Tooby's California Post-Conviction Relief for Immigrants
§ 4.19 f. American Indians Born in Canada
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Canadian citizens, who are American Indians born in Canada, may not be deported.[70] This statutory right constitutes a defense to a charge of illegal re-entry into the United States,[71] but only where the defendant establishes the birth and blood qualifications.[72] The court may exclude defense evidence testimony of a cultural anthropologist and of the defendant as to the identity of the defendant where this evidence fails to state what percentage of Indian blood the noncitizen has.[73]
The immunity of certain American Indians born in Canada from exclusion and deportation is derived from the Jay Treaty of 1794[74] with Great Britain and was reaffirmed in the Treaty of Ghent at the conclusion of the War of 1812.[75] The beneficiary must be 50% or more of the blood of the American Indian race. Practically speaking, the U.S. government looks at tribal membership cards to make this determination.
[70] Matter of Yellowquill, 16 I. & N. Dec. 576 (BIA 1978), construing INA § 289, 8 U.S.C. § 1359 (nothing in Title II of the INA relating to immigration can restrict American Indians, who were born in Canada and have at least 50 percent American Indian blood, from entering or leaving the United States). This statutory right constitutes a defense to a charge of illegal re-entry into the United States, in violation of INA § 276, 8 U.S.C. § 1326, but only where the defendant establishes the birth and blood qualifications. United States v. Curnew, 788 F.2d 1335 (8th Cir. 1986).
[71] INA § 276, 8 U.S.C. § 1326.
[72] United States v. Curnew, 788 F.2d 1335 (8th Cir. 1986).
[73] Ibid.
[74] The language of INA § 289, 8 U.S.C. § 1359 (based on the Jay Treaty) is 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.”
[75] See INA § 289, 8 U.S.C. § 1359; 8 C.F.R. § 289.
