An American Indian should be able to freely enter the United States from Canada and settle in the country. Although the Jay Treaty recognized this right as early as 1794, the legality of such passage is consumed by a quagmire of immigration law, federal bureaucracy, and underdeveloped legal regimes. The Supreme Court of Canada, however, recently enhanced the legal rights of American Indians in Canada in the case R v. Desautel. But does the Supreme Court of Canada improve the situation, or instead further muddy the waters by introducing judicial fiat into an already overly complicated legal regime? In this Comment, I argue that to improve the free passage legal regime, the United States should look to the text of the Jay Treaty and reinforce the right to free passage for American Indians. This regime will include transferring the regulation of Indian passage to federally recognized tribes. Further, to protect individual Indians, the United States should treat free passage as an aspect of the religious liberty of Indians in the United States. Ultimately, the greatest authority in determining belonging and the right to belong should be returned to American Indians.
