Free Passage Rights Of North
Initiative (WHTI), a higher standard of
American Indians Born In
Canada Under The Jay Treaty
And 8 U.S.C.A. § 1359
HISTORY
 The Jay Treaty of 1794 between the United
States and Great Britain recognized the
right of North American Indians to cross the
international border between Canada and
the United States.
 Some historians and legal scholars argue
that the treaty was abrogated by the War of
1812, but modern jurisprudence continues
to reference the Jay Treaty in their analysis
of North American Indian free passage
rights.
 The signing of the Treaty of Ghent in 1814
reinstated the free passage rights of North
American Indians that may or may not
have been abrogated by the war.
 The Immigration Act of 1924 caused North
American Indians some problems crossing
the border, since it failed to mention or
recognize the right of free passage.
 In April of 1928, Congress added the free
passage right of North American Indians
into 8 U.S.C.A. § 1359 in response to the
Immigration Act of 1924, which restricted
access to the United States.
 8 U.S.C.A. § 1359 states, “Nothing in this
subchapter 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.”
Who Is Entitled To Free Passage  Under the Western Hemisphere Travel
Rights As A North American identification is required. The
Indian Born In Canada? Department of Homeland Security
continues to accept prior issued photo
 A North American Indian from a First identification tribal cards until better
Nations Band or Inuit, who can show at complying cards are available. The
least 50% Indian Blood. better card is a proposed Secure
Certificate of Indian Status (SCIS) card
 This does not include non-Indians adopted that are anticipated during 2010.
into North American Indian families but
only those individuals possessing 50% or
more Indian blood per centum.
 The Métis are generally not allowed free
passage rights; however, in some cases,
documents of Métis descent combined
with other documentation may satisfy the
statutory blood requirement.
What Documents Must Be
Produced To Establish Oneself What Do Free Passage Rights
As A Qualifying Canadian Born For North American Indians
North American Indian? Mean Today?
 Canadian Birth Certificate (long form)
You have the right to:
 Documentation either from the Ministry of
 Cross the US/Canada Border freely.
Indian and Northern Affairs or a written
statement from an official of the tribe from
 Live and work in the US.
which you or your ancestors originate -
substantiated by documentary evidence
 Be eligible for public benefits, such as
(tribe records and civil long form birth
Medicaid, Supplemental Security Income
certificate bearing names of parents).
Such a statement would be on the tribe's (SSI), Medicare, Unemployment Benefits
and other Public Assistance, provided
official letterhead and should explicitly
you meet the appropriate agency
state what percentage North American
guidelines.
Indian blood you or your parents possess,
based on official documents/records.
 Register for college or university as a
 Photographic identification, such as a “domestic student” in the US.
driver's license, tribal identification card or
You are not exempt from paying duties on
passport.
goods when crossing borders.
 Who Do I Contact
With Additional Questions?
Web Resources Call: 1-800-634-5263
http://www.ptla.org/wabanaki/jaytreaty.htm
Seniors 60 and over Call
1-866-621-9886 Free Passage
http://ww.consular.canada.usembassy.gov/
first_nations_canada.asp Legal Services of North Dakota Rights of
http://www.cbp.gov/xp/cgov/travel/vacation/
ready_set_go/whti_bg/land_sea/
Bismarck Law Office
418 E Broadway #7
North
http://www.aboriginallegal.ca
Bismarck, ND 58501 American
Fargo Law Office
112 N University #220, PO Box 1327 Indians Born
Fargo, ND 58107-1327
in Canada
Minot Law Office
20 - 1st St SW #201
Minot, ND 58701

New Town Law Office

345 Main St, PO Box 217
New Town, ND 58763-0217

Belcourt Law Office

BIA Road 7 Bldg 85, PO Box 1365
DISCLAIMER: This information is not legal
Belcourt, ND 58316-1365
advice. If you have a legal problem, you
should talk to a lawyer and ask for advice
about your options.

July 2010
General Information - Flyer #929
Published by Legal Services of North Dakota

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