The Immigration and Nationality Act ("INA") provides special privileges to American Indians born in Canada. INA §289 provides 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.
§292.2 of the Immigration Regulations, contained in Title 8 of the Code of Federal Regulations (8 CFR), provides that American Indians born in Canada who are residing in the United States shall be regarded as having been lawfully admitted to the United States for permanent residence. It further provides that American Indians born in Canada do not possess at least 50 per centum of blood of the American Indian race, but who entered the United States before December 4, 1952 under a similar provision contained in the Act of April 2, 1928, are also regarded as having been admitted to the United States for permanent residence.
To meet the bloodline requirement contained in INA §289, a Canadian-born American Indian is required to establish that he or she has at least 50 per centum of American Indian blood. The phrase "American Indians born in Canada" is interpreted in a racial context. In other words, political recognition as an Indian such as registration with the Canadian government or with tribal authorities is not a prerequisite to benefits under INA §289.
The burden of proof rests with the applicant to establish his or her eligibility. This can sometimes be established to the satisfaction of INS officers by presenting ordinary identification and a "tribal card" or certification from the Department of Indian and Northern Affairs, specifying the applicant's tribal affiliation. However, a previous INS General Counsel opinion has stated that such documentation is insufficient to establish eligibility, since status as an Indian under the Indian Act (Canada) does not require 50 percentum of American Indian blood. Instead, a confirmation letter from the tribal band can be used if it is based on tribal records. Once the claim of being an American Indian born in Canada is established, the alien can enter the U.S. regardless of period of time or purpose. However, if he or she enters as a lawful permanent resident, admission is recorded on Form I-181.
The right of an American Indian born in Canada to pass the borders of the United States amounts to an absolute exemption from all immigration-related restraints contained in the INA, upon the establishment of the necessary percentage of Indian blood. In Matter of Yellowquill, 16 I&N Dec. 576 (BIA 1978), an American Indian born in Canada who was convicted of selling heroin could not be deported.
Under 8 CFR §289.1, the right of free passage across the United States border does not extend to the spouse or dependent child of an American Indian born in Canada or an adopted member of an Indian tribe unless that person also has a minimum of 50 per centum of blood of the American Indian race. However, as an American Indian who resides in the United States under 8 CFR §289 is considered lawfully admitted for permanent residence (see 8 CFR §289.2), he or she will be able to petition a spouse or dependent child under the 2a family-based immigration preference.
It is interesting to note that the Canadian government does not extend reciprocal privileges to American Indians born in the United States.