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 N Street, N.W. 

Washington, D. C. 20036 

Attorney of record: 

Michael Tobin, Esquire 

P.O. BOY: 99 

iluntsville, Texas 77340 

ON BEHALF OF 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 deportation 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 ar576 
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 reiterated in the Treaty of Ghent of 1814, 8 Stat. 222. As we pointed out in 

Matter of A—, 1 I. Si 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 provisions 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 affirmatively shown to have arisen subsequent thereto. We refused to extend 

the immunity from exclusion to deportation. 

We 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. 

In Matter of B—, 3 I. & N. Dec. 191 (BIA 1948), and Matter of D—, 3 

I. & 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 

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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 v. 

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 of the Act 

exempt the American Indians born in Canada from the alien registration 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, as 

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