According to the United States Immigration and Nationality Act:
Sec. 289. [8 U.S.C. 1359] 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.
I used to believe that anyone in possession of a Certificate of Indian Status Card automatically had 50% blood of the American Indian Race. If they did not have 50%, I thought they were considered Metis. But, recently, I learned a person was issued a “Certificate of Indian Status” card because she married a person with Indian Status, despite having no American Indian Blood. So, it is not true that possession of the Card is proof of 50% Blood of the American Race. What this section of Act tells me is: (a) if you have a criminal record that might otherwise make you inadmissible to the United States; (b) you can proof quantum blood (50%); then (c) you do not need a Waiver of Inadmissibility to travel to the United States if your criminal record makes you inadmissible.
Eligibility for Indian Status is found in the Indian Act. The description pertains primarily to people of blood, but also indicates that people qualify if they are on the band list. So, in addition to referring to to the Indian Act, we must also look externally to see who qualifies to be on a band list. Examples of people that can be added to the band list or who qualify under the Indian Act who do not have 50% blood of the American Indian Race include (a) individuals who marry a Status Indian; (b) adopted children; (c) you have one eligible parent (ie. one parent may have 50% blood of the American Indian Race who marries a person with 0%, leaving you with 25% blood); or (d) you are an honorary member.
It is a challenge to find anything on the internet that specifically advises what you need to carry with you when traveling to the United States to prove you have the quantum of 50% Blood of the American Race. But, upon speaking with an Immigration Supervisor at the Willowcreek Port of Entry, who advises he has 25 years experience, I have learned the following:
It is preferred that you carry the Certificate of Indian Status Card AND Tribal Letter as border guards have had difficulty with some Bands fraudulently issuing Tribal Letters stating at least 50% or more, when it was not the case. To minimize the risk of refusal, carry both documents.
During my interview with the Immigration Supervisor referred to above, he say the law (Sec. 289. [8 U.S.C. 1359] referred to above] is the result of the Jay Treaty. Article III of the Jay Treaty states:
Native Indians born in Canada are therefore entitled to enter the United States for the purpose of employment, study, retirement, investing, and/or immigration”.(“First Nations and Native Americans”. United States Embassy, Consular Services Canada. Retrieved 2009-03-03.)
Interestingly, he advises the rights are extended to Native Indians in Canada traveling to the United States, but not to Native Indians in the United States traveling to Canada. My new lesson today was that the Aboriginal Rights for Individuals with Indian Status do not extend to both sides of the border.