Update on Border Crossing

In the last two issues of the Wabanaki Legal News, we reported extensively on the new rules for crossing the border between the United States and Canada. Here is an updated summary:

Air Travel Into The United States

In order to enter the United States by air, everyone needs a passport. This rule applies to U.S. citizens as well as citizens of other countries, including Canada. There are no exceptions to this rule for Indians. There are a few documents other than passports which can be used to enter the United States by air. For more information about these documents, go to: www.dhs.gov/files/crossingborders/travelers.shtm.

Entering The United States By Land

U.S.-Born Indians. In order to enter the United States by land, Indians who are citizens of the United States must present a passport, a passport card or a tribal ID card. For the time being, existing tribal ID cards are acceptable. However, the acceptance of tribal ID cards is only temporary.

Several members of our staff attended a meeting between officials of the Maine tribes and representatives of the U.S. Department of Homeland Security (DHS). This meeting was held on Indian Island on November 5, 2009. The tribes in the United States are being given some time to develop new tribal ID cards which meet certain security requirements. At the meeting on November 9, the DHS representatives explained what the security requirements are. They also explained how the tribes can produce new ID cards which satisfy those requirements. The DHS representatives also made it clear that after the tribes have had an opportunity to develop new, secure ID cards, the U.S. government will change the rule about how Indians who are U.S. citizens can enter the United States by land. When the rule changes, existing tribal ID cards will no longer be acceptable. No one knows for sure when this will happen, but after the rule changes, an Indian who is a citizen of the United States will need to present a passport, a passport card or a new, secure tribal ID card in order to enter the United States by land.

Last year some local federal officials gave misleading information to some local tribal leaders. This information created the false impression that the current tribal ID cards would or might be accepted permanently. However, that has never been true. At the meeting in November at Indian Island, the DHS officials from Washington cleared up any confusion. They said that from the beginning of the rulemaking process it has been clear that at some point in time the current tribal ID cards would no longer be accepted.

One good thing that has happened recently is that the federal government announced that there are funds available to assist the tribes with security initiatives. This includes the development of secure tribal ID cards. In December of 2009, DHS informed the tribes that up to ten million in federal grants would be available in 2010. The cost involved in developing secure tribal ID cards has always been one of the biggest concerns that tribes have had. This new federal grant money may make it easier for the tribes to develop secure tribal ID cards.

Canadian-Born Indians. In order to enter the United States by land, Indians who are citizens of Canada must present a passport or a Certificate of Indian Status card. These cards are usually called INAC cards. For the time being, existing INAC cards are acceptable. Once again, acceptance of existing INAC cards is only temporary.

For some time, the Canadian government has been in the process of developing a new INAC card which meets the U.S. government's security requirements. This new card will be called the “Secure Certificate of Indian Status” or the Secure INAC Card. There have been, and continue to be, significant delays in the development and distribution of the Secure INAC Card. Recently, there have been reports in Canada which indicate that it could be late in 2010 before many Indians will receive Secure INAC Cards. However, once the new Secure INAC Cards are more widely available to Indians in Canada, the U.S. government will change the rule about how an Indian who is a citizen of Canada can enter the United States by land. When the rule changes, existing INAC cards will no longer be acceptable. No one knows for sure when this will happen, but after the rule changes, an Indian who is a citizen of Canada will need to present a passport or a Secure INAC Card in order to enter the United States by land. For more information, go to: www.ainc-inac.gc.ca/br/is/scs  www.afn.ca/misc/communique-ncpf.pdf.

Entering The United States By Sea

The rules for entering the United States at a seaport are basically the same as the rules for entering the United States by land, except that for U.S. citizens, a passport card can be used when returning from certain countries (see below).

Things To Remember

U.S.-Born Indians (Passport Cards). For U.S. citizens, there is a less expensive alternative to a passport called a passport card. Passport cards are not valid for entering the United States by air, but they can be used just like a passport to enter the United States by land. They can also be used to enter the United States at a seaport, but only from certain countries. Those countries are Canada, Mexico, Bermuda and the countries in the Caribbean. (More information)

Canadian-Born Indians (The Jay Treaty). Under the Jay Treaty, as interpreted by the U.S. government, Canadian-born Indians with 50% or more Indian blood have the right to freely enter the United States by land. Nothing in the Jay Treaty has changed, and nothing in the Jay Treaty will change in the future when secure tribal ID cards and Secure INAC Cards are in use.

What has changed is that now, everyone who enters the United States must present a document acceptable to the U.S. government that proves their identity. This includes U.S. citizens and citizens of other countries. It also includes people with Jay Treaty rights. Like everyone else, people with Jay Treaty rights will be required to prove who they are, with a document acceptable to the U.S. government, in order to enter the United States.

The bottom line is that people with Jay Treaty rights still have the right to enter the United States, but like everyone else they have to prove who they are before they will be allowed to do so.

Canadian-born Indians may also need to present proof that they have at least 50% Indian blood. It is important to remember that a passport does not prove blood quantum. Tribal ID cards and INAC cards - even new, secure cards when they are available - do not prove blood quantum, either. Therefore, if you have at least 50% Indian blood, you should bring proof of your blood quantum with you to the border. If you are asked for this proof and you do not have it, you may not be allowed to enter the United States.