Beginning June 1, 2009, new requirements for North American border crossings created additional restrictions on United States citizens, Canadians, Bermudians and American Indians in an effort called the Western Hemisphere Travel Initiative. Previously these citizens crossed U.S. borders with little documentation, but now most travelers need a passport for entry and re-entry.
On the U.S.-Canada border, the two countries have long discussed the Jay Treaty of 1794, which upheld the right of indigenous peoples to cross borders freely to conduct trade. The ability to cross the border unrestricted was considered an indigenous right because the Haudenosaunee as a political entity existed from time immemorial, before the formation of the U.S and Canadian governments.
After the War of 1812, the Treaty of Ghent intended to uphold the same rights for indigenous peoples on the U.S.-Canadian border but the Canadians did not ratify that part of the treaty, and therefore do not honor those articles within the Jay Treaty. The United States honors the Jay Treaty, and in the 1920s agreed to allow any “Canadian” Indian who was at least half Indian to traverse the American border according to the intent of the Jay Treaty.
The new border crossing rules are a product of the Intelligence Reform and Terrorism Prevention Act of 2004, which requires all travelers to present a passport or other document establishing identity of a traveler and their citizenship. The WHTI regulations include the ability of American Indian tribes to provide documents for their tribal members or citizens. Now, tribal governments must produce an identification card with a photograph and security measures that meet security standards similar to passports. A tribal member can enter and re-enter the U.S. with an approved, enhanced tribal identification card.
Similarly, the Canadian government has taken this occasion to improve the security of the Indian and Northern Affairs Canada cards, and plans to distribute the new cards by late 2009. Tribes must develop and finance an enhanced tribal card with their own resources, and so far few have produced cards that will gain approval of the Homeland Security Department.
Mexican citizens already had restrictive rules for entry into the U.S. Indigenous peoples in Mexico are not recognized officially as governments, and therefore there are no tribal identification cards for Indians residing in Mexico. Some tribes like the Yaqui, Tohono O’odham, Kumeyaay and Kickapoo have citizens on both sides of the southern border. There are no treaties between the U.S. and Mexico upholding indigenous rights to cross the border, even when tribal territories and communities are split by it. Many people from border tribes travel across the border for ceremonial, kinship and economic purposes.
Section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act enables the secretary of Homeland Security to waive all legal requirements that might impede security along our borders. In a letter dated Feb. 5, 2009, the American Bar Association wrote to Congress requesting joint hearings to oversee the secretary’s waiving of protections under the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, National Historic Preservation Act, and the Religious Freedom Restoration Act, mostly along the southern border.
The ABA supports enhanced homeland security, however, wanted more attention to protection of Indian rights. Congress is considering H.R. 1697, The Tribal Government Homeland Security Coordination and Integration Act, which will require the secretary of Homeland Security to create an Office of Tribal Government Homeland Security that will coordinate, develop readiness, and include Indian tribes in homeland security preparedness.
Tribal leaders, for the most part, have been cooperative with the new border crossing rules but attentive to the political rights of their citizens. They want to enhance national security through compliance and cooperation, but also want to uphold respect for indigenous rights.