Interim Decision #2664 MATTER OF YELLOWQUILL In Deportation

Interim Decision #2664

MATTER OF YELLOWQUILL

In Deportation Proceedings

A-22852501

Decided by Board August 1,

1978

The historical right of American Indians born in Canada to pass the borders of the United

States recognized by section 289 of the Immigration and Nationality Act, 8 U. S. C. 1359,

exempts such Indians from restrictions imposed on aliens by the immigration laws and

they are not subject to deportation.

Matter of A—, 1 1. &

N. Dec. 600 (BIA 1943),

overruled;

Akins v. Saxbe,

380 F. Stipp. 1210 (D. Maine 1974), followed_

OXIARGE;

Order: Act of 1952---Section 241(a)(11)18 U.S.C. 1251(a)(11)]—Convicted of a violation of

Texas Controlled Substance Act of unlawful possession of heroin

ON BEHALF OF RESPONDENT:

Lawrence A. Aschenbrenner, Esquire

1712

Street, N.W.

Washington, D. C. 20036

Attorney of record:

Michael Tobin, Esquire

P.O. BOY: 99

iluntsville, Texas 77340

ON BEHALF

SERVICE:

George Indelicate

Appellate Trial Attorney

David Crosland

General Counsel

BY: Milhollan, Chairman; Appleman, Maguire, and Farb, Board Members

The respondent appeals from a decision of an immigration judge

zrendered on February 24, 1978. In his decision the immigration judge

found the respondent deportable as charged and ordered her deporta-

tion to Canada. The appeal will be sustained and these proceedings will

be terminated.

The respondent is a native and citizen of Canada. She entered the

'United States on April 1, 1971. The Service concedes that she has at

least 50 percent American Indian blood. On May 27, 1977, she was

convicted in the District Court of Dallas County, Texas, for the unlawfnd

Possession of heroin.

Before us and before the immigration judge the respondent has ar-

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Interim Decision #2664

gued that she is not deportable by virtue of section 289 of the Immigra:-

don and Nationality Act, 8 U.S.C. 1359, which reads:

Nothing in this title 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.

The right of American Indians

to move freely between what is now

the Dominion of Canada and the United States was first recognized by

our Government in the Jay Treaty of 1794, 8 Stat. 117, and was reiter-

ated in the Treaty of Ghent of 1814, 8 Stat. 222. As we pointed out in

Matter of A—, 1 I.

N. Dec. 600 (BIA 1943), prior to 1924 American

Indians born in Canada were considered free to cross the border without

regard to the immigration laws.

After the passage of the Immigration Act of 1924, 43 Stat. 153, the

administrative authorities first attempted to subject such Indians to

immigration restrictions by excluding them as persons who were

ineligible to citizenship. However, this attempt at excluding Anierican

Indians born in Canada was rebuffed by the judiciary. See

U.S. ex rel.

Diabo v. McCandless,

18 F.2d 282 (E.D. Pa. 1927), aff'd, 25 F.2d 71 (3

Cir. 19281. Congress, in the Act of April 2, 1928, 45 Stat. 401, approved

the

Diabo

result and legislated:

That the Immigration Act of 1924 shall not be construed to apply to the right of

American Indians born in Canada to pass the borders of the United States . . .

Such being the state of the law, in

Matter of A—, supra,

we held that

an American Indian born in Canada was not .deportable as one who

would be excludable at the time of entry under the Act of February 5,

1917, 39 Stat. 874, because he was exempted from the exclusion provi-

sions of the immigration laws. However, we found the respondent in

those proceedings deportable as one who became a public charge within

five years after entry into the United States from causes not affirma-

tively

shown to have arisen subsequent thereto. We refused to extend

the immunity from exclusion to deportation.

recognized that deporting an American Indian born in Canada

would not prevent him under our laws from again entering this country.

However, we reasoned that such Indians were wards of the Canadian

Government, which could be expected to administer its Indian laws in a

way that would prevent their return to the United States after their

deportation from this country.

Matter of B—,

I. & N. Dec. 191 (BIA 1948), and

Matter of D

—

N. Dec. 300

(CO

and BIA 1948), we refined our thinldng and we

stated that the better interpretation of the unhindered passage right of

American Indians contained in the Act of April 2, 1928, was that

they

would not he deportable

on a ground that would have served to exclude

them at the time of their last entry. We reasoned that if the ground of

577

Interim Decision #2664

deportation did not arise after the entry the proceedings instituted

would be, in effect, a belated exclusion process banned by Congress.

Our prior holdings can then be summed up as being that every time an

American Indian born in Canada seeks admission he cannot be refused

entry and he enters with a clean. slate.

Since the respondent's arguments have judicial support,

see Akins

Saxbe,

380 F. Supp. 1210 (D. Maine 1974), and they are in conflict with

our interpretation of the predecessor of section 289 of the Act, see

Matter of D

—

, supra; Matter of B

—

, supra; Matter of A

—

, supra, we

requested the

views of the Immigration and Naturalization Service

Central Office. The Service through its General Counsel has stated that

it considers

Akins

correct and that it recommends that

Matter of A

—

supra,

be overruled.

The court in

Akins v. Saxbe, supra,

considering the principles of

statutory construction that (1) the language of statutes and treaties

affecting Indians must be construed in a nontechnical sense, as the

Indians themselves would have understood it and in a manner reflecting

the conditions prompting its adoption, and (2) ambiguities in statutes

and treaties conferring benefits on Indians are to be resolved in favor of

the Indians, held

that the words

to pass" in section 2s9

the Act

exempt the American Indians born in Canada from the alien registra-

tion requirements of section 262 of the Act, 8 U.S.C. 1302. The court

reasoned that

section 2R9 exempts such Indians from the restrictions

imposed on aliens by the immigration laws.

The Solicitor General declined to authorize a Government appeal in

Akins v. Saxbe, supra.

As suggested by the Service's General Counsel,

under the principle of freedom from immigration restrictions, declared

in the

Akins

decision, there is even less justification for asserting

statutory authority to deport Canadian Indians than for asserting the

relatively innocuous requirement that they register as

aliens.

We have decided to accept the reasoning inAkins

v. Saxbe,

supra,

being correct and applicable to the deportation provisions of the Act.

American • Indians born in Canada who are within the protection of

section 289 of the Act are not subject to deportation on any ground.

Matter of A

—

, supra,

is overruled and shall not serve as a precedent in

the administration of the present Act.

ORDER:

The appeal is sustained.

FURTHER ORDER: The deportation proceedings instituted against

Jolene Yellowquill on November 4, 1977, are hereby terminated.

578