Before there was a border dividing North America, there was the Ktunaxa Nation. Relatives from all across the Ktunaxa Nation could visit each other freely, and hunt and gather along their vast homelands to feed their families. Now the nation is divided by a border, with four First Nations in what’s now Canada, and two in what’s now the United States. The last hereditary nasukin, or chief, of the Yaq̓it ʔa·knuqǂiʾit First Nation—one of the six making up the Ktunaxa Nation—could cross from Canada into the United States by walking from one side of his house to the other.
After the American Revolutionary War the United States and Great Britain signed the Treaty of Amity Commerce and Navigation, commonly known as the Jay Treaty, in 1794. It allowed for commerce and provided free border crossing to U.S. citizens, British subjects and Indigenous peoples but the border boundary remained unclear. The colonial border between the U.S. and Canada was formally decided in the Oregon Treaty of 1846 which placed the future states of Oregon, Washington, Idaho and Montana in what is now the U.S. When creating the border, there was never any consultation with the Native nations whose ancestral lands the border divided, cutting nations in half. Some Indigenous people woke up one morning in a new country, subject to a whole new set of laws.
Citizens of federally recognized First Nations in Canada can cross the border, or what many Indigenous people call the northern medicine line, into the United States with identification issued by a Native nation. However, they may be asked to show proof of at least 50 percent blood quantum, violating the rights of Native nations to establish their own citizenship requirements. Washington Representative Derek Kilmer and Idaho Representative Russ Fulcher, in collaboration with the Jay Treaty Border Alliance, introduced legislation in March called the Tribal Border Crossing Parity Act. This legislation would eliminate the blood quantum requirement, simplifying the process for Indigenous people to cross from Canada to the U.S., something Indigenous leaders across the U.S. and Canada are in support of.
“Blood quantum was originally imposed by the United States as a method of eliminating Indians and Indian Nations,” said Jennifer Porter, chairwoman of the Kootenai Tribe of Idaho. “While some tribes continue to use blood quantum to determine citizenship, it is their choice to do so. It gets back to tribal self-determination and governance. Tribes and First Nations should have the right to determine who our citizens are based on criteria we have adopted, not criteria imposed by outside governments like the United States.”
Porter went on to say that Native identity is not tracked using blood quantum in Canada, adding another layer of complications at the border.
“It separated families,” said Heidi Gravelle, Nasukin of the Yaq̓it ʔa·knuqǂiʾit First Nation, also known as the Tobacco Plains Indian Band.
The Yaq̓it ʔa·knuqǂiʾit First Nation is one of several Ktunaxa Nation communities in Canada, where the southern boundary of their reserve touches the U.S. border in Montana. With the creation of the border, Gravelle’s own family was split in half. Her grandmother had to choose whether to live with her father’s family in what’s now considered Canada or her mother’s in what is now considered the U.S. All her family used to live in one region and the border separated them into two different countries with their own unique laws.
The border has added additional difficulties in daily life as well. Today, kindergarten through 12th grade students from the Yaq̓it ʔa·knuqǂiʾit First Nation must cross the border to get to and from school in Montana, according to Gravelle.
“You never know when you cross which rights of yours as an Indigenous person are going to be violated and to what extent,” Gravelle said.
The Tribal Border Crossing Parity Act
The Ktunaxa Nation is made up of the Kootenai Tribe of Idaho,the Confederated Salish and Kootenai Tribes along with four first nations: ʔaq̓am, ʔakisq̓nuk, yaqan nuʔkiy, and Yaq̓it ʔa·knuqⱡi’it. Although each nation has separate governments, they remain connected with cultural and familial ties bonding them together, according to Porter.
“Let’s be clear – the Ktunaxa Nation predates both the United States and Canada and Ktunaxa people were created in Ktunaxa territory to guard and keep the land forever,” Porter said. “It is the inherent right of Ktunaxa people to travel throughout our territory, despite artificial boundaries imposed by the colonial powers.”
The Department of Interior currently has the authority to issue certificates “proving” a person’s Native American or Alaska Native heritage. The process requires extensive documentation, and Native nations believe it infringes on their rights to determine their own citizenship qualifications.
The goal of this bill is to restore the original intent of the Jay Treaty, allowing citizens of Native nations to freely cross between the U.S. and Canada, according to U.S. Representative Derek Kilmer.
“I see this bill as addressing just one of many broken promises that the federal government has made to tribal nations,” said Kilmer. “For far too long, the federal government has failed to live up to its trust and treaty responsibilities to Tribal nations.”
Originally, the Jay Treaty did not set forth blood quantum requirements to exercise that sovereign right to cross the northern medicine line. The Jay Treaty of 1794 established trade policies between the U.S. and Great Britain in the name of peace between the colonial powers. It also established the right of Native Americans to freely cross the newly implemented border.It wasn’t until over 150 years later with the Immigration and Nationality Act of 1952 that set forth an amendment imposing a blood quantum requirement.
“It’s important to note that our right is inherent and does not rely on the Jay Treaty,” said Porter. “But, it’s good to remind the United States that it recognized that right in a treaty, which means it’s the supreme law of the land and needs to be implemented properly.”
Larry Wright, Jr., Ponca Tribe of Nebraska, executive director of the National Congress of American Indians believes that removing the blood quantum requirement is an act of honoring the sovereignty of Native nations and their inherent right to determine their own citizenship criteria. He also believes it would facilitate greater freedom of movement across the border, allowing Native communities to engage in important cultural and spiritual practices.
“The [50 percent blood quantum] requirement undermines tribal sovereignty, and really perpetuates discriminatory practices rooted in termination era,” said Wright. “The Tribal Border Crossing Parity Act is a welcome amendment to the Jay Treaty, and aims to rectify those discrepancies by ensuring that the right to cross the border extends to all members, and those eligible to become members, of federally recognized tribes.”
Gravelle echoed Wright’s sentiments.
“How does my blood quantum level impact the safety or equity of your country?,” Gravelle said. “It’s just a derogatory racial implication that they want to hold onto for that falsified sense of power over Indigenous people.”
Lead image: A photo of Chief David, the last hereditary chief, or nasukin, of the Yaq̓it ʔa·knuqǂiʾit First Nation. The colonial implementation of the border between the United States and Canada literally divided his house between two nations. (Photo courtesy of Heidi Gravelle, Nasukin of the Yaq̓it ʔa·knuqǂiʾit First Nation)
