordinating with tribal authorities if documents are unclear.

  - Entry is generally straightforward for enrolled members of recognized tribes, but issues arise if documentation is incomplete or if officers are unfamiliar with Section 289.

- **Common Issues**:

  - Inconsistent application by CBP officers, especially at smaller border crossings, due to lack of training on Section 289.

  - Disputes over blood quantum or tribal recognition, particularly for non-federally recognized tribes.

  - Goods brought across the border (e.g., traditional items or trade goods) are subject to customs scrutiny, despite Jay Treaty arguments for duty-free passage.

- **Akwesasne Mohawk Example**:

  - The Akwesasne Mohawk Nation, whose territory spans New York, Ontario, and Quebec, frequently invokes Section 289. Members born in Canada use it to live or work in the U.S. portion of their territory, but they often face challenges proving eligibility or navigating customs rules.

### Legal and Political Context

- **Relation to Jay Treaty**: While Section 289 reflects the Jay Treaty’s spirit, it’s a unilateral U.S. law, not a treaty obligation. Canada does not reciprocate with similar rights for U.S.-born Native Americans, citing modern border laws and sovereignty.

- **Challenges**: Some tribes, like the Haudenosaunee, argue Section 289 is too restrictive (e.g., blood quantum requirements) and push for broader recognition of Jay Treaty rights, including duty-free trade. Courts have generally upheld Section 289’s limits, prioritizing U.S. immigration law.

- **Advocacy**: Tribal leaders and organizations continue to advocate for streamlined processes, better CBP training, and recognition of tribal IDs or passports to ease crossings.

### Current Status (June 3, 2025)

As of now, Section 289 remains in effect with no recent legislative changes. There are no major new court rulings or policy shifts altering its application, based on available information. However, ongoing tribal advocacy and occasional border disputes (e.g., at Akwesasne) keep the issue alive. Discussions on platforms like X or recent web sources don’t indicate significant updates but highlight persistent frustration with bureaucratic hurdles.

For now, Section 289 is a critical but limited tool for Canadian-born Native Americans crossing into the U.S., rooted in the Jay Treaty’s legacy but constrained by modern border realities.