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Wednesday, December 17, 2014

Treaty of Ghent Bicentennial Celebration!

The Treaty of Ghent was signed on Christmas Eve, 1814. It ended the War of 1812 and established peace between the United States, Great Britain, and Canada.

How is this relevant to the Jay Treaty? Jay Treaty rights were suspended during the War of 1812.

The U.S. Supreme Court held in Karnuth v. United States that the War of 1812 abrogated the Jay Treaty and that following the war, the Treaty of Ghent revived the rights of native tribes predating that conflict.  279 U.S. 231 (1929).

Despite this Supreme Court opinion, a wide range of other theories also exist as to the implications of the War of 1812 and the Treaty of Ghent on the Jay Treaty.

Some argue that the rights were indeed abrogated by the War of 1812 and revived by the Treaty of Ghent, and that they were later reaffirmed by statute. Others argue the Treaty of Ghent did not revive the Jay Treaty, and Jay Treaty rights exist now only by virtue of statute. Still others maintain that Jay Treaty rights were permanent in character and could not be abrogated by war, and that the Treaty of Ghent simply reaffirmed rights already in existence.

Regardless, all agree that the Treaty of Ghent is an important piece of Jay Treaty history.

To celebrate the Treaty of Ghent's 200th birthday, Peace Arch State Park American Kitchen is holding a commemorative bicentennial event and open house.

The event begins at 3:00 pm and will include live music, period costumes, refreshments, holiday lights, and more. For more information, visit www.peacearchpark.org.

Friday, April 25, 2014

Crimmigration Considerations for American Indians Born in Canada

On April 4, 2014, Cascadia Cross-Border Law hosted “Crimmigration 101,” a CLE exploring the intersection of criminal and immigration law.

The two bodies of law are inextricably bound: for example, under Padilla v. Kentucky, criminal defense attorneys must advise noncitizen defendants of the adverse immigration consequences resulting from a plea agreement, or face possible liability for ineffective assistance of counsel. Similarly, immigration attorneys must be prepared to appropriately advocate for clients with criminal convictions before the Department of Homeland Security, and to work with defense attorneys or even directly with prosecutors to craft “safe” plea agreements that will not trigger removal or otherwise affect an individual’s immigration status.

As such, one of the most important things an attorney can learn about a client is the individual’s immigration status, because that status will determine the attendant consequences of a plea agreement—the most significant usually being whether the plea agreement will trigger removal.

However, even if it is clear that a client is a noncitizen (and that derivative citizenship laws do not apply, which would make the individual a citizen) the inquiry must not end—because the individual’s specific status matters, to the extent that the person may not actually be removable. Attorney Greg Boos opened Crimmigration 101 with a presentation exploring the potential in certain circumstances to “short-circuit the system” and obviate removal proceedings entirely.

There is one special group of noncitizens for whom removal is not a concern. Certain American Indians born in Canada enjoy access to the United States unrestricted by Immigration and Nationality Act (INA), including its removal provisions.

“American Indian born in Canada” is a statutory term of art that encompasses indigenous peoples of North America, who were born in Canada and who have at least a 50% native bloodline. Rooted in the Jay Treaty of 1794 and now codified by INA § 289 (8 U.S.C. § 1359), this status allows those who can establish this bloodline freely enter and renter the United States for any purpose. Furthermore, they cannot be removed.
Unfortunately, this extraordinary right is widely misunderstood, both by its intended beneficiaries and by those enforcing our immigration laws. Many who qualify for the status do not know they meet the status, either because they do not consider themselves to be Indian, or because they are unaware of their native bloodline. However, American Indian born in Canada status is an entirely racial metric and does not depend in any way on a tribal identity.

These considerations highlight the need for an awareness and broader understanding on the part of those adjudicating this status, those enforcing U.S. immigration law, as well as the native communities and general public, with regard to who is eligible. These considerations similarly emphasize the importance for attorneys who represent noncitizens to fully understand this status, and ask the appropriate questions to determine whether a noncitizen client may indeed be an American Indian born in Canada.


More information about the unparalleled rights of American Indians born in Canada can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2334394.

Friday, January 24, 2014


We thank you for your interest in the Jay Treaty! 

We are excited to report that our article, "American Indians Born in Canada and the Right of Free Access to the United States" was published on October 1, 2013 through both the Border Policy Research Institute, and Benders Immigration Bulletin.

We invite you to download a copy!

Since publication, it has been presented by Greg Boos at a conference in Rome, Italy; made the SSRN Top Ten list; and been noted by the leading Indian Law blog, TurtleTalk.

On February 8, 2014, we presented our article at the Arctic Encounter Symposium in Seattle!  

We are currently working on an expansion of the paper, so please let us know if you have any suggestions.