tified copies shall be transmitted by that Government to the Governments of all the States which may sign or adhere to this Convention. This Convention shall be open for signature at Washington, D.C."

2. Specifies, pursuant to the provisions of the said Article 94 (a) of the said Convention, ninety-four as the number of Contracting States upon whose ratification the proposed amendment aforesaid shall come into force, and 3. Resolves that the Secretary General of the International Civil Aviation Organization draw up a Protocol, in the English, French, Russian and Spanish languages each of which shall be of equal authenticity embodying the proposed amendment above-mentioned. . . .

...

The text of the Protocol agreeing upon the Russian language text developed by the Conference reads in part as follows:

Article I

The text of the Convention and of the amendments thereto in the Russian language annexed to this Protocol, together with the text of the Convention and of the amendments thereto in English, French and Spanish languages, constitutes a text equally authentic in the four languages.

Article II

If a State party to this Protocol has ratified or in the future ratifies any amendment made to the Convention in accordance with Article 94 (a) thereof, then the text of such amendment in the Russian, English, French and Spanish languages shall be deemed to refer to the text equally authentic in the four languages, which results from this Protocol.

Article III

1) The States members of the International Civil Aviation Organization, may become parties to the present Protocol either by:

a) signature without reservation as to acceptance, or

b) signature with reservation as to acceptance followed by acceptance, or c) acceptance.

2) This Protocol shall remain open for signature at Montreal until the 5th of October 1977 and thereafter at Washington, D.C.

3) Acceptance shall be effected by the deposit of an instrument of acceptance with the Government of the United States of America.

4) Adherence to or ratification or approval of this Protocol shall be deemed to be acceptance thereof.

Article IV

1) This Protocol shall come into force on the thirtieth day after twelve States shall, in accordance with the provisions of article III, have signed it without reservation as to acceptance or accepted it and after entry into force of the amendment to the final clause of the Convention, which provides that the text of the Convention in the Russian language is of equal authenticity. 2) As regards any State which shall subsequently become a party to this Protocol in accordance with Article III, the Protocol shall come into force on the date of its signature without reservation as to acceptance or of its acceptance.

Article V

Any adherence of a State to the Convention after this Protocol has entered into force shall be deemed to be acceptance of this Protocol.

Article VI

Acceptance by a State of this Protocol shall not be regarded as ratification by it of any amendment to the Convention.

Article VII

As soon as this Protocol comes into force, it shall be registered with the United Nations and with the International Civil Aviation Organization by the Government of the United States of America.

Article VIII

1) This Protocol shall remain in force so long as the Convention is in force. 2) This Protocol shall cease to be in force for a State only when that State ceases to be a party to the Convention.

Article IX

The Government of the United States of America shall give notice to all States members of the International Civil Aviation Organization and to the Organization itself:

a) of any signature of this Protocol and the date thereof, with an indication whether the signature is with or without reservation as to acceptance;

b) of the deposit of any instrument of acceptance and the date thereof; c) of the date on which this Protocol comes into force in accordance with the provisions of Article IV, paragraph 1.

Article X

This Protocol, drawn up in the English, French, Russian and Spanish languages, each text being equally authentic, shall be deposited in the archives of the Government of the United States of America, which shall transmit duly certified copies thereof to the Governments of the States members of the International Civil Aviation Organization.

Art. 94 of the Convention reads as follows:

(a) Any proposed amendment to this Convention must be approved by a twothirds vote of the Assembly and shall then come into force in respect of States which have ratified such amendment when ratified by the number of contracting States specified by the Assembly. The number so specified shall not be less than two-thirds of the total number of contracting States.

(b) If in its opinion the amendment is of such a nature as to justify this course, the Assembly in its resolution recommending adoption may provide that any State which has not ratified within a specified period after the amendment has come into force shall thereupon cease to be a member of the Organization and a party to the Convention.

The last two pars. of the Convention as signed in 1944 provide in the following manner for English, French, and Spanish language texts:

In witness whereof, the undersigned plenipotentiaries, having been duly authorized, sign this Convention on behalf of their respective governments on the dates appearing opposite their signatures.

Done at Chicago the seventh day of December 1944, in the English language. A text drawn up in the English, French, and Spanish languages, each of which shall be of equal authenticity, shall be open for signature at Washington, D.C. Both texts shall be deposited in the archives of the Government of the United States of America, and certified copies shall be transmitted by that Government to the governments of all the States which may sign or adhere to this Convention.

The protocol on the Authentic Trilingual Text of the Convention on International Civil Aviation (Chicago, 1944) with Annex was done at Buenos Aires on Sept. 23, 1968 (TIAS 6605; 19 UST 7693; 740 UNTS 21; entered into force for the United States on Oct. 24, 1968).

Dept. of State File L/T.

$4

Invalidity, Termination and Suspension

of Operation

Termination

Indian Rights in Jay Treaty

In Akins v. United States, 551 F.2d 1222 (1977), the U.S. Court of Customs and Patent Appeals held that the provisions of article III of the Treaty between the United States and the United Kingdom signed November 19, 1794 (the Jay Treaty) (TS 105; 8 Stat. 116; 12 Bevans 13; entered into force October 28, 1795), which protected the free passage rights of Indians to cross what is now the United StatesCanadian boundary without paying a customs duty on personal goods and effects, were no longer in force or effect. The Court found that the Indian right of duty-free treatment of goods and effects provided in article III of the Jay Treaty was extinguished by the War of 1812 and by the Tariff Act of 1897. In so holding, the Court, in an opinion issued on March 31, 1977, by Phillip B. Baldwin, affirmed the Customs Court's denial of plaintiff's motion for summary judgment and its granting of the defendant's cross motion for summary judgment. The Court's description of the facts of the case follows:

On July 16, 1974, the appellant, carrying a pair of hiking boots which he had purchased in Canada, entered the United States at the Calais, Maine, border station. A customs official assessed a duty of $1.20 on appellant's boots, pursuant to item 700.45, Tariff Schedules of the United States (TSUS). As a Penobscot Indian, Akins claimed an exemption under article III of the ... Jay Treaty from paying customs duty on goods for his personal use.

551 F.2d 1223.

Portions of art. III of the Jay Treaty, quoted by the Court, follow:

It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America (the country within the limits of the Hudson's Bay Company only excepted) and to navigate all the lakes, rivers and waters thereof, and freely to carry on trade and commerce with each other.

All goods and merchandise whose importation into his Majesty's said territories in America, shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same in the manner aforesaid, by the citizens of the United States, and such goods and merchandise shall be subject to no higher or other duties, than would be payable by his Majesty's subjects on the importation of the same from Europe into the said territories. And in like manner, all goods and merchandise whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by his Majesty's subjects and such goods and merchandise shall be subject to no higher or other duties, than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the

said states. And all goods not prohibited to be exported from the said territories respectively, may in like manner be carried out of the same by the two parties respectively, paying duty as aforesaid.

No duty of entry shall ever be levied by either party on peltries brought by land, or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.

Id. n.2.

In arriving at its decision, the Court traced the history of the Jay Treaty in the light of the U.S. Supreme Court decision in Karnuth v. United States ex rel. Albro, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929) and congressional enactments of Indian duty exemptions in U.S. tariff legislation:

... Article XXVIII of the same treaty specifically made the first ten articles permanent, although the Supreme Court later explained in Karnuth, supra at 242:

[T]he word "permanent". . . was not employed as a synonym for "perpetual" or "everlasting," but in the sense that those [the first ten articles were not limited to a specific period of time, as was the case in respect of the remaining articles.

In 1796 an Explanatory Article was also adopted by the United States and Great Britain in which the parties unequivocally affirmed their continued recognition of the Jay Treaty "free intercourse and commerce" rights. The article was directed toward potentially conflicting provisions of treaties concluded in the interim by either party with any other state, nation, or Indian tribe.

Although the Jay Treaty, upon ratification, was self-executing, and, therefore, the provisions of article III were effective without legislation, Congress enacted section 105 of the Tariff Act of 1799 to provide an express duty exemption for Indians. The pertinent language of that provision was patterned closely after the duty-free provision of article III. The duty exemption for Indians, provided in the Jay Treaty, was thus confirmed by congressional mandate. On June 12, 1812, war between the United States and Great Britain was declared. The war was a direct threat to the rights and privileges established by the Jay Treaty, the signatories being the warring parties. Following the war, both parties ratified the Treaty of Peace and Amity, December 24, 1814, 8 Stat. 218 (1815), (commonly known as the Treaty of Ghent).

In Article Nine the United States purported to restore to the Indian tribes and nations which were hostile to the United States all the possessions, rights, and privileges to which the tribes and nations were entitled before the war. There is conflict, however, whether Article Nine was self-executing. No implementing legislation was ever enacted.

After the War of 1812, Congress continued to include that Indian duty exemption contained in section 105 of the Tariff Act of 1799 in subsequent tariff legislation until 1897. In the 1873-1874 Session, Congress enacted the Revised Statutes of the United States in which

section 2515 of the revision incorporated the language of section 105. In 1878, section 2515 was repeated with a marginal note referring to the Tariff Act of 1799. An Act of March 3, 1883, ch. 121, § 2512, 22 Stat. 488, 523, included substantially the same language. An amendment to the provision was made in the Tariff Act of 1890, ch. 1244, 26 Stat. 567. It provided:

674. Peltries and other usual goods and effects of Indians passing or repassing the boundary line of the United States, under such regulations as the Secretary of the Treasury may prescribe: Provided, That this exemption shall not apply to goods in bales or other packages unusual among Indians. [26 Stat. 608.]

The same language was incorporated in the Tariff Act of 1894, ch. 349, § 2, para. 582, 28 Stat. 509, 543. The Tariff Act of 1897, ch. 11, § 34, 30 Stat. 151, 213, repealed, inter alia, paragraph 582, above noted, and all other acts and parts of acts inconsistent with the provisions of the Tariff Act of 1897.

551 F.2d 1224–1226.

Among the footnotes provided by the Court to the above quotation is the following portion of art. XXVIII of the Jay Treaty :

It is agreed, that the first ten articles of this treaty shall be permanent . . . But if it should unfortunately happen, that his Majesty and the United States should not be able to agree on such new arrangements, in the case, all the articles of this treaty, except the first ten, shall then cease and expire together. 551 F.2d 1224, n.5.

The Court also noted the following portion of the Explanatory Article to art. III of the Jay Treaty signed by the United States and the United Kingdom on May 4, 1796 (TS 106; 8 Stat. 130; 18 Stat. 282; 12 Bevans 34; entered into force Oct. 6, 1796):

. . . That no stipulations in any treaty subsequently concluded by either of the contracting parties with any other state or nation, or with any Indian tribe, can be understood to derogate in any manner from the rights of free intercourse and commerce, secured by the aforesaid third article of the treaty of amity, commerce and navigation, to the subjects of his Majesty and to the citizens of the United States, and to the Indians dwelling on either side of the boundary line aforesaid; but that all the said persons shall remain at full liberty freely to pass and repass by land or inland navigation, into the respective territories and countries of the contracting parties, on either side of said boundary line, and freely to carry on trade and commerce with each other, according to the stipulations of the said third article of the treaty of amity, commerce and navigation.

551 F.2d 1225, n.6.

The Court quoted as well the following portion of "Article the Ninth" of the Treaty of Peace and Amity between the United States and the United Kingdom signed on Dec. 24, 1814 (the Treaty of Ghent) (TS 109; 8 Stat. 218; 12 Bevans 41; entered into force Feb. 17, 1815):

ARTICLE THE NINTH.

The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges, which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided