QUESTION:
My wife is a Candian Native American (Status Native) and is covered under
The Jay Treaty. She has been married to me for 7 years while living in the
US with me for 9 years. She thus, is not "Foreigner" to the US, yet she is
not a American Citizen or Naturalized. I am a Naturilized American having
been borne here in the US. From what I understand, she is considered
Soverign, with respect to her US status. I also understand The Jay Treaty
allows Candian and American (Status) Natives the ability to cross the border
between US & Canada, as well as to work or live in either part. However,
the subject of taxation comes into question for US Income Tax purposes, as
well as other aspects of residency and other legal "statutory" requirements.
She has never worked in the US before, but is now looking to work part-time
for a private employer. The employer wants her to fill out a W-4 form, as
well as the State form for tax purposes. Are these forms appropriate to
Soverign individuals (given that she is a Native from Canada) covered under
the Jay Treaty? How would they need to be prepared? What about other
aspects of how she should be representing herself to government officers /
officials? Also, since she is not an American Citizen and also a Soverign
individual, would Social Security / Medicare taxes be required to be taken
out of her paychecks?
==============================
david ingram replies:
The Jay Treaty admits a Canadian to the US when the Canadian can prove 50%
or more Native Blood. Canada does NOT recognize the Jay Treaty in reverse
and should be criticized substantially for its attitude.
Your wife is taxable in the US.
Under Canadian law, if she was working on reservation land (even another
band's reservation) she would not be taxable but if she is not on a
reservation, her income would be taxable in Canada as well.
-----------------------------
This old Q & A might help -
Dear Sir:
This letter is concerning an article we read on the web. My husband is a
Canadian-Born Native American ( of 50% aboriginal blood) and has applied for
and received a Social Security Number. He went to get his Oklahoma Driver's
License and they are saying that he has to have a 'green card' in order to
get one. Is this true?
We have been married 1 year this June. We also have a 6 month old daughter
born here in the United States. I am an American citizen, born and raised
in the United States.
Any information you can give us would be greatly appreciated.
Sincerely,
==============================
david ingram replies:
The Jay Treaty is unusual in that the United states still recognizes and
incorporated it into section 289 of the INS rules. Canada does not
recognize it nearly as freely and tries to make a US Native Indian prove
their own cultural ties to the area in Canada that they wish to visit.
To qualify under the treaty, your husband has to prove 50% or more
aboriginal blood.
This does NOT mean that he can just walk across the border. He MUST check in
at the border and tell them he is intending to live in the US under Article
III of the Jay Treaty which I am including here.
When he proves his point at the border, they will give him paperwork which
is equivalent to a green card under the circumstances. He should then apply
for and get an actual resident alien (green) card.
I do not know anything about Oklahoma rules. I have had all sorts of people
get driver's licence in every state of the union without a green card.
However, they "have" had a working visa of some sort.
Your husband's problem (I think) is that he has no paperwork authorizing him
to be in the USA. The SSN does not entitle him to anything in particular
and he may not actually have a SSN, it may be an ITIN.
I am not a lawyer nor a member of the AILA (American Immigration Lawyers
Association). If you need any legal help with this, I suggest that you
contact Greg Boos in Bellingham ((360) 671-5945 ) in the state of
Washington. He is the most qualified lawyer to deal with the Jay Treaty
that I have run across in 42 years. Indeed, in that 42 years, I have only
run across one other lawyer who professed to know about it but I am in the
west and I think it is dealt with more routinely in Ontario and Quebec.
You can read the whole treaty with amending protocols at
http://odur.let.rug.nl/~usa/D/1776-1800/foreignpolicy/jay.htm
Good luck.
Article III and its Explanation follow here:
ARTICLE III.
It is agreed that it shall at all times be free to His Majesty's subjects,
and to the citizens of the United States, and also to the Indians dwelling
on either side of the said boundary line, freely to pass and repass by land
or inland navigation, into the respective territories and countries of the
two parties, on the continent of America, (the country within the limits of
the Hudson's Bay Company only excepted.) and to navigate all the lakes,
rivers and waters thereof, and freely to carry on trade and commerce with
each other. But it is understood that this article does not extend to the
admission of vessels of the United States into the seaports, harbours, bays
or creeks of His Majesty's said territories; nor into such parts of the
rivers in His Majesty's said territories as are between the mouth thereof,
and the highest port of entry from the sea, except in small vessels trading
bona fide between Montreal and Quebec, under such regulations as shall be
established to prevent the possibility of any frauds in this respect. Nor to
the admission of British vessels from the sea into the rivers of the United
States, beyond the highest ports of entry for foreign vessels from the sea.
The river Mississippi shall, however, according to the treaty of peace, be
entirely open to both parties; and it is further agreed, that all the ports
and places on its eastern side, to whichsoever of the parties belonging, may
freely be resorted to and used by both parties, in as ample a manner as any
of the Atlantic ports or places of the United States, or any of the ports or
places of His Majesty in Great Britain
All goods and merchandize whose importation into His Majesty's said
territories in America shall not be entirely prohibited, may freely, for the
purposes of commerce, be carried into the same in the manner aforesaid, by
the citizens of the United States, and such goods and merchandize shall be
subject to no higher or other duties than would be payable by His Majesty's
subjects on the importation of the same from Europe into the said
territories. And in like manner all goods and merchandize whose importation
into the United States shall not be wholly prohibited, may freely, for the
purposes of commerce, be carried into the same, in the manner aforesaid, by
His Majesty's subjects, and such goods and merchandize shall be subject to
no higher or other duties than would be payable by the citizens of the
United States on the importation of the same in American vessels into the
Atlantic ports of the said States. And all goods not prohibited to be
exported from the said territories respectively, may in like manner be
carried out of the same by the two parties respectively, paying duty as
aforesaid.
No duty of entry shall ever be levied by either party on peltries brought by
land or inland navigation into the said territories respectively, nor shall
the Indians passing or repassing with their own proper goods and effects of
whatever nature, pay for the same any impost or duty whatever. But goods in
bales, or other large packages, unusual among Indians, shall not be
considered as goods belonging bona fide to Indians.
No higher or other tolls or rates of ferriage than what are or shall be
payable by natives, shall be demanded on either side; and no duties shall be
payable on any goods which shall merely be carried over any of the portages
or carrying places on either side, for the purpose of being immediately
reembarked and carried to some other place or places. But as by this
stipulation it is only meant to secure to each party a free passage across
the portages on both sides, it is agreed that this exemption from duty shall
extend only to such goods as are carried in the usual and direct road across
the portage, and are not attempted to be in any manner sold or exchanged
during their passage across the same, and proper regulations may be
established to prevent the possibility of any frauds in this respect.
As this article is intended to render in a great degree the local advantages
of each party common to both, and thereby to promote a disposition favorable
to friendship and good neighborhood, it is agreed that the respective
Governments will mutually promote this amicable intercourse, by causing
speedy and impartial justice to be done, and necessary protection to be
extended to all who may be concerned therein.
1796.
----------------------------------------------------------------------------
----
EXPLANATORY ARTICLE TO THE THIRD ARTICLE OF THE TREATY OF NOVEMBER 19, 1794,
RESPECTING THE LIBERTY TO PASS AND REPASS THE BORDERS AND TO CARRY ON TRADE
AND COMMERCE.
Concluded May 4, 1796; Ratification advised by Senate May 9, 1796.
Whereas by the third article of the treaty of amity, commerce and
navigation, concluded at London on the nineteenth day of November, one
thousand seven hundred and ninety-four, between His Britannic Majesty and
the United States of America, it was agreed that is should at all times be
free to His Majesty's subjects and to the citizens of the United States, and
also to the Indians dwelling on either side of the boundary line, assigned
by the treaty of peace to the United States, freely to pass and repass, by
land or inland navigation, into the respective territories and countries of
the two contracting parties, on the continent of America, (the country
within the limits of the Hudson's Bay Company only excepted,) and to
navigate all the lakes, rivers, and waters thereof, and freely to carry on
trade and commerce with each other, subject to the provisions and
limitations contained in the said article: And whereas by the eighth article
of the treaty of peace and friendship concluded at Greenville on the third
day of August, one thousand seven hundred and ninety-five, between the
United States and the nations or tribes of Indians called the Wyandots,
Delawares, Shawanoes, Ottawas, Chippewas, Putawatimies, Miamis, Eel River,
Weeas, Kickapoos, Piankashaws, and Kaskaskias, it was stipulated that no
person should be permitted to reside at any of the towns or the hunting
camps of the said Indian tribes, as a trader, who is not furnished with a
licence for that purpose under the authority of the United States: Which
latter stipulation has excited doubts, whether in its operation it may not
interfere with the due execution of the third article of the treaty of
amity, commerce and navigation: And it being the sincere desire of His
Britannic Majesty and of the United States that this point should be so
explained as to remove all doubts and promote mutual satisfaction and
friendship: And for this purpose His Britannic Majesty having named for his
Commissioner, Phineas Bond, Esquire, His Majesty's Consul General for the
Middle and Southern States of America, (and now His Majesty's Chargé
d'Affaires to the United States,) and the President of the United States
having named for their Commissioner, Timothy Pickering, Esquire, Secretary
of State of the United States, to whom, agreeably to the laws of the United
States, he has intrusted this negotiation: They, the said Commissioners,
having communicated to each other their full powers, have, in virtue of the
same, and conformably to the spirit of the last article of the said treaty
of amity, commerce and navigation, entered into this explanatory article,
and do by these presents explicitly agree and declare, that no stipulations
in any treaty subsequently concluded by either of the contracting parties
with any other State or nation, or with any Indian tribe, can be understood
to derogate in any manner from the rights of free intercourse and commerce,
secured by the aforesaid third article of the treaty of amity, commerce and
navigation, to the subjects of his Majesty and to the citizens of the United
States, and to the Indians dwelling on either side of the boundary line
aforesaid; but that all the said persons shall remain at full liberty freely
to pass and repass, by land or inland navigation, into the respective
territories and countries of the contracting parties, on either side of the
said boundary line, and freely to carry on trade and commerce with each
other, according to the stipulations of the said third article of the treaty
of amity, commerce and navigation.
This explanatory article, when the same shall have been ratified by His
Majesty and by the President of the United States, by and with the advice
and consent of their Senate, and the respective ratifications mutually
exchanged, shall be added to and make a part of the said treaty of amity
commerce and navigation, and shall be permanently binding upon His Majesty
and the United States.
In witness whereof we, the said Commissioners of His Majesty the King of
Great Britain and the United States of America, have signed this present
explanatory article, and thereto affixed our seals.
Done at Philadelphia this fourth day of May, in the year of our Lord one
thousand seven hundred and ninety-six.
(SEAL.) P. BOND. (SEAL.) TIMOTHY PICKERING.
============================================================================
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