How Much Blood to Cross the Northern Border?: Reconsidering the Blood Quantum Requirement of Ina §289

• Publication year: 2019

Taymoor M. Pilehvar, in collaboration with Lory D. Rosenberg^*

Abstract: The Jay Treaty of 1795 recognized the right of indigenous populations to cross freely across the U.S.-Canada border. But INA §289, that treaty's implementing statute in the United States, only extends this free passage to those Canadians with "at least 50 per centum of blood of the American Indian race," a requirement absent in the Jay Treaty itself. This article suggests that the statutory blood quantum requirement in INA §289 should be rescinded to bring the statute more in line with the Jay Treaty, antidiscrimination provisions of the INA, as well as modern standards of tribal sovereignty and self-determination as set forth in domestic and international law.

Introduction

Should U.S. immigration law determine indigenous status under racial standards or political standards? At a time when national attention is focused along the U.S. southwest border, disparities in the admission of native American Indians seeking to cross our northern border also warrants scrutiny and a fair and humane resolution. This article posits that determining indigenous status by political standards better represents the intent of the underlying law in question and compels a federal statutory implementation that is more in line with modern standards.

The 1795 Jay Treaty recognized the tribal right of free passage over the U.S.-Canada border, but that treaty presently is being implemented in the United States by a statute that has significantly narrowed access to the benefits of the treaty by restricting the tribal right of free passage to those with "at least 50 per centum of blood of the American Indian race." This race-based definition represents an approach that frustrates the antidiscrimination provisions of the Immigration and Nationality Act (INA) and is disfavored by recent developments in numerous areas of law. The statutory deviation from the original treaty language deprives Canadian-born indigenous peoples with less than 50 percent indigenous blood of their right of free passage across the border—a sovereign right of their political class denied solely because of an insufficiency of racial purity.

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This article examines section 289 of the Immigration and Nationality Act, entitled "American Indians Born in Canada,"¹ and compares it to the specific provision of the 1795 Jay Treaty that it is intended to implement. The current application of INA §289 is that a qualifying person can come to the U.S.-Canada border with evidence that establishes tribal membership and at least 50 percent blood quantum, at which point the border official, without requiring a fee, will create "a record of admission for lawful permanent residence, even if technically inadmissible or previously deported."² The USCIS Adjudicator's Field Manual clarifies that it is "not adjudicating an application to become a lawful permanent resident, [but rather] verifying a status which the person already has and issuing documentation thereof."³ The 50 percent blood quantum requirement was not contemplated in the Jay Treaty.

The first section discusses the history of the Jay Treaty and its interpretation, including its modern statutory application pursuant to INA §289. The second section discusses the barriers to a legal challenge based solely on INA §289's deviation from the Jay Treaty. The third section contends that INA §289 is out of line with modern evolutions in U.S. immigration law, federal Indian law, and international human rights law. The article suggests that rescission of the statutory blood quantum requirement contained in INA §289 is an appropriate way to strengthen that statute's compliance with antidiscrimination provisions of the INA and to more closely align U.S. immigration law with modern standards of tribal sovereignty and self-determination found in domestic and international law.

The Jay Treaty Originally was Interpreted Along Political Rather Than Race-Based Lines

In contrast to the current U.S. race-based definition of "American Indian" in regard to free passage, for which immigration law imposes a blood quantum requirement, the Jay Treaty recognized free passage for "Indians" on a political basis. The rules that govern immigration to the United States are derived from a variety of sources, including federal statutes, regulations, treaties, executive orders, and administrative policy. Given the impact of immigration laws on the social and economic character of the United States, consideration of the underlying intent of these laws is warranted to avoid misalignment of existing laws with our progressing social and political values.

The Jay Treaty was Originally Interpreted to Define the Designation "Indian" on a Political Basis

In 1794, shortly after the American Revolution, the United States signed a treaty with Great Britain that was intended to stabilize postwar relations

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between the two countries, including relations with the British-owned colony of Canada that shared a border with the United States. That treaty, known informally as the Jay Treaty,⁴ included a provision that recognized the right of indigenous peoples on the North American continent to pass freely across the U.S.-Canada border. It reads in pertinent part as follows:

It is agreed that it shall at all Times be free to His Majesty's Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America.⁵ (Emphasis added.)

This two-century-old treaty provision remains alive in U.S. immigration law, though it is not being applied in its original form. In 1928, the U.S. Congress passed legislation codified at 8 USC §226a to implement U.S. obligations under the Jay Treaty.⁶ The 1928 legislation had no blood quantum requirement but did restrict the benefit of admission by adding that adopted tribal members could not enjoy the benefit of free passage. In the years that followed, the Board of Immigration Appeals (BIA) interpreted §226a along political lines. For example, an early BIA case on the subject is Matter of S-, in which a non-native Canadian woman married a native Canadian man, thereby gaining her tribal membership according to the rules of the tribe.⁷Her claim to right of passage was vindicated by the BIA, which determined that, with the exception of the statute's bar against membership by adoption, the Jay Treaty intended to define "American Indian" along political affiliation lines.⁸ Also of note in Matter of S— is the liberal degree of deference given by the BIA to the tribe's own membership requirements. Nevertheless, this era of construction along political lines would not last.

Interpretation of the Jay Treaty Shifted to a Race-Based Approach in the Mid-Twentieth Century

In 1947 a federal district court in New York considered the case of United States ex rel. Goodwin v. Karnuth, which presented facts converse to Matter of S-. In Goodwin, a Canadian-born native woman had married a non-native man, thereby losing her tribal status under then-standing Canadian law.⁹ While present in the United States she was placed in deportation proceedings, which she challenged based on §226a, the predecessor to INA §289. The federal court determined that despite being stripped of her political affiliation from the tribe, she was still entitled to the benefits of §226a because she was of tribal blood, thereby relying on racial connotations to establish her inclusion.

While Matter of S- was an administrative decision, Goodwin was the result of the same issue being decided by a federal court. This decision was made in a time that the federal government was transitioning into a period

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of Indian policy known as the "Termination Era."¹⁰ This period was marked by federal actions intended to dissipate its trust relationship with the natives, curtail tribal sovereignty, and disencumber tribal land for federal government use, often by integrating natives into the American lifestyle and minimizing the importance of tribal membership and decreasing the number of tribal members.¹¹ This overarching federal goal was consistent with the Goodwin decision, which shifted the Jay Treaty interpretation away from the recognition of membership as decided by sovereign tribes and shifted toward a race-based interpretation, which would also result in a more narrow class of indigenous persons who could enjoy free passage.

The Goodwin decision ushered in a new era of Jay Treaty interpretation in which "American Indian" was determined along racial lines instead of political ones. In 1952, shortly after this decision, Congress repealed 8 USC §226a and replaced it with INA §289, which is still good law and reads as follows:

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. (Emphasis added.)

Thus, the amended U.S. version of its Jay Treaty obligations imposes a significant restriction on the inherent indigenous right of free passage recognized in the treaty.

The statutory blood quantum requirement of INA §289 is a significant restriction on who can exercise their right of free passage compared to those contemplated in the Jay Treaty, and one that deserves reconsideration in light of antidiscrimination provisions in U.S. immigration law, as well as modern trends in federal Indian law and international law. Whether or not Congress's intent in setting the 50 percent threshold of racial purity was motivated by "Termination Era" goals of eradicating tribal sovereignty and society, the blood quantum requirement in INA §289 could rightly be seen as racial discrimination, a trespass to tribal sovereignty, and a...