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contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be invalidated or impaired. 25 U.S.C. 71. Since 1832 the Commissioner of Indian Affairs under the direction of the Secretary of the Interior has had the power of "management of all Indian affairs and of all matters arising out of Indian relations." 25 U.S.C. 2.
Dept. of State File No. P77 0009-8. Treaties with American Indian tribes appear in a document published by the Dept. of the Interior entitled "Indian Affairs, Laws and Treaties."
Amendment and Modification
The need for an expedited procedure whereby amendments to a treaty's technical annex may be brought into force rapidly among states willing to be bound by them was recognized by the Third Session of the Diplomatic Conference on the Reaffirmation of International Humanitarian Law Applicable in Armed Conflicts, held at Geneva April 21-June 11, 1976. The Conference was negotiating two protocols to the Geneva Conventions of 1949 for the Protection of War Victims. See post, Ch. 14, § 2, p. 687.
Based on a proposal by the United States, Canada, and the United Kingdom, Committee II of the Conference adopted a draft article which provides for meetings of technical experts, convened at periodic intervals by the International Committee of the Red Cross (ICRC), to review the Technical Annex and prepare such amendments as appear desirable. Amendments proposed by such a meeting of experts would be submitted to a diplomatic conference if the ICRC or one-third of the parties so request, in which case they would require a two-thirds majority of those present and voting to be adopted. Amendments proposed by the conference would be considered as accepted one year after their terms had been communicated to the parties unless rejected by no less than one-third of the parties. They would become effective three months after their acceptance as to all parties except those that had expressly rejected them within the one-year period.
The draft text, as developed at the Third Session, follows:
[Article 18 bis-Revision of the Annex]
1. Not later than four years after the coming into force of the Protocol and thereafter at intervals of not less than four years, the International Committee of the Red Cross shall consult the high contracting parties concerning the Annex and, if it considers it necessary, may propose a meeting of technical experts to review the Annex and to propose such amendments to it as may appear to be desirable. Unless, within six months of the communication of a proposal for such a meeting to the high contracting parties, one-third of them objects, the International Committee of the
Red Cross shall convene the meeting, inviting also observers of appropriate international organizations. Such a meeting shall also be convened by the International Committee of the Red Cross at any time at the request of one-third of the high contracting parties.
2. The depositary state shall convene a conference of the high contracting parties and the parties to the conventions to consider amendments proposed by the meeting of technical experts, if, following that meeting, the International Committee of the Red Cross or one-third of the high contracting parties so request.
3. Amendments to the Annex may be adopted at such a conference by a two-thirds majority of the high contracting parties present and voting.
4. The depositary state shall communicate any amendment so adopted to the high contracting parties and the parties to the conventions. The amendment shall be considered to have been accepted at the end of a period of one year after it has been so communicated, unless within that period a declaration of nonacceptance to the amendment has been communicated to the depositary state by not less than onethird of the high contracting parties.
5. An amendment considered to have been accepted in accordance with paragraph 4 above shall enter into force three months after its acceptance for all high contracting parties other than those which have made a declaration of nonacceptance in accordance with that paragraph. Any party making such a declaration may at any time withdraw it and the amendment will then enter into force for that party
three months thereafter.
6. The depositary state shall notify the high contracting parties and the parties to the conventions of the entry into force of any amendment, the parties bound thereby. the date of entry into force in relation to each party, declarations of nonacceptance made in accordance with paragraph 4, and withdrawals of such declarations. U.S. Del. Report on Third Session, Oct. 15, 1976.
Invalidity, Termination and Suspension of Operation
The U.S. Customs Court, in an opinion delivered January 26, 1976, in Akins v. United States, C. D. 4629, stated that the provisions of article III of the Treaty of Amity, Commerce and Navigation between the United States and Great Britain signed in 1794 ("the Jay Treaty," TS 105, 8 Stat. 116) had been abrogated and were no longer in force and effect as they relate to the right of Indians passing and repassing the U.S.-Canadian border to be exempt from duty on merchandise carried across. Plaintiff, a U.S. citizen, an Indian by race, entered the United States from Canada with hiking boots purchased in Canada for his own personal use. The merchandise was assessed at the border station with duty in the sum of $1.20. Plaintiff paid the assessed duty but protested formally, claiming an exemption from duty pursuant to article III of the Jay Treaty. Defendant claimed as its principal defense that article III of the Jay Treaty had been abrogated by the War of 1812. That article provides, in part:
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...
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.
It is further provided in article XXVIII of the Jay Treaty that article III is permanent in nature.
The Customs Court granted the defendant's motion for summary judgment, after reviewing the cases dealing with the effect of war on the Jay Treaty. The following are excerpts from the Court's opinion:
There has been a lack of uniformity with respect to the effect of war upon a treaty existing between belligerent countries. Authorities on international law have expressed divergent opinions. Although in early years the doctrine generally prevailed that war, ipso facto, abrogated all treaties uniformally, it has become more universally accepted that the abrogation of a treaty provision is dependent upon its intrinsic nature and character.
In the early history of this country, the Supreme Court in the case of Society for the Propagation of the Gospel v. New Haven, 21 U.S. (8 Wheat.) 206, 219 (1823), adhering to a more flexible construction with respect to the doctrine relating to treaty abrogation, therein stated:
[T]reaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts; and unless they are waived by the parties, or new and repugnant stipulations are made, they revive in their operation at the return of peace.
The decision in the foregoing case affirmed the right of a British corporation to continue to own and hold lands in the State of Vermont by virtue of the protective provisions of article VI of the treaty of 1783, 8 Stat. 80, 83, and confirmed by article IX of the Jay Treaty. Inasmuch as the provisions of the respective treaties were construed as relating to and affecting vested property rights to be owned and transferred in perpetuity, the provisions thereof were held not to be abrogated by the War of 1812.
The decision of the Supreme Court in Society for the Propagation of the Gospel v. New Haven, supra, relating... to the survival of vested property rights confirmed by article IX of the Jay Treaty, was applied in the case of McCandless v. United States ex rel. Diabo, 25 F.2d 71 (3d Cir. 1928), to the right granted by article III of the Jay Treaty to the subjects of Great Britain, U.S. citizens and all
Indians to “pass" and "repass" the boundary between Canada and the United States. The court of appeals therein found that an Indian, born on a reservation in Canada, who made a number of trips from Canada to the United States in the course of his employment was not in violation of existing immigration laws. In so doing, the court concluded that the provision of article III granting the right to "pass" and "repass" was a permanent and vested right which at the most was only suspended and not abrogated by the War of 1812.
Plaintiff has urged that the McCandless decision is controlling of the issue involved in the case at bar, notwithstanding the subsequent decision of the United States Supreme Court in the case of Karnuth v. United States ex rel. Albro, 279 U.S. 231 (1929). In the Karnuth case, two Canadian residents in support of their entry into the United States free from existing immigration restrictions invoked specifically the first paragraph of article III of the Jay Treaty granting: "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 court citing with approval the decision in the case of Society for the Propagation of the Gospel v. New Haven, supra, further defined the distinction between treaty provisions creating vested property rights and those rights and privileges promissory and prospective in character.
Because of the possibility of treasonable intercourse that might occur during hostilities as a result of unrestricted passage and because such right of free passage might "be incompatible with conditions following the termination of war," the court determined that the provisions of article III relating to "passing" and "repassing" could not be deemed vested property rights but rather promissory and prospective in character and, accordingly, abrogated by the War of 1812.
It is deserving of note that in the cases of McCandless v. United States and Karnuth v. United States, previously referred to, the issue in question was restricted to the provisions of the first paragraph of article III relating solely to the free "passing" and repassing" of persons across the boundary between the United States and Canada. However, in the case of United States v. Garrow, 24 CCPA 410, 88 F. 2d 318 (1937), cert. denied, 302 U.S. 695 (1937), the Court of Customs and Patent Appeals considered the issue closely akin to that existing in the case at bar. In the Garrow case an Indian, residing in Canada, entered the United States bringing with her certain baskets. Protesting the imposition of a duty on the baskets pursuant to paragraph 411 of section 1 of the Tariff Act of 1930, the plaintiff claimed an exemption therefrom pursuant to the provisions of article III of the Jay Treaty. The court, following the reasoning of the United States Supreme Court in the Karnuth decision, held that the provisions of
article III of the Jay Treaty had been abrogated by the War of 1812, and, accordingly, the protestant was subject to the duty exacted on the merchandise carried with her.
The plaintiff, however, urges that the reliance of the court in the Garrow decision upon the Karnuth case was misplaced in that the provision of article III of the Jay Treaty relating to the exemption of Indians from duty when carrying their personal belongings and effects is separable from that portion of the article relating to the free passage of the U.S. citizens, British subjects and Indians. This court recognizes that the abrogation of one provision of a treaty necessarily does not strike down the entire treaty nor other independent provisions thereof which should properly survive. Techt v. Hughes, 128 N.E. 185 (N.Y. Ct. App. 1920), cert. denied, 254 U.S. 643 (1920). However, viewing the respective provisions of article III independently as well as in their entirety, it would appear that a consistent logical construction thereof would preclude the application of the doctrine of separability to the provisions of the treaty here under consideration.
This court is likewise unwilling to accept the observation of the court of appeals in the McCandless case that Indians, not signatories to the treaty but third party beneficiaries thereunder, should be afforded greater rights than the signatories themselves. The contracting parties in executing the Jay Treaty were the United States and Great Britain. The citizens and subjects of each country including the Indians residing within their respective territories continued to enjoy such rights and privileges provided by article III thereof only as long as the agreement itself remained binding between the original contracting parties. No issue is taken with the several decisions cited by the plaintiff in which it has been repeatedly held that the promises and obligations of the United States Government to the Indian resident within its boundaries must be upheld and that the abrogation of such promises cannot be lightly implied. . . . However, an examination of the authorities in question will reveal that the statement so often enunicated by the courts has been applicable to those cases involving treaties made by the United States Government directly with the Indian tribe or tribes. No parallel can be drawn therefrom with the applicable provisions of article III of the Jay Treaty under consideration. herein.
[I]t is of interest to note the construction placed by the courts of Canada on the question here in issue. In the case of Francis v. The Queen, 4 Dominion Law Reports 760 (1955), a petition was filed in the Exchequer Court of Canada by a Canadian Indian seeking an exemption under the provisions of article III of the Jay Treaty from a duty imposed on personal goods brought by him from the United States. The court, holding that the provisions of article III had been abrogated by the War of 1812, cited with approval the decisions of Karnuth v. United States, supra, and United States v. Garrow, supra, stating (4 D.L.R. at 776):