I wrote an article that was chosen for academic publication in the nation’s first immigration academic journal by AILA (the American Immigration Lawyers Association). The article, below, discusses the Jay Treaty from 1795 that recognized the inherent right of indigenous tribes to pass freely over the USA-Canada border. This Treaty did not grant the right, rather it recognized the right which was ever present since the indigenous groups existed long before borders were formed. But the U.S. has increased the rules in an illegal way. Since the 1950s, the U.S. government has required at least 50% racial purity, denying all other tribal members the ability to cross the border under the Jay Treaty. I propose that this is racial discrimination, an affront to tribal sovereignty, and a dereliction of our international law commitments under the United Nations Declaration on the Rights of Indigenous Peoples.
This obscure area of the law has gone unquestioned for far too long. But one day a random client walked into Pilehvar Law. He is a card-carrying member of a Canadian indigenous tribe with the documentation to prove 25% blood quantum. His family knows that he is 50% blood quantum, but the government doesn’t use literal blood tests to determine blood quantum. They require a showing of familial registry in Canada under their Indian Act, which is based on searches of tribal rolls and familial records. But these records are impossible to find for my client and many indigenous families. My client’s mother and her family were displaced from their family and assigned by the Crown to a Canadian family. This indigenous assimilation strategy called “the Sixties Scoop” was rampant in Canada from the 1950s-1970s, and also happened in the United States, as discussed in the article. Because of this common issue he and many like him cannot demonstrate that they meet the blood quantum requirement for a “Jay Treaty green card.” But I propose that the requirement of 50% racial purity to enjoy a benefit of tribal membership is unconstitutional. These blood quantum laws are tantamount to punishment to tribe members for the miscegenation (interracial breeding) of their ancestors, and an unlawful difference in legal treatment based on racial purity.
The text of the article is below. If you or anybody you know is a Canadian member of a First Nations tribe who is considering moving to the United States, contact Pilehvar Law today.
Should U.S. immigration law determine indigenous status under racial standards or political standards? At a time when national attention is focused along the U.S. southwest border, disparities in the admission of native American Indians seeking to cross our northern border also warrants scrutiny and a fair and humane resolution. This article posits that determining indigenous status by political standards better represents the intent of the underlying law in question and compels a federal statutory implementation that is more in line with modern standards.
The 1795 Jay Treaty recognized the tribal right of free passage over the U.S.-Canada border, but that treaty presently is being implemented in the United States by a statute that has significantly narrowed access to the benefits of the treaty by restricting the tribal right of free passage to those with “at least 50 per centum of blood of the American Indian race.” This race-based definition represents an approach that frustrates the antidiscrimination provisions of the Immigration and Nationality Act (INA) and is disfavored by recent developments in numerous areas of law. The statutory deviation from the original treaty language deprives Canadian-born indigenous peoples with less than 50 percent indigenous blood of their right of free passage across the border—a sovereign right of their political class denied solely because of an insufficiency of racial purity.
This article examines section 289 of the Immigration and Nationality Act, entitled “American Indians Born in Canada,” and compares it to the specific provision of the 1795 Jay Treaty that it is intended to implement. The current application of INA §289 is that a qualifying person can come to the U.S.-Canada border with evidence that establishes tribal membership and at least 50 percent blood quantum, at which point the border official, without requiring a fee, will create “a record of admission for lawful permanent residence, even if technically inadmissible or previously deported.” The USCIS Adjudicator’s Field Manual clarifies that it is “not adjudicating an application to become a lawful permanent resident, [but rather] verifying a status which the person already has and issuing documentation thereof. The 50 percent blood quantum requirement was not contemplated in the Jay Treaty.
The first section discusses the history of the Jay Treaty and its interpretation, including its modern statutory application pursuant to INA §289. The second section discusses the barriers to a legal challenge based solely on INA §289’s deviation from the Jay Treaty. The third section contends that INA §289 is out of line with modern evolutions in U.S. immigration law, federal Indian law, and international human rights law. The article suggests that rescission of the statutory blood quantum requirement contained in INA §289 is an appropriate way to strengthen that statute’s compliance with antidiscrimination provisions of the INA and to more closely align U.S. immigration law with modern standards of tribal sovereignty and self-determination found in domestic and international law.
I. The Jay Treaty Originally was Interpreted Along Political Rather Than Race-Based Lines
In contrast to the current U.S. race-based definition of “American Indian” in regard to free passage, for which immigration law imposes a blood quantum requirement, the Jay Treaty recognized free passage for “Indians” on a political basis. The rules governing immigration to the United States are derived from a variety of sources, including federal statutes, regulations, treaties, executive orders, and administrative policy. Given the impact of immigration laws on the social and economic character of the United States, consideration of the underlying intent of these laws is warranted to avoid misalignment of existing laws with our progressing social and political values.
I.a The Jay Treaty was originally interpreted to define the designation “Indian” on a political basis
In 1794, shortly after the American Revolution, the U.S. signed a treaty with Great Britain that was intended to stabilize postwar relations between the two countries, including relations with the British-owned colony of Canada that shared a border with the United States. That treaty, known informally as the Jay Treaty, included a provision that recognized the right of indigenous peoples on the North American continent to pass freely across the U.S.-Canada border. It reads in pertinent part as follows:
It is agreed that it shall at all Times be free to His Majesty’s Subjects, and to the Citizens of the United States, and also to the Indians dwelling on either side of the said Boundary Line freely to pass and repass by Land, or Inland Navigation, into the respective Territories and Countries of the Two Parties on the Continent of America.
This two-century-old treaty provision remains alive in U.S. immigration law, though it is not being applied in its original form. In 1928, U.S. Congress passed legislation codified at 8 USC §226a to implement U.S. obligations under the Jay Treaty. The 1928 legislation had no blood quantum requirement but did restrict the benefit of admission by adding that adopted tribal members could not enjoy the benefit of free passage. In the years that followed, the Board of Immigration Appeals (BIA) interpreted §226a along political lines. For example, an early BIA case on the subject is Matter of S–, in which a non-native Canadian woman married a native Canadian man, thereby gaining her tribal membership according to the rules of the tribe. Her claim to right-of-passage was vindicated by the BIA, which determined that, with the exception of the statute’s bar against membership-by-adoption, the Jay Treaty intended to define “American Indian” along political affiliation lines. Also of note in Matter of S– is the liberal degree of deference given by the BIA to the tribe’s own membership requirements. Nevertheless, this era of construction along political lines would not last.
I.b Interpretation of the Jay Treaty shifted to a race-based approach in the mid-20th century
In 1947 a federal district court in New York considered the case of United States ex rel. Goodwin v. Karnuth, which presented facts converse to Matter of S–. In Goodwin, a Canadian-born native woman had married a non-native man, thereby losing her tribal status under then-standing Canadian law. While present in the United States she was placed in deportation proceedings, which she challenged based on §226a, the predecessor to INA §289. The federal court determined that despite being stripped of her political affiliation from the tribe, she was still entitled to the benefits of §226a because she was of tribal blood, thereby relying on racial connotations to establish her inclusion.
While Matter of S– was an administrative decision, Goodwin was the result of the same issue being decided by a federal court. This decision was made in a time that the federal government was transitioning into a period of Indian policy known as the “Termination Era.” This period was marked by federal actions intended to dissipate its trust relationship with the natives, curtail tribal sovereignty, and disencumber tribal land for federal government use, often by integrating natives into the American lifestyle and minimizing the importance of tribal membership and decreasing the number of tribal members. This overarching federal goal was consistent with the Goodwin decision, which shifted the Jay Treaty interpretation away from the recognition of membership as decided by sovereign tribes and shifted towards a race-based interpretation, which would also result in a more narrow class of indigenous persons who could enjoy free-passage.
The Goodwin decision ushered in a new era of Jay Treaty interpretation in which “American Indian” was determined along racial lines instead of political ones. In 1952, shortly after this decision, Congress repealed 8 USC §226a and replaced it with INA §289, which is still good law and reads 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. [Emphasis added.]
Thus, the amended U.S. version of its Jay Treaty obligations imposes a significant restriction on the inherent indigenous right of free passage recognized in the treaty.
The statutory blood quantum requirement of INA §289 is a significant restriction on who can exercise their right of free passage compared to those contemplated in the Jay Treaty, and one that deserves reconsideration in light of antidiscrimination provisions in U.S. immigration law, as well as modern trends in federal Indian law and international law. Whether or not Congress’s intent in setting the 50 percent threshold of racial purity was motivated by “Termination Era” goals of eradicating tribal sovereignty and society, the blood quantum requirement in INA §289 could rightly be seen as racial discrimination, a trespass to tribal sovereignty, and a failure of U.S. international political obligations regarding indigenous self-determination. The fact that INA §289 deviates significantly from the treaty on which it is based is not a cause of action to litigate the antiquated statute, though other causes of action could be entertained.
II. INA §289’s Deviation from the Jay Treaty is Not Likely Vulnerable to Legal Challenge
The material deviation of INA §289 from the Jay Treaty on which it is based is not a cause of action in U.S. courts, though they would entertain other causes of action in litigation over the statute, such as antidiscrimination (see infra Section III.a). The interplay between international treaties and federal statutes makes a legal challenge based solely on the deviation unlikely to succeed in this case due to the non-self-executing nature of the Jay Treaty, Congress’s plenary power over immigration, and other caselaw on the subject.
II.a The Jay Treaty is not enforceable in U.S. courts because it is non-self-executing and must rely upon an implementing statute to become enforceable
International treaties are considered “the law of the land” just like congressional statutes, but they are not automatically enforceable in U.S. courts, as explained by the U.S. Supreme Court in Medellin v. Texas. That case made clear that treaty obligations come in two varieties: self-executing and non-self-executing. The Court distinguished “between treaties that automatically have effect as domestic law, and those that—while they constitute international law commitments—do not by themselves function as binding federal law.”
In Medellin, the Court was presented with the question of whether an opinion from the International Court of Justice (ICJ) was binding on U.S. courts by virtue of the United States—at the time—being a party to a treaty in which it agreed to ICJ jurisdiction and certain ICJ protocols. The Court looked at numerous factors to determine whether a treaty is self-executing, or whether only an implementing statute can provide a right of action. In particular, it noted that the language of the relevant treaty obligation did not “indicate that the Senate that ratified the [treaty] intended to vest [it] with immediate legal effect in domestic courts” and that instead the treaty language “[called] upon governments to take certain action.” The Court ultimately held that the relevant treaty was not self-executing and therefore no private right of action existed unless and until Congress enacted an implementing statute.
Similar to the treaty in Medellin, the Jay Treaty language does not suggest that it was intended to be self-executing. For example, Article III of the Jay Treaty, which deals with the indigenous right of free passage, reads in part: “It is agreed, that the respective Governments will mutually promote this amicable Intercourse, by causing speedy and impartial Justice to be done, and necessary protection to be extended, to all who may be concerned therein” (emphasis added). This language implies that the Jay Treaty was intended to be non-self-executing and therefore can only be enforced domestically through its implementing statute. As such, a Canadian-born tribal member cannot seek judicial relief in U.S. courts for suspected immigration violations based solely on the treaty.
II.b The material deviation of INA §289 from the Jay Treaty is not likely to be vindicated in U.S. courts
The Jay Treaty was not a grant of the right of free passage to Canadian-born natives but rather a recognition of the indigenous population’s inherent right of free passage. This inherent right has been severely restricted by the addition of a blood quantum requirement in INA §289. But a lateral attack on the statute based on its material and substantive departure from the Jay Treaty is likely to fail for a number of reasons.
Established precedent holds that when statutes and treaties conflict one another, each being “the supreme law of the land,” that which is “last in date must prevail in the courts.” In regard to indigenous free passage, INA §289 would be considered the governing law because it was enacted more than a century after the Jay Treaty. Accordingly, there is no recourse in U.S. courts based solely on the fact that a statute deviates from the treaty it is intended to implement, no matter how material the deviation. Making litigation more difficult is the fact that Congress has plenary power over immigration laws.
Congress can enact statutes that contradict international treaties. The indigenous right of free passage in the Jay Treaty has been held as above the reproach of immigration laws unless specifically exempted. The addition of the blood quantum requirement in INA §289 would likely be considered a very specific exemption that would be upheld under existing precedent.
The U.S. Supreme Court considered this subject during the Chinese Exclusion Case, or Chae Chan Ping v. United States. The Chinese Exclusion Case involved an 1868 treaty between the United States and China that granted certain immigration benefits to Chinese nationals. Years later, Congress passed the Chinese Exclusion Act of 1882 and the Scott Act of 1888, which collectively curtailed the immigration benefits previously granted to Chinese nationals by treaty. Mr. Chae Chan Ping was in the middle of returning to the United States from a visit to China when Congress changed its policy on Chinese immigration, suddenly rendering defunct his reentry permit. He filed suit after being excluded at the border and his case reached the Supreme Court, which affirmed his exclusion despite the fact that it violated the treaty with China. The Court espoused the plenary nature of Congress’s power over immigration, stating the following:
The powers of government are delegated in trust to the United States, and are incapable of transfer to any other parties. . . . The exercise of these public trusts is not the subject of barter or contract. Whatever license, therefore, Chinese laborers may have obtained [to reenter the United States] is held at the will of the government, revocable at any time, at its pleasure.
While federal courts might entertain a lawsuit based on a different cause of cause of action (see infra Section III.a), they are unlikely to order that the language of a statute be changed solely because it deviates from the treaty on which it is based. Accordingly, any challenge to INA §289 would need to be based on other causes of action, or Congress could modify the language of INA §289 on its own accord. Numerous evolutions in the legal and social landscapes that touch on this subject matter indicate that social trends are no longer in line with the race-based approach in INA §289, and that the blood quantum requirement is out of line with U.S. immigration law and modern practices regarding the concepts of tribal sovereignty and self-determination.
III. Modern Legal Trends Are Not Ideologically Aligned with the Blood Quantum Requirement of INA §289
Despite the difficulty of a legal challenge to the INA’s current blood quantum requirement for Canadian-born indigenous persons who wish to cross the U.S.-Canada border, a number of legal developments have occurred since the 1952 passage of INA §289 that are ideologically incongruent with the statute as it now stands. This article proposes that current legal trends in federal Indian law and international human rights law would be in line with a congressional reconsideration of the blood quantum requirement in INA §289. Doing so would bolster that statute’s compliance with antidiscrimination provisions of the INA and reaffirm modern U.S. commitments to tribal sovereignty as well as the related concept of self-determination.
III.a The current language of INA §289 is out of line with the antidiscrimination provisions of the Immigration and Nationality Act
INA §289 acknowledges the tribal right of free-passage as memorialized in the Jay Treaty, but refuses that right to tribal members born in Canada who lack the sufficient quantum of “blood of the American Indian race.” This requirement, absent in the treaty itself, is tantamount to discrimination based on racial impurity, depriving tribal members of their treaty-protected right of free passage, and in effect, punishing tribal members because of the miscegenation of their ancestors.
The blood quantum requirement of INA §289 could be interpreted as a violation of the antidiscrimination provision of the INA, which provides at 8 USC §1152(a)(1)(A) that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence” (emphasis added). The Jay Treaty was originally interpreted according to an individual’s political affiliation with tribes rather than the current race-based interpretation of INA §289 (see supra Section I.a). A return to the political interpretation of “Indian” would insulate INA §289 against any claim of race-based discrimination.
The issue of discrimination in U.S. immigration law recently was in the world spotlight when President Trump issued an executive order (EO) suspending the entry of nationals from certain countries, known informally as the “travel ban.” Although the executive order purported to disqualify or preclude the admissibility of persons from certain countries, critics of the EO contended that in practice it essentially banned the admission of persons based on race and religion. Nationals of banned countries challenged the constitutionality of the travel ban in Trump v. Hawaii. In that litigation, the State of Hawaii and the aggrieved non-U.S. citizen plaintiffs claimed that the president’s executive order was discriminatory due to, inter alia, pre- and post-inauguration statements by the president that would lead a “reasonable observer [to] conclude that the Proclamation was motivated by anti-Muslim animus.”
The president’s first two attempts at imposing the travel ban were judicially estopped before his third attempt was affirmed by the Supreme Court after the addition of specific national-security concerns, the addition of some non-Muslim countries, and other procedural changes. The Court looked at the facial language of the president’s order, ruling that “The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.” The Court upheld the executive order.
Unlike the travel ban, the statutory language of INA §289 is facially race-based, requiring at least 50 percent “blood of the American Indian race.” Further distinguishing the travel ban from INA §289 is the fact that the former was based on and judicially upheld because of presidential powers during exigent circumstances, while the latter is a congressional creation that is not based on any national security interest or other exigency. These distinctions would support a lawsuit against the U.S. government for the race-based discrimination of INA §289, as would other precedent regarding the INA’s antidiscrimination provisions.
The antidiscrimination aspect of the INA was also discussed in the LAVAS case (filed by the group named Legal Assistance for Vietnamese Asylum Seekers). In that case, Vietnamese refugees who had escaped their war-torn country into Hong Kong were refused consular processing by U.S. officials in the Hong Kong consulate because of a new policy issued in reaction to the high number of Vietnamese refugees. They filed suit, claiming that the consulate’s refusal to serve them was a violation of the INA’s antidiscrimination law in 8 USC §1152(a).
The government argued that it must merely demonstrate a rational basis for the discriminatory action being taken, which it stated was “the goal of encouraging voluntary repatriation” of Vietnamese nationals to Vietnam. But the D.C. Circuit Court of Appeals reversed and remanded the case, stating that the government’s actions should be judged with a higher scrutiny than mere rational basis. It said, “While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling — perhaps a national emergency” (emphasis added).
The dicta in the LAVAS case indicates that discriminatory immigration laws are held to a strict scrutiny standard: i.e., the discriminatory action must be in furtherance of a compelling government interest and must be narrowly tailored to achieve that interest—the highest level of judicial scrutiny. Even without explicitly specifying that this matter was held to strict scrutiny, the court was clear that discriminatory actions by Congress would only be approved in response to the “most compelling” circumstances.” That court even cited another case that stated that “under 8 U.S.C. Sec. 1152(a), INS has no authority to discriminate on the basis of national origin, except perhaps by promulgating regulations in a time of national emergency.” Just like for the cessation of consular processing for Vietnamese nationals in the LAVAS case, the government has not espoused any exigent reasons to discriminate against those Canadian-born indigenous persons whose racial composition is below 50 percent blood quantum.
The above cases demonstrate that 8 USC §1152(a) prohibits immigration laws from discriminating on the basis of race, religion, or nationality in the absence of a national exigency. Accordingly, these cases support the proposition that the blood quantum requirement in INA §289 is a violation of – or at least offends the thrust of — the INA’s antidiscrimination provision in 8 USC §1152(a) because it treats Canadian-born indigenous persons differently on the basis of their racial composition. Among the Canadian-born indigenous persons whose free passage was recognized in the Jay Treaty, INA §289 treats the tribal member having at least 50 percent “blood of the American Indian race” differently from a person with a lower blood quantum.
The language of the Jay Treaty, especially as it was originally interpreted, would not be considered racially discriminatory because it treated the term “Indian” as a political designation instead of a racial one. Congress can cure the facially discriminatory nature of INA §289 by rescinding its blood quantum requirement and determining qualification based on political affiliation with recognized indigenous groups. This modification would not only bolster INA §289’s compliance with antidiscrimination provisions of the INA, but it would also bring the government’s approach to that statute more in line with progressive legal trends relating to tribal sovereignty and self-determination.
III.b The principle of tribal sovereignty is offended by the blood quantum requirement of INA §289
The United States’ relationship with its “domestic dependent” tribes is a unique one in which federally recognized tribes are considered sovereign entities, but are nonetheless under the protection and plenary power of Congress. Of utmost importance in this ward-guardian relationship is the preservation of tribal sovereignty to the fullest extent permissible under the U.S. Constitution. Although this government responsibility does not extend to tribes or tribal members in Canada, the principle of indigenous sovereignty compels the U.S. to treat indigenous populations on both sides of the border in an ideologically and practically consistent manner.
A key component of tribal sovereignty is the question of “who:” who gets to become a member, who gets to make the rules of membership, who gets to make membership decisions. The U.S. government ultimately leaves this question to each tribe, stating on the official Department of Interior website that “Tribal enrollment criteria are set forth in tribal constitutions, articles of incorporation or ordinances. The criterion varies from tribe to tribe, so uniform membership requirements do not exist.” Some situations may seem like exceptions, but they are not. For example, some tribes’ membership decisions are reviewed by U.S. federal agencies, but this is because those tribes drafted constitutions in which they expressly ceded certain membership decisions to the U.S. Bureau of Indian Affairs. The tribal sovereignty wasn’t destroyed but rather was affirmatively exercised in a way that invited U.S. involvement.
A more pertinent example of tribal sovereignty involving the United States is the Cherokee Freedmen controversy, recently settled in Cherokee Nation v. Nash, in which a tribal scheme to disenroll lineal members of their former slaves was barred based on a treaty between the United States and the tribe. The Nash controversy arose in the 1990s when the Cherokee Nation began rejecting qualified membership applicants and eventually disenrolled members whose claims were based on lineal descendancy from the “freedmen” tribal members, former black slaves of the Cherokee who became members of the tribe according to an 1866 treaty with the United States after the Civil War. In 2007 the Cherokee Nation modified its constitution to eject the freedmen descendants by limiting citizenship to “to only those persons who were Cherokee, Shawnee, or Delaware by blood.” The aggrieved descendants of the freedmen filed suit. A decade of litigation culminated in the 2017 decision by the D.C. federal district court, which held that because the Cherokee nation endowed the freedmen and their descendants with membership, they were to be treated on equal-footing to native-blooded members of the tribe, thereby barring the disenrollment of the freedmen descendants.
The Nash case is relevant because of its bearing on the modern approach to tribal sovereignty, membership decisions, and the definition of “American Indian.” The Cherokee Nation had ultimate sovereignty over its membership decisions, which it modified by treaty to include the freedmen, and only triggered U.S. involvement when the Cherokee violated a treaty they signed with the United States decades ago. Even though the U.S. government held the tribes to the terms of the 1866 treaty, it was merely enforcing a decades-old membership decision that the tribe made by treaty in its sovereign capacity. In this sense, the government’s action reflects respect for the tribe’s sovereignty by enforcing the tribe’s own treaty obligations regarding membership.
The statute at INA §289 is a unique U.S. immigration law that deals with indigenous status, and it should ideally be consistent with U.S. federal Indian laws. Though they are distinct legal subject matters, they both deal with U.S. policy towards indigenous peoples. Accordingly, they should be guided by consistent principles. To demonstrate the current inconsistency in the two, imagine if the Cherokee Nation’s ancestral territory straddled the U.S.-Canada border. How would the U.S. government apply the ruling in Nash? To only recognize the citizenship of freedmen descendants on one side of the border would be an absurd application of the decision, but the blood quantum requirement of INA §289 would not give a Canadian-born freedman descendant the same rights as the members of his tribe with “blood of the American Indian race,” as Nash requires. The Nash opinion states that the freedmen descendants “have a right to citizenship in the Cherokee Nation that is coextensive with the rights of native Cherokees.”
The race-based interpretation of “American Indian” being applied in the immigration context under INA §289 is ideologically incongruent with the government’s position in Nash. In Nash, the U.S. government enforced a treaty that was clearly based on political status, and not race. In light of the recent landmark decision in Nash, it is time for Congress to reexamine the issue and increase respect for tribal sovereignty by removing the blood quantum requirements from INA §289.
III.c International obligations to respect self-determination will be advanced by the removal of blood quantum requirements from INA §289
In addition to its self-imposed ward-guardian obligations to its domestic dependent tribes, the United States also has made international commitments to respect the self-determination of such tribes under the recent United Nations Declaration on the Rights of Indigenous Peoples (U.N. DRIP). Self-determination, closely related to tribal sovereignty, is the idea that a group of affiliated peoples can “freely determine their political status and freely pursue their economic, social and cultural development.” The United States expressed its support for the U.N. DRIP in 2010, agreeing to adhere to international law obligations to treat the provisions therein as the “minimum standards for the survival, dignity and well-being of the indigenous peoples of the world” (emphasis added).
Like many international human-rights instruments, the U.N. DRIP is not strictly binding and it is not a self-executing treaty. Nonetheless, the United States has willfully expressed support for it, and therefore assented to a number of provisions having a direct bearing on the application of INA §289, including provisions on border crossings and membership determinations. For example, Article 36 of the U.N. DRIP is directly on point regarding this subject, providing:
Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.
States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.
The language of Article 36 makes clear that the U.S. commitment to allow free passage for indigenous peoples is to be based on their membership, and the U.N. DRIP does not qualify this obligation with race-related requirements such as blood-quantum. Notably, the U.N. DRIP does not provide a definition for indigenous peoples. Rather, it places membership decisions squarely with the tribes themselves, stating in Article 33:
Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions. This does not impair the right of indigenous individuals to obtain citizenship of the States in which they live.
The concept that tribes should choose and apply their own membership rules is one that touches on both sovereignty and self-determination. This is the foundation of the “political” approach to defining “American Indian.” Indigenous tribes should have the right to decide in a sovereign capacity whether or not to require a blood quantum for membership, if one is to exist for any purpose. In the absence of such a requirement by the tribe itself, any denial of benefits (such as free passage under INA §289) based on insufficient blood quantum is an infringement of indigenous rights, placing the United States in contravention to its political obligations under the U.N. DRIP. Accordingly, U.S. political commitments in the U.N. DRIP would be greatly advanced by a congressional rescission of the blood quantum requirement from INA §289.
The blood quantum requirement in INA §289 does not exist in the Jay Treaty. The U.S. definition of “American Indian” at the time that INA §289 was enacted was based on racial factors, an approach that this article suggests is antiquated and most likely in violation of the spirit, if not the letter, of the antidiscrimination provisions in immigration law.
Precedent shows that immigration laws that distinguish classes based on race or nationality must pass strict scrutiny, and the blood quantum requirement in INA §289 is susceptible to failing even the more lax rational-basis test. Further, there have been major shifts in federal Indian law and international law since 1952, when that statute was enacted. The 2010 U.S. accession to the U.N. Declaration of the Rights of Indigenous Peoples introduced an international political commitment to respect tribal free-passage as well as tribal membership decisions. The 2017 decision in Cherokee Nation v. Nash was a watermark decision upholding a definition of membership based on political connotations.
These important developments indicate a progressive new approach to the relationship between the rights of indigenous peoples and the territories they may occupy, both foreign and abroad. These evolutions in indigenous relations should demonstrate to Congress that the United States is committed to fully respecting tribal sovereignty and membership on a political basis instead of perpetuating the current enforcement of vestigial race-based requirements. Elimination of the blood quantum requirement of INA §289 would bring U.S. immigration laws in line with immigration antidiscrimination provisions, modern federal Indian law principles, and U.S. international obligations under the U.N. DRIP. As such, this article urges Congress to rescind the blood quantum requirement of INA §289 and fully implement the Jay Treaty by defining “American Indian” for immigration purposes along political lines according to the membership decisions of recognized indigenous groups.
 Immigration and Nationality Act (INA) §289 is codified at 8 USC §1359.
 Department of Homeland Security, United States Citizenship and Immigration Services, Adjudicator’s Field Manual, Redacted Public Version, 23.8 (“Section 289 Cases”), available at www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/0-0-0-8624/0-0-0-10065.html.
 Treaty of Amity, Commerce, and Navigation, Between His Britannick Majesty;—and the United States of America, By Their President, with the Advice and Consent of Their Senate, Nov. 19, 1794, U.S.-U.K., T.S. No. 105 [hereinafter Jay Treaty].
 Id. art. III (emphasis added).
 An Act To Exempt American Indians born in Canada from operation of the Immigration Act of 1924, Pub. L. No. 234, ch. 308, 45 Stat. 401 (Apr. 2, 1928) (formerly codified at 8 USC §226a, reading: “Be it enacted [that the Immigration Act of 1924] shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption.”
 In the Matter of S–, 1 I&N Dec. 309 (BIA 1942).
 United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660 (W.D.N.Y. 1947).
 Charles F. Wilkinson and Eric R. Biggs, The Evolution of the Termination Policy, 5 Am. Indian L. Rev. 139, 145 (1977).
 Id. at 145–50.
 552 U.S. 491 (2008).
 Id. at 504.
 Id. at 508.
 Jay Treaty, supra note 4, at art. III.
 J. Ribas y Hijo v. United States, 194 U.S. 315, 324 (1904).
 For example, U.S. immigration laws on refugees deviate from international laws on refugees in conventions to which the United States is a party. See generally, Note: American Courts and the U.N. High Commissioner for Refugees: A Need for Harmony in the Face of a Refugee Crisis, 131 Harv. L. Rev. 1399 (2018).
 See, e.g., United States v. McCandless, 18 F.2d 282 (E.D. Pa. 1927), stating, “The turning point of the cause is [whether] the Indians are included among the members of the alien nations whose admission to our country is controlled and regulated by the existing immigration laws. The answer, it seems to us, is a negative one. From the Indian viewpoint, he crosses no boundary line. For him this does not exist.”
 Chae Chan Ping v. United States, 130 U.S. 581 (1889).
 Id. at 590.
 Id. at 592–99.
 Id. at 582.
 INA §289.
 Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017), expanded by Proclamation No. 9,645 (Sept. 24, 2017), suspending the entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.
 Trump v. Hawaii, 585 U.S. ___ , 138 S. Ct. 2392 (2018).
 Id. (Sotomayor, dissenting).
 Id., slip op. at 2–8.
 Id. slip op. at 34.
 Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State Bureau of Consular Affairs, 45 F.3d 469 (D.C. Cir. 1995).
 Id. at 470–71.
 Id. at 472–73.
 Id. at 473.
 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831).
 E.g., Miranda v. Jewell, No. 15-55245, ¶ 6 (9th Cir. Dec. 9, 2016), https://cdn.ca9.uscourts.gov/datastore/memoranda/2016/12/19/15-55245.pdf. See also 25 CFR §§62.2, 62.10.
 Cherokee Nation v. Nash, No. 13-01313 (D.D.C. Aug. 30, 2017), https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv1313-248.
 Id. at 2.
 Id. at 34.
 Id. at 76–78.
 Id. at 77.
 Id. at 78.
 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), art.46 I.L.M. 1013 (2007) [hereinafter U.N. DRIP].
 U.N. DRIP, art. 3.
 See Remarks at the White House Tribal Nations Conference, 2010 Daily Comp. Pres. Doc. 201001076 (Dec. 16, 2010), www.gpo.gov/fdsys/pkg/DCPD-201001076/pdf/DCPD-201001076.pdf. See also Dep’t of State, Announcement of U.S. Support for the United Nations Declaration on the Rights of Indigenous Peoples (2010), https://2009-2017.state.gov/documents/organization/154782.pdf (offering review of U.S. position on the Declaration).
 U.N. DRIP, art. 43.
www.Pilehvar.com / IG: @pilehvarlaw
Taymoor M. Pilehvar is a U.S. immigration attorney out of Fort Lauderdale, Florida. He is a frequent volunteer for the Florida Immigrant Coalition and Americans for Immigrant Justice. Mr. Pilehvar serves as alumnus advisor to the Center for International Business and Human Rights at the University of Oklahoma College of Law, where he attained his J.D. and served as editor for the American Indian Law Review. Mr. Pilehvar has presented on business immigration strategies, corporate compliance, and other immigration matters. He is also a repeat invitee to an international law conference at the University of Manitoba as a panelist presenter and was chosen for publication in the textbook Nuclear Non-Proliferation in International Law (vol. IV) for his article on indigenous engagement in the uranium extraction industry.
Hon. Lory D. Rosenberg
Collaborator and Legal Mentor
Lory D. Rosenberg is the CEO of IDEAS Consultation and Coaching, a senior advisor and attorney at Immigrant Defenders Law Group, and a sought-after immigration lawyer, mentor, and certified professional and personal empowerment coach. Ms. Rosenberg provides cutting-edge legal analysis and strategies to resolve complex cases and appeals, and helps attorneys overcome business, personal, and financial blocks, manage stress and mindset challenges, and take action to reconnect with their vision of making a difference. A national speaker and trainer, Ms. Rosenberg is active in efforts to defend due process and humanize brutal immigration enforcement processes. She has served as an appellate judge on the Board of Immigration Appeals, is co-author of Immigration Law and Crimes, and was an adjunct professor at American University, Washington College of Law. Ms. Rosenberg has practiced immigration defense law for over 35 years as a director of the AIC Legal Action Center, director of the NLADA Defending Immigrants Partnership, counsel for immigrant and refugee clients in legal services and private practice, and founder of the Centro Presente asylum seekers’ pro bono program. Ms. Rosenberg is the recipient of AILA’s Arthur Helton Human Rights Award, and the Edith Lowenstein Award for Advancing the Practice of Immigration Law.