The federal government has updated its travel advice for the United States and is now urging First Nations people to carry a passport in addition to a status card when crossing the border.

Before this week, the government website said First Nations people could “freely” enter the United States for the purposes of employment, study, retirement, investing or immigration.

As of Thursday, the website has been updated with new guidelines.

The website now says First Nations people “may” be able to cross the Canada-U.S. border by land or water with their Secure Certificate of Indian Status, also known as a secure status card.

The website says acceptance of all status cards is “entirely at the discretion of U.S. officials.” Status cards and secure status cards aren’t accepted travel documents for air travel, it says.

When crossing the Canada-U.S. border, travellers are strongly urged to carry a valid passport and use a valid machine-readable secure status card, the website says.

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The government says that as of February 2019, all new and renewed secure status cards are issued with a machine-readable field. The government began issuing secure status cards in 2009, phasing out older laminated, paper or plastic versions of the cards.

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“While you may have previously crossed the Canada-U.S. border with only a secure status card, (Indigenous Services Canada) now strongly recommends also carrying a valid passport when travelling outside of Canada,” says the Government of Canada website.

The government says people registered under the Indian Act entering the U.S. to live or work may also be asked to provide documentation to “prove the percentage of Indian blood required under U.S. law.”

Mohawk Council of Kahnawake Grand Chief Cody Diabo, who serves as the co-chair of the Jay Treaty Border Alliance and sits in the Iroquois Caucus, said Canada should not be telling First Nations how to conduct themselves at the border and should instead recognize the Jay Treaty.

The Jay Treaty — which Canada does not recognize but the United States does — allows First Nations people born in Canada to freely enter the United States for employment, study, retirement, investment and immigration.

“Before they tell us what we need to cross the border with, they need to recognize that we have the free right by law to cross,” Diabo said.

“Our cards are enough with other documents listed in section 289 of the Immigration Act and upheld by the Jay Treaty.”

The Assembly of First Nations has warned First Nations people to be wary of crossing the border into the United States due to U.S. immigration enforcement raids and the detention of some Indigenous people.

AFN National Chief Cindy Woodhouse Nepinak has confirmed that at least one First Nations person had a negative encounter recently with U.S. Immigration and Customs Enforcement, better known as ICE, and that person has since returned to Canada.

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The case prompted the advocacy body to issue a statement warning First Nations members to make sure they have the right documentation and identification when crossing the border.

In a statement, Indigenous Services Canada said last month it had been made aware that some people have recently reported the confiscation or damage of status cards in the U.S. It said the department can issue emergency status cards and will expedite requests from people who have been affected.

Mississauga First Nation also warned its members against crossing the border, citing ICE’s recent detention of Indigenous people. Three Oglala Sioux Tribe members were detained at a homeless encampment by ICE agents in Minnesota earlier this year.

Several other First Nations have issued similar warnings, including Six Nations of the Grand River near Hamilton, Ont., and Garden River First Nation near Sault Ste. Marie, Ont.

The Jay Treaty Alliance, a body representing tribal governments and First Nations communities on both sides of the border, is encouraging First Nations people crossing the border to the U.S. to ensure they are carrying their familial lineage letter, status card, long-form birth certificate and government-issued photo ID.

U.S. tribal members are being encouraged to carry their tribal IDs, state-issued IDs or driver’s licences, or a U.S. passport.

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Two First Nations communities in Ontario have issued travel advisories urging caution when travelling to the U.S. and are underlining Indigenous rights under the 1794 Jay Treaty.

But what is the Jay Treaty and how does it relate to cross-border travel?

Right to freely pass into U.S.

The treaty was signed in 1794 between Great Britain and the United States and sets out that “American Indians” born in Canada have the right to freely pass into the U.S. for travel, for work or to live. They can also enter the U.S. freely for retirement or immigration.

“These rights have been identified as, it’s all of our rights as Indigenous Peoples in Canada to be able to cross the borders,” said Jessica Keeshig-Martin, acting chief of the Chippewas of Nawash Unceded First Nation. “These borders never existed; they’re fairly recent in terms of our timeline being here on Turtle Island, which we refer to as North America.”

The Chippewas of Nawash is one of the two First Nations in Ontario to issue a travel advisory in recent weeks.

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In their notice, they strongly advised each member who wishes to cross the Canada-U.S. land border to carry a valid, unexpired status card; other valid information; birth certificates with parental information and/or a Canadian passport.

The First Nation said the advisory was prompted by reports of First Nation and Native American members being detained and questioned by U.S. Immigration and Customs Enforcement (ICE).

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“We’ve had inquiries from our members of the Chippewas of Nawash who are travelling and visiting relatives or friends, or to work and attend meetings to the south of us and so there’s definite fear,” Keeshig-Martin said. “Folks have contacted me as well, fear of being questioned and detained by ICE.”

The Assembly of First Nations confirmed last month that at least one First Nations person recently had a negative encounter with ICE and has since returned to Canada.

Indigenous people urged to carry status card and passport

In an email to Global News, Indigenous Services Canada said it was aware some First Nations “have been in contact with their band to report incidents.”

“While you may have previously crossed the Canada-U.S. border with only a secure status card, ISC now strongly recommends also carrying a valid passport when travelling outside of Canada,” the ministry said in the email.

It added that acceptance of all status cards is “entirely at the discretion” of U.S. officials.

U.S. may request proof of Indigenous status

Amid concerns over U.S. travel, Saugeen First Nation in Ontario also issued a notice that suggests “exercising caution” if going south of the border.

While it notes that Section 289 of the U.S. Immigration and Nationality Act codifies rights from the Jay Treaty, members travelling south should still carry various documents.

It says members will need proof of lawful status through several documents, including a status card, a long-form birth certificate, a government-issued photo ID, a Form I-181 or I-551 (green card) if you have one, and what’s known as a blood quantum letter.

The letter is a requirement in which Indigenous people must prove they have 50 per cent blood quantum, showing the bearer of the letter is at least “50 per cent of the American Indian race,” according to the U.S. Embassy and Consulates in Canada.

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According to Indigenous Services Canada, such documentation must either come from a person’s First Nation or a letter of ancestry requested from the ministry.

The ministry adds a caution, though: “A letter of ancestry is an official document confirming registered ancestors, but, it does not list a person’s blood quantum. You may be asked for more documentation.”

The Chippewas of Nawash and Saugeen First Nation are just the latest First Nations communities to issue advisories since the new year.

Last month, the Okanagan Nation Alliance, which represents eight First Nation communities in British Columbia, issued its own, urging members “exercise extreme caution.”

“Although the Jay Treaty reaffirms our right to travel freely to and from the United States, we expect that not every federal law enforcement officer and ICE agent will be familiar with our rights to cross the border freely,” the alliance wrote in its advisory.

Alberta’s Blood Tribe Chief and Council also issued an advisory late last month urging members to use caution.

“Blood Tribe Chief and Council is urging Blood Tribe members to use caution when crossing the border into the United States, notwithstanding our inherent rights and the promises of the Jay Treaty, during the current time of political unrest,” the advisory said.

They added that Canadian federal certificates of Indian status have reportedly not been accepted as proof of blood quantum, and that such documentation must come directly from an individual’s First Nation.

The Assembly of First Nations, which has also issued its own advisory on U.S. travel, says in emergency cases, people can contact the Canadian Consulate.

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