Jay Treaty 1794 Native border framework (sec. 289/sec. 1359)

Example scenarios

• ELIGIBLE to invoke INA §289 = 8 USC §1359 border-crossing right. She may cross the U.S.-Canada border without a visa and will be treated as lawfully admitted for permanent residence. She may subsequently file for formal LPR-record documentation and, after 5 years of continuous U.S. residence, apply for naturalization under INA §316.

  The woman is born in Canada (satisfies the 'born in Canada' requirement). She has 75% American Indian blood — well above the 50% threshold of 8 USC §1359. She is tribally enrolled, which corroborates the blood quantum. At the U.S.-Canada port of entry, she presents her tribal enrollment card and blood-quantum certification. CBP admits her under §1359 LPR treatment. She is NOT automatically a U.S. citizen — she has LPR treatment status. To become a citizen she must reside in the U.S. for 5 years continuously and then apply for naturalization under INA §316 = 8 USC §1427. No visa is required; the §1359 right is self-executing at the border upon documentary proof.

• NOT ELIGIBLE under INA §289 = 8 USC §1359. The 50% blood-quantum requirement is not met. Tribal enrollment alone does not satisfy the statutory threshold.

  INA §289 = 8 USC §1359 expressly requires 'at least 50 per centum of blood of the American Indian race.' The man has only 40% American Indian blood — below the statutory minimum. The statute uses the word 'only' to limit the border-crossing right to those meeting this threshold. Tribal enrollment is necessary but not sufficient. The man is not eligible for the Jay Treaty border-crossing right. He must apply for entry under ordinary immigration procedures (e.g., B-2 visitor visa or immigrant visa). This is a bright-line statutory rule with no waiver or discretionary exception.

• NOT a U.S. citizen automatically. The §1359 framework confers LPR status, not citizenship. After meeting the 5-year continuous-residence requirement, the man is ELIGIBLE to APPLY for naturalization under INA §316, but he has not applied and citizenship has not been conferred.

  INA §289 = 8 USC §1359 grants the right to cross the border and to be treated as 'lawfully admitted for permanent residence' — an LPR record, not citizenship. USCIS-PM Vol. 7, Part O, Chapter 5 confirms: §289 = LPR record, not citizenship. To become a U.S. citizen, the man must apply for naturalization under INA §316 = 8 USC §1427: (a) 5 years continuous LPR residence immediately preceding the application — met (8 years); (b) at least 30 months physical presence in those 5 years — must verify; (c) 3 months state residence before filing — met (Minnesota); (d) good moral character, English, civics test, oath. The man should file Form N-400 ($760 paper / $710 online per 89 FR 6194). His 8-year LPR residency makes him clearly eligible to APPLY; eligibility to have naturalization GRANTED depends on USCIS's discretionary adjudication of all conditions.

• Has the §1359 border-crossing right (blood quantum satisfied) but has NOT accumulated any §316 continuous-residence credit toward naturalization because her primary domicile remains Canada.

  INA §289 = 8 USC §1359 grants the border-crossing right on each entry based on her 55% blood quantum — she may cross and work. However, for the §316 naturalization clock, 'residence' under INA §101(a)(33) = 8 USC §1101(a)(33) requires the principal actual dwelling place to be in the U.S. Since her primary domicile is Alberta, time spent in the U.S. for work (commuting or staying on a project) does not count as §316 U.S. residence. To begin the §316 clock, she must establish primary U.S. domicile. Additionally, she should file Form I-89 to formalize her LPR record, which will anchor the start date of her §316 residency period once she establishes primary U.S. domicile.

• After §1359 LPR entry and subsequent U.S. naturalization under §316, he would be both a U.S. citizen and (under Canadian law since 1977) likely a Canadian citizen, AND retain his tribal membership. He should verify with a Canadian immigration attorney that no Canadian-law event triggered by U.S. naturalization would affect his Canadian citizenship.

  Canada's Citizenship Act 1977 removed most automatic-loss provisions for Canadians who acquire foreign citizenship; U.S. naturalization generally no longer automatically extinguishes Canadian citizenship, though the U.S. Oath of Allegiance (INA §337) renounces foreign allegiance as a matter of U.S. law — this does not under Canadian law cause loss of Canadian citizenship. Tribal membership in a Coast Salish First Nation is governed by the tribe's own citizenship laws and is not affected by U.S. or Canadian national citizenship. The man may hold all three statuses simultaneously: U.S. citizen, Canadian citizen, and tribal member. He should consult a Canadian immigration attorney to verify the Canadian-citizenship status after the U.S. oath, as the analysis is foreign-law-dependent (NLR on Canadian citizenship law specifics).