Blood quantum the important thing to U.S. customs

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PRO BONO

Dear Tuma:

I'm a non-status Native living off reserve in Canada. My mother is a status and lives on reserve. Now I had heard that I can work in the United States of America and wanted to know how I can do this.

Unemployed Snowbird

Dear Unemployed:

There are a couple of ways to obtain a job in the United States. For many Indigenous folks, all that is required is to declare that you will be entering the country under the Jay Treaty, but this is not the only way to work in the U.S.

The Jay Treaty is a treaty of commerce between Great Britain and the U.S. One of the clauses deals with "Indians" being able to cross the border freely and without hindrance. In order to take advantage of this clause, what you need to do is to declare that you are crossing the border under the Jay Treaty and that you have more then 50 per cent Indian blood. Your band membership clerk or someone who has significant authority in your band council can write a letter on band letterhead stating that you are indeed a band member and that you have more then 50 per cent Indian blood.

U.S. customs relies more on blood quantum than on status cards to ascertain whether you can enter under the Jay Treaty. Under Canadian law you can be status without having any Indian blood or you can be a full-blooded Indian without having any status. Once you have crossed the border under the Jay Treaty, you will be seen as a legal alien and eligible for a social security number. This will enable you to work in most occupations except for the ones that require U.S. citizenship or an enhanced security clearance.

Other ways of entering the U.S. to work are to take out U.S. citizenship, work under the North America Free Trade Agreement, be a professional in certain occupations, or have an employer declare that they have searched high and low in the U.S. and could not find anyone to fill the position.

If you do get a job in Arizona, email me and I will visit around January or February when it is minus 30 here in Canada.

Dear Tuma:

I'm an Aboriginal person living with HIV and just recently I did a stupid thing. I got caught stealing and because I have a previous record, I'm looking at some jail time. Jail does not scare me and I think I will get about one to three months. What I'm worried about is my long-term disability benefits. Can they cut me off for going to jail for even a month?

Poverty Makes Me Do Strange Things

Dear Poverty:

You are right. Poverty does make people do strange and desperate things. Eliminate poverty and you will have eliminated a lot of problems in our communities. Now for your question.

Long-term disability is usually a social service program of the provincial government. Welfare on reserves is delivered either under provincial rules and regulations or under the Department of Indian Affairs. Long-term disability is an assistance program for folks who are unable to work because of a disability and HIV infection is considered to be a disability. The amount of assistance is minimal, which makes it difficult for folks to live on the assistance.

You are correct is assuming that once you are incarcerated that your long-term disability assistance will be cut off. The rationale will be that you do not need the assistance for rent, food, clothing, etc., because the correctional institute will be providing for all of your basic needs. The problem will be when you come out and try to reapply. You will have to go through the entire application process again, with repeated visits to doctors for letters and confirmation forms.

Ask your lawyer to request house arrest. House arrest will mean that you will serve your sentence in your home or other suitable place other than a correctional institution.

You may be able to keep your long-term disability assistance by making the argument that you still need to pay for shelter, food and other basic needs.

You can also request other conditions, such as permission to leav the house for medical appointments, etc.

Good luck.

This column is not intended to provide legal advice but rather highlight situations where you should consult with a lawyer. Tuma Young is currently studying for a PhD in law at the University of British Columbia and questions can be sent to him via e-mail at: puoin@telus.net