by:Michael Guare, Esq.
Beginning on June 1, 2009 most people entering the United States by land will need a passport or a passport card.
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). See Wabanaki Legal News, Summer 2008, page 2.
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.
Canadian-Born Indians
The federal government of Canada has been 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. If the U.S. government approves the new card, it will be possible to use the new card instead of a passport to enter the United States by land.
However, the Canadian government has announced that the new Secure INAC card will not be ready by June 1. In response, the U.S. government has decided to accept the current version of the INAC card on a temporary basis. In other words, for now, people who have the current INAC card may present either their INAC card or a passport at the border.
Important! This is a temporary policy and may be changed at any time. We expect that once the Secure INAC cards are available, the current version of the INAC card will no longer be accepted at the border. When that happens, Canadian-born Indians will be required to present either a new Secure INAC card or a passport.
Learn more on-line at:
U.S.-Born Indians
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 new ID cards, 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.
Air Travel
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.
Passport Cards
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 http://travel.state.gov/passport/ppt_card/ppt_card_3926.html.
Other Documents
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. For more information, go to http://www.dhs.gov/xtrvlsec/crossingborders.
Jay Treaty
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 that 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.