A-5882390
Decided by Board March 25, 1948
Canadian Indians — "American Indians born in Canada" — Meaning of these words in Act of April 2, 1928. (See I, I N. Dec. 309, 600.)
(1) The words "American Indians born in Canada" in the act of April 2, 1928, have an ethnological (by blood) connotation rather than a political one ("Indian" as defined by the Canadian "Indian Act.")
(2) Treaty border crossing rights under Jay Treaty of 1794 (recognized and restored after the War of 1812, by the Treaty of Ghent) were not lost by a full-blooded North American Indian born in Canada because she forfeited her political status as an "Indian" in Canada by marriage to a person of white race under the provisions of section 14 of the "Indian Act" of Canada.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
Act of 1917 — Admits the commission of and was convicted of a crime involving moral turpitude prior to entry, to wit: Adultery.
Act of 1929 — Previously arrested and deported-no permission to reapply.
BEFORE THE BOARD
Discussion: This case presents an appeal from the order of the Acting Commissioner dated October 1, 1947, affirming the excluding decision of a Board of Special Inquiry on the grounds set forth above.
The evidence establishes that appellant was born in Canada on September 5, 1905, on an Indian reserve of the Abenakis of Pierreville, of a full-blooded North American Indian. On November 22, 1946, she married a person of the white race, a native of Canada, who became naturalized a citizen of the United States on April 6, 1926.
By virtue of said marriage she lost her status as a North American Indian born in Canada, under section 14, Indian Act of Canada, Revised Statutes chapter 81; 1920, chapter 50, section II, which provides:
Any Indian woman who marries any person other than an Indian, or a non-treaty Indian, shall cease to be an Indian in every respect within the meaning of this act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semiannual distribution of their annuities, interest moneys, and reuts; but such income may be commuted to her at any time at 10 years' purchase, with the approval of the Superintendent General (Minister).
Section 2 (d) of the Canadian Indian Act defines "Indian" as follows:
(i) Any male person of Indian blood reputed to belong to a particular bond,
(ii) any child of such person,
(iii) any woman who is or was lawfully married to such person.
(Ch. 98, Revised Statutes of Canada, 1927.)
The act of April 2, 1928 (ch. 308, 45 Stat. 401) provides:
This chapter shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption.
In prior decisions involving the identical issue we adopted the political, as distinguished from the ethnological, interpretation of the meaning of "Indian," as used in the Canadian Indian Act ( Matters of S----, 56107/290; D----, 56128/331; L----, 56107/553; Oct. 1, 1942); Matter of G----, 5995790, June 19, 1947).
Counsel's principal contention is that the immigration laws do not apply to a North American Canadian Indian by blood, by virtue of the provisions of the act approved April 2, 1928, quoted above.
In U.S. ex rel. Goodwin v. Karnuth, 74 F. Supp. 660 (D.C.W.D.N.Y., Nov. 28, 1947, the court held that the words "American Indians born in Canada," as used in the act approved April 2, 1928, authorizing such persons to cross the Canadian border without being subject to immigration laws, must be given a racial and not a political connotation; that the rights of Indians under the Jay Treaty of 1794, authorizing passage across the Canadian boundary, was not abrogated by the War of 1812, but rather the Treaty of Ghent recognized and restored the Indian status of the Jay Treaty. Jay Treaty, article 3, 8 Stat. 117; Treaty of Ghent, article 9, 8 Stat. 222.
It is understood the Department will not appeal this decision.
Thus, so far as the 1924 Immigration Act is concerned, the appellant is entitled to cross and recross the border without impediment. However, appellant was convicted January 21, 1935, in Vermont, of the crime of adultery. Were she in the United States she could be made the subject of deportation proceedings. But even in such case the Indian may immediately, without any hindrance, return to the United States and remain until a new ground of deportation arises. It would seem, then, that deportation in such cases might appear to be a useless gesture, but this may not always follow as a practical measure ( Matter of A----, 56131/608, Nov. 13, 1943; Matter of P----, A-5966914, Dec. 12, 1946). The fact is, however, that appellant is not in the United States and the adultery charge will not serve to justify refusing her entry. The appeal must therefore be sustained.
Order: It is ordered that the appeal be sustained and the alien's entry authorized.