In the Matter of S---, 1 I. & N. Dec. 309 (1942), is a United States Department of Justice

United States Department of Justice

The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...

, Board of Immigration Appeals

Board of Immigration Appeals

The Board of Immigration Appeals is the part of the Executive Office for Immigration Review that reviews the decisions of the Immigration Courts and some decisions of the U.S. Citizenship and Immigration Services. It is an administrative appellate body that is part of the United States Department...

 (BIA) decision holding that a white woman born in Canada married to a Canadian Indian and deemed a member of an Indian tribe under the Canadian Indian Act

Indian Act

The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...

 is an American Indian within the meaning of the Section 289 of the of the Immigration and Nationality Act (INA), and as such is entitled to pass the borders of the United States without regard to the INA.

Facts and procedural posture

Three plaintiffs appeared before a board of special inquiry held in Montreal, Canada, for admission for indefinite residence to the United States, and two other plaintiffs applied at the port of Oroville, Wash., and another two in Van Buren, Me., for admission for indefinite residence. All claimed the right of entry to the United States without documents as an Indian, and each one of them was of white blood but made claim to Indian status under the provisions of the Canadian Indian Act and therefore the right to pass under the Act. The respective boards of special inquiry denied their claims to Indian status and excluded them on the grounds above stated by reason of their lack of passports and visas.

Holding

The BIA overturned the lower tribunals. The Board noted that the Jay Treaty

Jay Treaty

Jay's Treaty, , also known as Jay's Treaty, The British Treaty, and the Treaty of London of 1794, was a treaty between the United States and Great Britain that is credited with averting war,, resolving issues remaining since the Treaty of Paris of 1783, which ended the American Revolution,, and...

 and the Treaty of Ghent

Treaty of Ghent

The Treaty of Ghent , signed on 24 December 1814, in Ghent , was the peace treaty that ended the War of 1812 between the United States of America and the United Kingdom of Great Britain and Ireland...

put emphasis upon the terms "tribes or nations of Indians". Thus from the historical point of view it is tribal affiliation that determines Indian status, although the statute explicitly rejected affiliation by adoption. The court reasoned that the adoption exception was subject to application of the maxim expressio unius est exclusio alterius or in this instance, exclusio unius est expressio alterius. The adoption exception is thus read to mean that a tribal status may be acquired by marriage, which is harmonious with the historical emphasis upon tribal affiliation.

Foreign Legislation as a tool of Statutory Construction

The Board did not feel there was any harm in using Canadian legislation to interpret the meaning of the relevant U.S. legislation:

Is there violence to legal precept in using the definition found in the Canadian Indian Act, that is, foreign legislation, as the guide to statutory construction? In this case we believe not. Here we are dealing with Canadian American Indians in an effort to preserve to them their ancient tribal rights. The Canadian Indian Act is a comprehensive definition of tribal governance. We note its comprehensiveness and assume that it is acceptable to the Indians as a recognition of their tribal customs and way of life.

External links

• United States Citizenship and Immigration Service, Green Card for an American Indian Born in Canada
• U.S. Embassy in Ottawa, First Nations and Native Americans Born in Canada
• U.S. Code, application to American Indians born in Canada, Title 8, Chapter 12, Subchapter II, § 1359