an ngo in consultative status with ecosoc
american
indian law alliance
to hear the voices of our people, even unto the SEVENTH generation
for a copy of the text of Border Crossing Rights
click on the pdf format file link below
BORDER CROSSING RIGHTS
Between the United States and Canada for Indigenous Peoples
When the Europeans landed in North America, they encountered sovereign pre-existing nations who had their own citizens, territories, governments, and laws. In the beginning, the European settlers conducted their relations with America’s inhabitants mindful of their sovereign status....At the end of the American Revolution, the United States was granted independence. Later,a boundary was fixed to separate America from the balance of the British territories in North America. The exact location of this border was an open dispute until 1794, when the United States and Britain entered into the Jay Treaty, an agreement between the two nations that provided free border crossing for United States citizens, British subjects, and most importantly “the Indians dwelling on either side of the boundary line” who were excused from taxation on their “own proper goods” as they crossed the border. While free border crossing has been traditionally granted, the United States has never provided the freedom from duties it promised in the Jay Treaty.
An even greater victory, and a substantial change in law, was secured through the activities of the Indian Defense League and a legal action led by Paul Diabo, a Kahnawake Mohawk. After these landmark efforts, Canadian-born individuals with a minimum of 50% Aboriginal blood were permitted to enter, live in, and work in the United States without restriction. Moreover, the United States will not deport these individuals for any reason.
Canada also has had a checkered history in terms of honoring its obligations to its Aboriginal Peoples, first disavowing them in the Francis case, and then largely restoring them through subsequent legislation. The current Canadian state of affairs suggests that Aboriginal people whose nations are divided by the U.S.-Canadian border can enter Canada as a matter of right. However, the Canadian government, like its American counterpart, has been less inclined to honor its Jay Treaty commitments to exempt Aboriginal Peoples from duties on things they bring across the border. Although the right to import items for personal or collective use has not been litigated, the Supreme Court of Canada has denied Aboriginal Peoples any exemption from the duties that normally attach to the importation of trade goods into Canada.
The political landscape concerning the rights of indigenous people continues to change. The United Nations is currently debating declaration that would define the rights of indigenous people to include, “[T]he right to maintain and strengthen their distinctive spiritual and material relationship with the lands, territories, waters and coastal seas and other resources which they have traditionally owned or otherwise occupied or used, and to uphold their responsibilities to future generations in this regard.” And it would provide other groundbreaking protections for the better as well. For the worse, the United States openly opposes the adoption of the Declaration by the United Nations, while the Canadian government has gone from oppostion to support and back to opposition. Such are the variances of the EuroAmerican democratic political model.
In the meantime, both the United States and Canada have continued to update their border crossing laws. On this front, the most notable changes to immigration policy have followed in the wake of the September eleventh terrorist attacks. The U.S. government’s response has been to make its borders less porous, and correspondingly it has become more difficult to cross the U.S.-Canadian border in recent years.
The Border Crossing Rights handbook was originally researched and drafted by AILA legal interns in the summer of 2000 with the support of Montana Legal Services, North Dakota Legal Services, Pine Tree Legal Services, and the Indian Law Office of Wisconsin Judicare, who agreed to be listed as Legal Resources. In 2005-2006, the information was updated by Mark Billion, a graduate of Columbia Law School. Mr. Billion reviewed the information in light of changes in immigration law and tightening borders. This booklet is only for reference and is not intended to offer any legal advice.
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