For many, the concepts of belonging and homeland are seemingly fixed and inherent. They are not something that people often reflect on. However, when those seemingly fixed ideas begin to rattle, the concept of homeland becomes precarious, carrying a lingering weight rather than existing as an inherent part of being. In an instant, changing policies and colonization can seemingly minimize the concept of homeland to having the right piece of paper or political backing. The concept of a homeland is often taken for granted, yet for millions of people worldwide it is consumed by a struggle against shifting borders, forced migration, and political exclusion, something Indigenous peoples of North America know all too well.

Hundreds of years into policies meant to convert Indigenous homelands into the lands of modern nation-states, Indigenous communities continue to fight to preserve rights that are inseparable from their ancestral homelands. In North America, treaty protections remain a critical mechanism for safeguarding these rights.¹ The 1794 Treaty of Amity, Commerce, and Navigation between the ted States and Great Britain, also referred to as the Jay Treaty, recognized the right of American Indians to freely cross the border between the United States and what is now Canada. Although this provision has been codified into U.S. law, its application has been narrowly restricted through a 50% blood quantum requirement. This article examines the modern application of the Jay Treaty’s free passage provision and argues that the right should be expanded to more accurately reflect contemporary Indigenous identities and in recognition of inherent tribal sovereignty. Simultaneously, it cautions against overlooking the legal, administrative, and policy costs associated with such an expansion.

American Indian nations and their traditional territories long predate the modern border between the United States and Canada. This history is reflected in Article III of the Jay Treaty,

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 . . .²

As the “original inhabitants of the United States,” the federal government has long acknowledged that Indians possess an inherent right to free passage between the U.S. and Canadian border.³ Nonetheless, in hopes of remedying confusion at the border, on April 2, 1928, Congress codified the right in the Immigration and Nationality Act (INA).⁴

INA Section 289 provides that, “[n]othing in this subchapter [Subchapter II-Immigration] 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.”⁵ Notably, the provision’s broad language appears to reaffirm the lawmakers’ belief in the inherent right to free passage, regardless of the status of the Jay Treaty. Although beyond the scope of this article, it would be worth exploring whether INA section 289 clarifies that American Indians born in Canada are not immigrants due to their inherent right to free passage rather than allowing free passage to American Indians born in Canada.

This, in part, is what makes INA section 289 unlike any other provision in immigration law. Section 289 effectively exempts American Indians born in Canada who possess at least a 50% blood quantum from the majority of the Immigration and Nationality Act’s regulatory scheme. Most notably, Subchapter II of the INA, which governs core immigration matters such as admission, documentary requirements, and removal, does not apply to this group. As a result, only limited portions of the Act, including the provisions addressing General Provisions, Nationality and Naturalization, Refugee Assistance, and Alien Terrorist Removal Procedures, remain applicable.⁶

What does this mean in practice, and why is this provision significant? U.S. immigration laws and policies can be daunting, perhaps now more than ever. The wait for the correct document, stamp, or status can separate spouses across continents, delay children’s reunification with their mothers for years, or prevent professionals from serving their employers or advancing in their fields due to where they were born, decisions made by parents while a child, or a seemingly minor mistake made decades earlier. Yet for American Indians born in Canada, much of this system is bypassed entirely. Under Section 289 of the Immigration and Nationality Act, American Indians may enter the United States to work, study, retire, invest, or immigrate without a visa or prior authorization from the Department of Homeland Security.⁷ When arriving at a port of entry, one essential condition applies: the individual must possess at least 50% American Indian blood quantum.⁸ This requirement does not depend on tribal enrollment; rather, it is strictly an ancestry-based criterion and recognizes blood quantum from a First Nation, Native American Tribe, or a combination of the two that predates the arrival of Europeans.⁹ Accordingly, even if an individual is not an enrolled member of a tribe, he or she may still qualify under this provision so long as that individual can demonstrate lineage establishing the requisite 50% blood quantum, which is sufficient to permit entry into the United States.¹⁰

It seems simple enough, but this single requirement creates obstacles that impede what was described as an inherent right to passage. The blood quantum requirement is particularly troubling given the historical context in which these policies emerged. Blood quantum requirements have long functioned as tools of colonization, cultural erasure, and the systematic weakening of tribal sovereignty. Imposing a tool of colonial policy, while purporting to protect an inherent right, is fundamentally counterintuitive. Tribal nations are not temporary or self-extinguishing; they are enduring political and cultural communities. Although American Indian nations and traditions have evolved, this evolution mirrors that of almost every American society over time. Against this reality, INA Section 289 fails to reflect contemporary Indigenous identities or the lived realities of American Indian families. Instead, it perpetuates a framework that measures Indigeneity by a diminishing mathematical fraction, rather than by continuity, community, and sovereign identity. quantum itself is a race-based construct cemented in US federal Indian law for the purposes of land allotment.¹¹ In an analysis of blood quantum as it has been applied throughout U.S. legal history, what started as a means of determining descent and distribution became a means for disadvantaging minority groups.¹² In the case of American Indians, a means to diminish and ultimately eliminate American Indian identity. Although a majority of tribes today use some blood quantum metric as a prerequisite for enrollment, there has been a shift away from blood quantum policies to alternative enrollment requirements.¹³ As Steve Russell aptly noted in his article, “The Racial Paradox of Tribal Citizenship,” “Citizenship by blood quantum alone is a guarantee of physical extinction. Know the tribal population, the required blood quantum, birth and death rates, rate of exogamous marriage, and the date of extinction is easily calculated. This is not opinion. This is arithmetic.”¹⁴ INA Section 289’s use of blood quantum for determining who is eligible for the benefit under this statute creates an unspoken expiration date on this benefit and impedes tribal sovereignty.

What lawmakers characterized as an inherent right when enacting Section 289 of the Immigration and Nationality Act is, in practice, treated as inherent only for those who can trace their lineage to at least 50% American Indian blood quantum. As a result, a mother who meets the 50% threshold may freely enter the United States, while her child, possessing only 25% blood quantum, would be rendered ineligible under the same provision. This rigid distinction forces families into impossible choices and underscores the human cost of the statute’s limitations. By restricting eligibility under INA Section 289 exclusively to those with 50% blood quantum, the statute offers a benefit that is theoretically available but practically constrained. It is akin to opening a public park with only a handful of benches: access exists, yet space is deliberately limited. In this way, the benefit is narrowly rationed, allowing only a shrinking subset of American Indians to take advantage of a right rooted in precolonial existence.

Additionally, the blood-quantum requirement imposed by INA Section 289 creates a substantial obstacle for American Indians who are descendants of Canadian First Nations. The problematic construct of blood quantum is distinctly American, as Canada, by contrast, does not maintain blood quantum records.¹⁵ As a result, American Indians who otherwise qualify under INA Section 289 may face significant difficulty assembling the documentation required for presentation to US Customs and Border Protection (CBP). This challenge is further compounded by the increasingly exacting evidentiary standards applied by CBP at ports of entry, making it more burdensome for eligible individuals to substantiate their eligibility under the statute. In the past, CBP allowed Canadian Indians who could demonstrate at least 50% blood quantum or any individual recognized as Indian by the Canadian government to enter per INA Section 289.¹⁶ However, per CBP, “To qualify for these privileges, eligible persons must provide evidence of their American Indian background at the port of entry. The documentation must be sufficient to show the bearer is at least 50% of the American Indian race.”¹⁷ Recent news outlets have reported CBP is adhering more closely to the statutory criteria and requiring probative evidence sufficient to establish at least 50% blood quantum.¹⁸ Essentially, INA Section 289 creates a benefit for American Indians born in Canada through a framework that relies on a blood quantum system Canada itself does not maintain. As such, eligible individuals are in the paradoxical position of proving eligibility under a standard largely foreign to their own governmental and tribal record-keeping practices.

Although INA Section 289 is no more than a single compound sentence, the second half of the compound sentence creates a major obstacle for American Indians born in Canada seeking admission into the United States. Advocates have called for reform to eliminate the bloodquantum requirement set forth in Section 289 of the Immigration and Nationality Act.¹⁹ While the need for such reform is compelling for the reasons discussed above, any effort to amend or challenge Section 289 warrants careful consideration, particularly given the potential legal and practical costs of unsettling the provision itself. By immigration-law standards, Section 289 is extraordinarily broad. With limited and narrow exceptions, there are no other groups where the INA’s provisions for inadmissibility and removal sweepingly do not apply to foreign nationals.²⁰ That statute’s broad language allows American Indians born in Canada to bypass much of the bureaucracy and avoid much of the uncertainty that defines the daily experience of countless noncitizens navigating the US immigration system. The magnitude of this benefit can be difficult to appreciate without firsthand exposure to that system’s complexity and rigidity. In this respect, Section 289 is something of a legal anomaly, an almost mythical exception within modern U.S. immigration law.

U.S. immigration policy is frequently at the center of political debate, with public opinion sharply divided. The current administration has disrupted long-established immigration policies and procedures, resulting in widespread confusion, mounting backlogs, and heightened unpredictability. Against this backdrop, elevating INA Section 289, along with its unusually broad benefits, for potential reform may produce the opposite of its intended effect. Rather than expanding access, such attention could prompt a reassessment of the statute by an administration inclined toward restriction, particularly if it views Section 289 as allowing a discrete group to bypass much of the Immigration and Nationality Act altogether. In an era marked by increasingly restrictive immigration laws and policies, this broader pattern raises a fundamental question: is the risk of narrowing Section 289 worth the potential reward of reform?