always, That such tribes or nations shall agree to desist from all hostilities, against the United States of America, their citizens and subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly. And his Britannic majesty engages, on his part, to put an end immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom he 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:

551 F.2d 1225, n. 9.

The Court noted that conflicting interpretations of the self-executing nature of Article the Ninth of the Treaty of Ghent are to be found in the cases of United States v. Garrow, T.D. 48, 208, 88 F.2d 318, 24 CCPA 410, cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937); McCandless v. United States ex rel. Diablo, 25 F.2d 71, 73 (CA3 1928); and United States ex rel. Goodwin v. Karnuth, 74 F. Supp. 660, 662 (W.D.N.Y. 1947).

In its analysis of relevant case law, the Court considered the decision in Karnuth v. United States ex rel. Albro, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929), which held that the Indian duty exemptions of article III of the Jay Treaty were nullified by the War of 1812: Karnuth involved two Canadian residents (not Indians) who were denied entry into the United States because they had been classified as quota immigrants rather than tourists. They argued that article III of the Jay Treaty permitted them to pass and to repass freely. . [T]he Court distinguished between the rights guaranteed by article IX and those enumerated in article III. The Court stated that article IX was concerned with permanently vested property rights, whereas, article III was concerned with rights which were created by the treaty with "no obligatory existence apart from that instrument." With regard to this issue, it concluded that the continuance of the article III right of free passage would be inconsistent with a state of hostility, and that its revival after the War of 1812 might also conflict "with a new or altered state of affairs." 279 U.S. at 239.

The Court further stated that:

[T]he provision [article III right of free passage] of the Jay Treaty now under consideration was brought to an end by the War of 1812, leaving the contracting powers discharged from all obligation in respect thereto, and, in the absence of a renewal, free to deal with the matter as their views of national policy, respectively, might from time to time dictate. [279 U.S. at 241.]

551 F.2d 1227.

The Court noted that art. IX of the Jay Treaty reads as follows:

ARTICLE IX.

It is agreed that British subjects who now hold lands in the territories of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives;

and that neither they nor their heirs or assigns shall, so far as may respect the said lands and the legal remedies incident thereto, be regarded as aliens. 551 F.2d 1227, n. 12.

The Court relied upon the U.S. Supreme Court's reasoning in Karnuth as well as upon the termination of the Indian duty exemption in the Tariff Act of 1897 in deciding that the Customs Court was correct in ruling "that the provisions of article III, relied upon by the appellant, are no longer in force." 551 F.2d 1228.

Deciding that the privilege to pass and repass was established with a view toward peaceful relations between the signatories, the Court [in Karnuth] further concluded that free passage was based on "mutual trust and confidence" and therefore was inconsistent with hostile conditions. The Court further stated:

The reasons for the conclusion are obvious-among them, that otherwise the door would be open for treasonable intercourse. And it is easy to see that such freedom of intercourse also may be incompatible with conditions following the termination of the war. Disturbance of peaceful relations between countries occasioned by war, is often so profound that the accompanying bitterness, distrust and hate indefinitely survive the coming of peace. The causes, conduct or result of the war may be such as to render a revival of the privilege inconsistent with a new or altered state of affairs. The grant of the privilege connotes the existence of normal peaceful relations. When these are broken by war, it is wholly problematic whether the ensuing peace will be of such character as to justify the neighborly freedom of intercourse which prevailed before the rupture. It follows that the provision [Article III] belongs to the class of treaties which does not survive war between the high contracting parties... [279 U.S. at 239-40, emphasis added.]

Granting free-passage rights to citizens and subjects of hostile nations enhances the possibility of treasonable intercourse. . . . Hostility and distrust undercut codes of conduct, thereby compelling an interruption of free passage, not only for citizens but also for subjects. Furthermore, a formal termination of the physical conflict does not guarantee resumption of normal peaceful relations. An altered state of affairs often necessitates modification of the legal interface between the hostile nations. Karnuth held that article III was nullified by the War of 1812, with respect to free passage of "citizens or subjects" of the warring nations. Indians who were subjects of the warring nations were not excepted from the Karnuth holding.

Abrogation of the free-passage provision does not necessarily affect other provisions. Independent provisions can survive. The Customs Court, however, correctly concluded that the duty exemption is logically dependent upon the free-passage provision. Each is personal and involves the physical movement of an individual. Abolishing physical passage to prevent treasonable intercourse dictates by necessity the abrogation of the duty exemption for personal goods. . . .

551 F.2d 1228–1229. (Footnotes omitted.)

We also agree with the Customs Court that a significant indication of the status of the duty exemption of article III is the legislation passed by Congress. . . . In that year [1897], the tariff laws containing the provision [providing duty-free treatment of Indian goods and effects] were repealed and no such provision has been provided in statutes since that time. We are left with one conclusion to be drawn from these congressional manifestations; that Congress intended to terminate the Indian duty exemption.

The congressional intent as manifest in the Tariff Act of 1897 has significance not only with regard to the statutory duty exemption but also with regard to the Jay Treaty duty exemption. As a rule of priority between equals, a later dated statute in direct conflict with a treaty supersedes the treaty. The Cherokee Tobacco, 78 U.S. (11) Wall.) 616 (1870); Foster v. Neilson, 27 U.S. 2 Pet.) 253 (1829). The Tariff Act of 1897 is in direct conflict with the duty-free provision of article III of the Jay Treaty. In clear language, the act repealed sections of the Tariff Act of 1894, including the duty exemption, and all other acts inconsistent with the repealing statute. The language of the duty-free provision of the Jay Treaty is substantially identical with the repealed provision. The Tariff Act of 1897 served not only as an expression of congressional intent to repeal the statutory right, but also as a termination of the Indian duty exemption of article III of the Jay Treaty.

551 F.2d 1229–1230 (footnotes omitted).

For information concerning the Court of Customs decision in Akins v. United States, see the 1976 Digest, Ch. 5, § 4, pp. 236-240. For a case which held that Canadian-born Indians were exempted from restrictions imposed on aliens by the immigration laws, see Akins v. Sazbe, 380 F. Supp. 1210 (1974) in the 1974 Digest, Ch. 3, § 3, pp. 87-89.

In a letter dated August 25, 1977, to Eben Hopson, the Mayor of the North Slope Borough of Barrow, Alaska, David Gantz, Assistant Legal Adviser for European Affairs of the Department of State, discussed the Akins v. United States decision, U.S. legislation regarding the right of native Americans born in Canada to cross U.S. borders, as well as Canadian court decisions interpreting the Jay Treaty. Mayor Hopson had written an inquiry to the Department of State on April 23, 1977, asking various questions concerning rights accorded native Americans by article 3 of the Jay Treaty. Portions of Mr. Gantz' letter follow:

U.S. customs courts have consistently ruled that the right of native Americans to bring personal possessions across the border duty-free has been abrogated, either by the War of 1812 or by subsequent legislation indicating that Congress intended to end the duty exemptions. Akins v. United States, 407 F. Supp. 748 (1976), aff'd 551 F. 2d 1222 (1977); United States v. Garrow, 88 F. 2d 318, cert. denied, 302 U.S. 695 (1937). The latter Akins decision, issued on March 31 of this year, has not been appealed to the Supreme Court. Consequently, it is likely to stand as binding precedent for

the customs courts unless the U.S. Congress restores the duty exemptions by statute or the Supreme Court issues an opinion containing a different interpretation of the status of the Jay Treaty. The right of free passage accorded native Americans by the Jay Treaty remains available to them, but at present the right appears to depend more on statutory authority than on the current status of the Jay Treaty. This results from an interplay of litigation and legislation dating from the 1920's, which began with the successful assertion of Jay Treaty free passage rights by Canadianborn Indians whom the Department of Labor sought to deport under the Immigration and Nationality Act of 1924. United States ex rel. Diablo v. McCandless, 18 F. 2d 282 (E.D. Pa. 1927), aff'd 25 F.2d 71 (3rd Cir. 1928). In 1928, Congress sought to reaffirm the right of native Americans to free mobility between the United States and Canada by enacting the statutory predecessor to current 8 U.S.C. 1359, which read:

That the Immigration [and Nationality] 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. [45 Stat. 401].

A recent case, holding that Canadian-born Indians need not register with the Immigration and Naturalization Service or obtain visas, stated that

irrespective of the present status of the Jay Treaty, it is reasonable to assume that Congress' purpose in using the Jay Treaty language in the 1928 Act was to recognize and secure the right of free passage as it had been guaranteed by that Treaty and delineated by the District Court in McCandless.

Akins v. Saxbe, 380 F.Supp. 1210, 1221 (D. Maine 1974).

On the other side of the border, the Exchequer Court of Canada has ruled that the provisions of article 3 had been abrogated by the War of 1812. Francis v. The Queen, 4 D.L.R. 760 (1955). The Supreme Court of Canada affirmed the decision on the different premise that Canadian law required such rights and privileges as provided by article 3 of the Jay Treaty to be implemented and sanctioned by the legislation and that such implementation had never been enacted. 3 D.L.R. 2d 641 (1956).

In short, while the free passage provisions of article 3 of the Jay Treaty as they relate to native Americans have not been definitely annulled, they have little present-day significance. Rights of passage by Canadian Indians into the United States are defined by judicial interpretation of 8 U.S.C. 1359, the effect of which is much the same whether it is thought of as implementing the Jay Treaty or simply as authorizing the continuance of a traditional practice.

Dept. of State File No. P77 0139-1366.

Republic of China

On September 8, 1977, Senator Barry M. Goldwater made an extended statement on the floor of the Senate concerning "the termina

tion of treaties, particularly the mutual defense treaty, between the United States and the Republic of China [signed on December 2, 1954 (TIAS 3178; 6 UST 2136; entered into force August 6, 1958)], without the approval of either the Senate or Congress." 123 Cong. Rec. S 14427 (daily ed., Sept. 8, 1977).

Senator Goldwater analyzed the Constitution, the view of many of the Presidents from James Madison through Harry S. Truman, the opinion of various constitutional scholars, court decisions, and other authorities. Senator Goldwater concluded that "the President may, in certain circumstances, determine whether or not: First, a treaty has been superseded by a later law or treaty which is inconsistent with the earlier treaty; second, a treaty has already been abrogated because of its serious violation by another party; or third, a treaty cannot be carried out because the conditions essential to its continued effectiveness no longer exist and the change is not the result of our own action." Id. S 14431. With regard the last proposition, he relied upon the Vienna Convention on the Law of Treaties done May 23, 1969 (Senate Exec. L, 92d Cong., 1st Sess.)

Senator Goldwater rejected the view expressed by the Legal Adviser of the Department of State in a 1936 memorandum to President Roosevelt "that the failure of the Congress or the Senate to approve the action of the President in giving notice of intention to terminate a treaty would be of no avail because once the notice is given, the foreign government concerned may decline to accept a withdrawal of such a notice." Id. S. 14433. Senator Goldwater took the position that "no President acting alone can abrogate, existing treaties with the Government of Taiwan unless he obtains the advice and consent of the Senate or the approval of the Congress." Id.

On June 15, 1977, President Carter signed into law the appropriation authorization act of the Department of State (P.L. 95-45), which, inter alia, contains a provision requiring any U.S. department or agency which enters into an international agreement to transmit a copy of the text of the agreement to the Department of State within twenty days after such agreement has been signed. The provision is an addition to the Case-Zablocki Act, 1 U.S.C. 112b, which requires that any international agreement other than a treaty be transmitted to the Congress as soon as practicable but in no event later than sixty days after such agreement has entered into force. The CaseZablocki Act, as thus amended, reads as follows: