American Indian Culture and Research Journal

During the late 18th and 19th centuries, a body of United States law developed which not only treated Native Americans differently than U.S. citizens, but also differentiated them from all other aliens. After Congress’ 1891 creation of what is now the U.S. Immigration and Naturalization Service (INS), the new agency faced questions of policy and procedure regarding the unique immigration and nationality status of North American Indians. Not until 1950 were all questions of the Indians’ status resolved in a manner that preserved their singular rights under American immigration law. The exceptional immigration status of North American Indians rests, obviously, on their being the only peoples of the world who did not immigrate to North America after Europeans laid claim to the continent. The difference of American Indians in this regard was recognized by the Jay Treaty, negotiated between the United States and Great Britain and signed November 19,1794. Article III of the agreement guaranteed the right of British subjects, American citizens, and “also the Indians dwelling on either side of the said boundary line” to freely cross and recross the U.S.-Canadian Border. While the right of British (Canadian) and American citizens to freely pass the border was annihilated by the War of 1812, the right of American Indians to do so under the Jay Treaty was not. Thus since 1794, for immigration purposes, Native Americans have not had to recognize the political line separating the United States and Canada.