From amt@teleport.com Wed Jul 30 22:53:19 1997 Subject: Canadian Indian Status Under Welfare Reform [ The following information is posted at the request of Helen Spencer, Attorney, Columbia Legal Services, Yakima, WA. Please forward this posting to your networks in its entirety -- Andrea M. Thein, Planet Peace ] Canadian Indian Status Under Welfare Reform The 1996 federal welfare reform bill, through oversight we believe, failed to exempt Canadian Indians from its legal immigrant provisions, thus jeopardizing SSI, Medicaid and food stamps for the thousands of Canadian Indians residing in the U.S. This is a Jay Treaty issue. The SSI and Medicaid problems will likely be fixed in the current Budget Bill negotiations, which may be concluding this week. The food stamp problem is not yet fixed. Congressman Bob Smith of Oregon is chair of the House Agriculture Committee with jurisdiction over food stamps. His involvement in this issue in the next day or two is critical if the food stamp problem is to be corrected. -------------------------------------------------------------------- [ I am happy to answer on further questions you may have concerning Canadian Indian status. I can be reached at (509) 575-5593, fax (509) 575-4404, 510 Larson Building, Yakima, WA 98901. Greg Boos has written extensively on Canadian Indian status and may be reached at (360) 671- 5945. For more information on the legislative proposals to correct the food stamp problem you may call David Super at the Center Budget and Policy Priorities at (202)408-1080, fax (202) 408-1056. -- Helen Spencer, Attorney Columbia Legal Services ] -------------------------------------------------------------------- COLUMBIA LEGAL SERVICES MEMORANDUM TO: Canadian Indian Advocates FROM: M. Helen Spencer, Attorney DATE: June 30, 1997 RE: Canadian Indian Status Under Welfare Reform Canadian Indians residing in the United States have long been eligible to receive federal benefits in the United States based on their historical right to free passage between Canada and the U.S., which in turn entitles them to reside and work and receive benefits in the U.S. much the same as citizens do. Unfortunately, because of continuing confusion over exactly what status they do have, Canadian Indians are currently being considered the same as legal immigrants for purposes of federal welfare reform and will soon be facing cuts in food stamps and SSI unless USDA and SSA change their interpretation of the new law or unless the confusion is resolved by Congress. United States courts and the controlling immigration statute, 8 USC 1359, acknowledge that Canadian Indians have a status outside of INS permanent resident alien category. It appears clear to me that Canadian Indians, while not U.S. citizens, are also not aliens and thus are not subject to the INS policies and should not come within the welfare reform legal immigrant provisions. In 1928 Congress exempted Canadian Indians from the Immigration Act of 1924 after the Third Circuit`s 1928 ruling in McCandless v. U.S., 25 F. 2d 71 (3rd Cir. 1928). The District Court in McCandless had found that the boundary line between the U.S. and the present Canada was "clearly not intended to, and just as clearly did not, affect the Indians," and thus that Indians were not "among the members of the alien nations whose admissions to our county is controlled and regulated by the existing immigration laws." U.S. v. McCandless 18 F.2d 282, 283, (E.D. Pa. 1927). In upholding the lower court decision the Third Circuit held that the Indians were a third party beneficiary of article 3 of the Jay Treaty of 1797 between the U.S. and Great Britain. Although there has been some litigation over whether or not the Jay Treaty was abrogated by the War of 1812, it appears that only white folks` right to free passage between the countries was terminated, not the Indians`. Further the Treaty of Chent in 1814 specifically recognized or reinstated the Indian provisions of the Jay Treaty. The only "modern" case discussing Canadian Indian immigration status is Akins v. Saxbe, 38 F.Supp. 1210 (D. Maine 1974), which cites the Jay Treaty as the historical background for the Canadian Indian INS exemption of 8 U.S.C. 1359 (enacted is its present form in 1952) and quotes with approval the McCandless District Court decision. The Akins decision found that the language of the statute ("nothing in this subchapter shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States" exempts "Canadian - born Indians from all immigration restrictions imposed on aliens by the Immigration and Nationality Act." 380 F.Supp. 1219 (emphasis in the original; the finding is similarly stated again at 380 F.Supp. 1212). In 1978 the INS administrative appeals board adopted Akins and dropped deportation proceedings against a Canadian Indian convicted of possession of heroin. Matter of Yellowquill 16 I&N Dec. 576 (1978). The decision overruled an earlier decisions allowing deportation of "one who became a public charge within five years after entry." 16 I&N 577. I did the very brief litigation which stopped USDA and the state from cutting of food stamps for Canadian Indians in 1983. The INS directive to the states to terminate food stamps for this population was withdrawn in early 1984. Although IRCA imposed more verification requirements on employers in 1986, it did not alter the status of Canadian Indian. The Act only made the employers check to see if the Canadian Indians were 50% Indian, the same as the state and federal programs have had to do. There is no requirement that the Indians produce an INS document, although such documents are suggested as good proof of legal status. Our State`s current TANF regulations instruct eligibility workers to treat Canadian-born Indians "as U.S. citizens." The LSC regs put Canadian Indians and the Texas band of Kickapoo Indians in a separate LSC eligible category from immigrants. 45 CFR 1626.10(b). Finally, the INS regulation saying Canadian Indians "shall be regarded as having been admitted for permanent residence" (8 CFR 289.2) does not directly say that Canadian Indians are in one of INS`s permanent resident alien categories, and should not be interpreted inconsistently with 8 U.s.C. 1359. While Canadian Indians are not aliens and not citizens, our state`s policy of treating them like U.S. citizens best reflects the history and legal status of Canadian Indians in the U.S. The current House and Senate budget bill language is attached which would, if enacted, correct the SSI/Canadian Indian problem (and Kickapoo problem) caused by last year`s federal welfare reform legislation. Efforts are continuing to correct the food stamp problem as well when the bills go to a conference committee later this month. Mail?