by Michael Guare, Esq.
Wabanaki Legal News, Spring 2009 edition
In the last issue of Wabanaki Legal News, we reported on new border crossing rules. Beginning on June 1, 2009 most people entering the United States by land will need a passport or a passport card (see Passport Cards below).
The new rule has not changed. It will go into effect on June 1. However, the new rule says that there are exceptions for Indians under some circumstances.
The federal government of Canada is developing a new version of the Certificate of Indian Status card. The Certificate of Indian Status card is often called the “INAC” card. The new INAC card will be called the Secure Certificate of Indian Status. Hopefully, the new card will be ready by June. If the U.S. government approves the new card, the new card may be used instead of a passport to enter the United States by land. Remember that current versions of the Indian Status card will not be accepted at the U.S. border instead of a passport. Learn more from the Western Hemisphere Travel Initiative.
The new passport rule allows any federally-recognized tribe in the United States to produce a new tribal ID card which can be used instead of a passport or a passport card to enter the United States by land. There are several issues involved with this. These issues include strict security requirements, access to tribal membership records, cost and other matters. The Penobscot Nation has decided not to produce new ID cards. The Passamaquoddy Tribe at Sipayik is interested in producing new ID cards. However, due to the cost and other issues, the Tribe is unable to do so at the present time. The Tribe hopes to be able to produce new ID cards at some point in the future. We do not believe that the Passamaquoddy Tribe at Indian Township plans to produce a new ID card, but we were not able to confirm that by the time this paper was published. However, both the Aroostook Band of Micmacs and the Houlton Band of Maliseets may produce new tribal ID cards. The U.S. Government would have to approve the new cards. If that happens, a person who has one of the new cards will be able to enter the United States by land without a passport or a passport card. No new ID cards have been produced or approved yet, however. For now, remember that as of June 1, if you travel outside the United States you will need a passport or a passport card to re-enter the United States by land unless your tribe produces a new ID card which is approved by the U.S. government.
The rules discussed above apply only to people entering the United States by land. Anyone entering the United States by air from another country must have a passport. There are no exceptions to this rule for Indians. If you are flying into the United States from another country, you must have a passport even if you are an Indian.
However, for flights within the United States (domestic flights), the rules say that existing tribal ID cards should be accepted as proof of identity. Nevertheless, if you have other forms of ID, it would be wise to have them with you, just in case.
A normal passport comes in the form of a small booklet. A U.S. citizen can obtain a document known as a passport card instead of a passport booklet. Passport cards are
considerably less expensive than passport booklets. However, a passport card can only be used to enter the United States from Canada, Mexico, Bermuda or the Caribbean by land or at a seaport. Passport cards cannot be used at all for international air travel. For more information, go to the U.S. State Department's travel page.
There are a few other documents which can be used instead of passports to enter the United States by land or by air. These documents don't have anything to do with a person's
status as an Indian. Rather, they are documents which can be used instead of a passport by anyone who is eligible to get one.
Under the Jay Treaty, as interpreted by the U.S. government, Canadian-born Indians with 50% or more Indian blood have the right to freely enter the United States by land. Nothing in the new rule changes the Jay Treaty. However, the new rule requires everyone who enters the United States to present a secure document that proves their identity. This includes U.S. citizens and citizens of other countries. It also includes people with Jay Treaty rights. Like everyone else, people with Jay Treaty rights will need to prove their identity with a secure document, such as a passport or a new secure INAC card, in order to cross the border.
Canadian-born Indians may also need to present proof that they have at least 50% Indian blood. It is important to remember that a passport does not prove blood quantum. An INAC card - even new secure INAC card - does not prove blood quantum, either. Therefore, if you have at least 50% Indian blood, you should bring proof of your blood quantum with you to the border. If you are asked for this proof and you do not have it, you may not be allowed to enter the United States.