VANCOUVER - A Canadian aboriginal who has spent months fighting with U.S. Customs for his treaty right to cross the border freely has been given an American green card once again.

But Peter Roberts' lawyer expects more First Nations will run into challenges at the border, despite a 200-year-old treaty granting free border access rights to North American aboriginals crossing into the United States.

Roberts, a Tsawwassen, B.C. dentist, invoked his Jay Treaty rights last year when border guards at the Point Roberts, B.C. border crossing questioned his status.

Roberts has fair skin and curly hair from his Ukrainian mother, but is also 50 per cent Campbell River Indian from his father.

Under the Jay Treaty, as long as a native can prove they have at least 50 per cent aboriginal blood, they have a right to cross the U.S.-Canadian border freely and live and work in the United States.

Roberts was due for a full hearing before an immigration judge Friday but his lawyer, Len Saunders, has been told Roberts has been allowed back as a permanent resident under a different green card designation.

During a hearing in January, a lawyer for U.S. Immigration and Customs Enforcement told the judge documents from Roberts' paternal grandmother submitted to immigration officials decades ago said her own father was Irish.

Saunders said U.S. government documents show Roberts was admitted originally in the 1960's not as a Jay Treaty green-card holder, but in another "obscure" category.

"In my mind there's really no difference," Saunders said.

"Unfortunately the whole Jay Treaty, American-Indian born in Canada, was not decided. We didn't concede anything, the government didn't concede anything."

Because North American aboriginals aren't considered immigrants, Jay Treaty natives don't need a green card, but they do qualify for a card.

Saunders predicts there will be many more such confrontations at U.S. border crossings.

"At some point in the future maybe these Jay Treaty claims will be litigated. But maybe this wasn't the case to do it," he said.

He wondered what will happen when new passport requirements are brought in in June, 2009.

"We'll if I'm First Nations and have a claim to Jay Treaty benefits, does that mean that I have to get a Canadian passport to enter the U.S.?" he asked.

"Are they going to make every First Nation person in Canada get a passport? I don't think they can - who's going to litigate that?" Saunders said.

An online publication by the American Indian Law Alliance based in New York gives advice, tips and rights to aboriginals on border crossing.

"Appearance can make a difference," the document states. "Our research shows that if you 'look Indian,' the (U.S. immigration)officer may require less documentation."

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