Peter Roberts is a Canadian citizen and a member of the Campbell River Indian Band who, until two months ago, enjoyed unrestricted access to the United States — the right to work and live here if he wanted to.
The 54-year-old never has. A dentist with the fair complexion of his Ukrainian mother and the facial features of his full-blooded native dad, Roberts lives on the Tsawwassen Indian Reserve in British Columbia, just up the road from the U.S. border.
A little-known immigration law linked to a treaty the U.S. signed with Canadian bands more than 200 years ago entitles those with at least 50 percent native blood unquestioned access to the U.S. — the right to move freely across land originally theirs, as if the border wasn't there.
Two months ago on his way to church in nearby Point Roberts — a U.S. enclave accessible by land only through Canada, and where he owns property — Roberts was stopped and questioned. U.S. Customs and Border officers seized the special treaty-related green card he holds and ordered him to appear this Friday before an immigration judge.
The U.S. Department of Homeland Security is apparently questioning Roberts' lineage — whether he has sufficient Indian blood to qualify for unfettered U.S. access. Roberts and his attorney say they've not been advised of the specifics of the case, leaving them to conclude that the agency's doubts are based solely on his fair skin and curly hair.
"I guess in their eyes I don't have status, based on how I look," Roberts said.
Roberts' case comes as the federal government is working out the details of a security plan that by June 2009 will require everyone entering the U.S. by land to show a passport. Many U.S. tribes and Canadian bands have asked for an exemption from that requirement for their members.
At Roberts' hearing this Friday, attorneys for the government will ask an immigration judge to revoke all his indigenous rights to the U.S. An unfavorable ruling could make it difficult — if not impossible — for him to obtain permanent residence here if he ever sought it.
The outcome would likely not affect Roberts' ability to visit the U.S. as a Canadian citizen — not needing a visa, but with a limit on how long he can stay.
Immigration officials declined to discuss his case.
Roberts' attorney, Len Saunders of Blaine, said the case has no place in immigration court since the treaty from which his client derives his rights predates U.S. immigration law.
"What they are doing is stomping on the historical rights of native people who have free passage throughout North America," Saunders said. "Our concern is that this could set a bad precedent for other Jay Treaty holders."
What the treaty did
The Jay Treaty of 1794 allowed native North Americans free trade and travel between the U.S. and Canada, then a territory of Great Britain.
Their rights were later restated in U.S. immigration laws, extending to Canadian natives with at least 50 percent Indian blood. Canada does not offer reciprocity to U.S.-born Indians.
By law, Canada's native people — even those with a criminal record — cannot be denied entry to the U.S., and they cannot be deported.
To invoke their treaty rights at the border, they must present what's called a "blood quantum" letter from their bands detailing their lineage. The letter is often presented along with a status card, a standard, federally recognized photo ID that Canadian bands issue to their members.
To document their treaty status, simplify border crossings and avoid the need to always carry blood documents, families sometimes ask the U.S. government for special treaty-linked green cards — like Roberts' family did when he was a child.
But government lawyers say they have the right to revoke these cards, just as they do with regular green cards, if they believe the cards were improperly granted in the first place.
"Just because you've been given one doesn't mean you were given it correctly," said Dorothy Stefan, chief counsel for U.S. Immigration and Customs Enforcement. "You need to show that you're 50 percent — and that's where it becomes tricky. If you can't prove it ... you get a chance to go to court and prove you have status."
Saunders said the burden is on the government to prove Roberts is not what his blood documents show him to be — the grandson of full-blooded Campbell River Indians.
"We have letters from his band detailing my client's status going back to the 1800s," Saunders said.
In their request for exemption from next year's passport rules, bands and tribes have asked the U.S. government to recognize the cards they issue their members.
Mike Milne, spokesman for U.S. Customs and Border Protection, said the border rules require identification that includes a photo.
Cards issued by tribes and bands vary from one to another — some with photos and some without — so their request is a challenge.
Roberts has fond memories of trips his family made into the U.S. when he was a child and when crossing the border wasn't such a big deal.
His great-grandmother had family who were Lummi, and "I remember as a boy of 4 or 5 taking a boat across to Lummi; going to the canoe races."
As an adult, he came for dentistry conventions or to his vacation home in Point Roberts — sometimes carrying his green card, sometimes forgetting to bring it.
Roberts doesn't have a criminal record and said he never experienced border problems until last fall, when a guard at Point Roberts lectured him about the need to always show his green card when seeking entry.
He challenged the guard, invoking his treaty rights — and was denied entry.
After that, Roberts said, he was hassled each time — stopped, questioned at length, at times fingerprinted and at times turned away — always at Point Roberts, but never anywhere else.
In November, guards finally seized the card, granting him a temporary document to travel to Hawaii for the holidays.
"I guess it's a kind of reversed prejudice," Roberts said. "In our family, we don't go out of our way to say we're Indian. We just live our lives."
Lornet Turnbull: 206-464-2420 or email@example.com
Rights by bloodIf you are a Canadian with at least 50 percent aboriginal blood, you have the right to:
• Cross the U.S./Canadian border freely.
• Live and work in the United States and be eligible for public benefits such as Medicaid and Supplemental Security Income.
• Register for college or a university in the United States as a domestic rather than foreign student.
You do not have to:
• Obtain a work permit to hold a job in the United States.
• Register for the military.
The U.S. government cannot:
• Keep you out of the United States or deport you.
Source: American Indian Law Alliance