The Canadian Indian Free Passage Right: The Last Stronghold of Explicit Race Restriction in United States Immigration Law
28 Pages Posted: 16 Sep 2008 Last revised: 30 Dec 2009
Date Written: September 14, 2008
The paper discusses the little-known provision of the Immigration and Nationality Act that allows Canadian Indians of 50% or more of the "blood of the American Indian race" to cross the United States-Canada border free of visa and other immigration requirements. Through archival documents, the paper traces the origins of the right through the 1794 Jay Treaty between the United States and Great Britain to a statute passed by Congress in 1928. The paper discusses the interpretation of the 1928 statute by the Immigration and Naturalization Service, which first applied a political definition of the term "Indian" based on Canadian law, then shifted to a racial definition based on American naturalization law. Finally, the paper discusses the 1952 amendment to the statute, which added the blood quantum requirement, and reveals the reasons why a racial definition was added at the same time American immigration law generally moved beyond racial distinctions to control entry to the United States. Based on this discussion, the paper analyzes the implications of the provision for current concerns in federal Indian law and immigration law over racial classifications. Noting that Congress' authority over Indian law and immigration law both depend on historically unfettered "plenary power," the paper suggests that the Canadian Indian statute might be used to distinguish other statutes defining American Indians by blood quantum and to challenge the Supreme Court's exemption of racial immigration provisions from equal protection review.
Keywords: immigration, canadian Indians, blood quantum, federal Indian law, race, equal protection
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