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United States as early as 1974 and were most recently reaffirmed in June of this year when the Compact was initialed by both parties. The assertion that the Compact "constitutes a breach of the Trusteeship Agreement and is a gross violation of the basic principles of self-determination" cannot be reconciled with these facts and must be rejected.
The legal ramifications of the separate administration of the Marianas, in effect since April 1, should be clear to all members of the Council. This action did not constitute a modification of the Trusteeship Agreement, which remains in effect for the entire Trust Territory. Care was taken in negotiating the Covenant to Establish a Commonwealth of the Northern Mariana Islands to assure that the document would not conflict with United States obligations under the Trusteeship Agreement. The agreement will not become fully effective and the Commonwealth will not be established until termination of the Trusteeship Agreement, a subject which we intend to take up with the Trusteeship Council and the Security Council at the appropriate time.
Press Release USUN-76(76), July 8, 1976, and USUN-191(76), rev. 1, Dec. 22, 1976. Taxation
In Groves v. United States, 533 F.2d 1376 (1976), the U.S. Court of Appeals for the Fifth Circuit, on June 25, 1976, held that the government of the Trust Territory of the Pacific Islands is an "agency" of the United States for purposes of section 911(a)(1) of the Internal Revenue Code (26 U.S.C. 911(a)(1)). That section excludes from gross income earned income from sources without the United States except amounts paid by the United States or any agency of the United States.
Taxpayers had brought suit for refund of Federal income taxes on the ground that income earned as teachers employed by the government of the Trust Territory of the Pacific Islands was excludable from gross income. The U.S. District Court for the Northern District of Florida entered judgment in favor of the United States, and the taxpayers appealed.
The Court of Appeals affirmed, holding that although the 1947 trusteeship agreement under which the United States administers the Trust Territory of the Pacific Islands (TIAS 1665; 61 Stat. 3301; 12 Bevans 951) provides that the administering authority shall promote the development of the inhabitants of the territory toward self-government or independence, the United States, as administering authority, is carrying out a governmental function directed to attainment of that objective. The Court distinguished the case from People of Saipan v. U.S. Department of the Interior, 502 F.2d 90 (1974), cert. denied, 420 U.S. 1003 (1975) (see the 1974 Digest,
pp. 60-61), which held that the Trust Territory government is not an "agency" for purposes of review under the Administrative Procedure Act (5 U.S.C. 701 et seq.) and therefore not an "agency" for purposes of the National Environmental Policy Act (42 U.S.C. 4321 et seq.). It noted that the Court, in Saipan, supra, had stated in effect that its position was not a precedent in cases involving other statutes, including particularly those relating to income taxation.
The Court rejected appellants' argument that it was necessary for the Trust Territory government to have authority to bind the United States to a contract in order for it to be the means of carrying out a government function of the United States. It also rejected an argument based on lack of sovereignty over the Trust Territory government, coupled with the existence of Trust Territory sovereignty to levy taxes. The Court said that sovereignty is not "the touchstone of power and responsibility for carrying out a governmental function of the United States."
Other Subjects of International Law
Robert E. Dalton, Assistant Legal Adviser for Security and Consular Affairs, Department of State, wrote a memorandum dated May 5, 1976, concerning the U.S. citizenship status of persons born in the Canal Zone. The memorandum states:
The Canal Zone has generally been treated as foreign territory for nationality purposes. See, e.g., 3 Hackworth 118 (person born there of alien parents held by Department not to have acquired U.S. citizenship). It is specifically excluded from the definition of the United States and its outlying possessions in the Nationality Act of 1940 (Section 101(e), 54 Stat. 1137) and omitted from the corresponding definition in the Immigration and Nationality Act of 1952 (Section 101(a) (29), 8 U.S.C. 1101(a) (19)). Neither of these statutes would support a claim to U.S. nationality by a person born to alien parents in the Canal Zone.
Section 303(a) of the Immigration and Nationality Act of 1952, 8 U.S.C. 1403, deals with the U.S. citizenship of a person born in the Canal Zone to a citizen or citizens of the United States. It reads as follows:
Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this Act, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.
The section set out above is derived from section 2 of the Act of August 4, 1937, 50 Stat. 558. Persons born on or after that date and falling within the terms of that section acquire U.S. citizenship at birth.
Dept. of State File No. P76 0078 386.
Loss of Nationality
Byron Keith Huffman, Jr., Assistant Legal Adviser for Near Eastern and South Asian Affairs, Department of State, in a memorandum dated March 18, 1976, considered whether service by a U.S. citizen in foreign armed forces may jeopardize that person's
U.S. nationality. He concluded, on the basis of currently prevailing U.S. court decisions, (1) that a person may be deprived of his nationality only through voluntary relinquishment; (2) that voluntary service in foreign armed forces not engaged in hostilities against the United States would not alone be sufficient evidence of the requisite voluntary relinquishment; (3) but that a court would consider such service to be relevant along with other evidence of expatriative intent in determining whether U.S. nationality had been voluntarily relinquished. The following is an excerpt from Mr. Huffman's memorandum:
Since the creation of the United States, the U.S. Congress and courts have struggled with the issue whether the U.S. Constitution permits the U.S. Government to deprive a person of U.S. nationality because of conduct other than a voluntary, written renunciation. The issue (and tenor of the constitutional debate) is best framed by the vehement opposing opinions of the late Justices Black and Harlan in Afroyim v. Rusk, 387 U.S. 253, 257-267, 271-293 (1967) (discussed subsequently), which by a bare 5-4 margin overruled Perez v. Brownell, 356 U.S. 44 (1958) (also a 5-4 decision) by holding that a vote in a foreign election was not adequate evidence of a voluntary renunciation of nationality. In summary, Justice Black reasoned that the 14th Amendment to the Constitution reflected the national judgment that no group of U.S. nationals temporarily in office should be able to deprive another group of U.S. nationals of their nationality. Justice Harlan (who had been in the majority in Perez) maintained that Congress's constitutional powers enabled it to expatriate any national who intentionally committed acts prejudicial to U.S.-foreign relations and indicative of a dilution of his allegiance to the United States.
The current Immigration and Nationality Act reflects Justice Harlan's view by providing in part that: ". a person who is a national of the United States . . . shall lose his nationality by(among other things):
(1) obtaining nationalization in a foreign state upon his own application...
(2) taking on oath... of allegiance to a foreign state
(3) entering, or serving in, the armed forces of a foreign state, unless prior to such entry or service, such entry or service is specifically authorized in writing by the Secretary of State and the Secretary of Defense . . . ;
(4)... accepting . . employment under the government of a foreign state . . . for which . . . an oath of allegiance is required;
(5) voting in a political election in a foreign state . . . (8 U.S.C. 1481(a) 1-5)."
Prior to the Afroyim decision, courts rarely questioned the automatic, expatriative effect of acts set forth in the law and focussed heavily upon the voluntary character of the act in question. For example, In Nishekawa v. Dulles, 356 U.S. 129 (1958), the Supreme Court upheld a person's claim that he did not
lose his U.S. nationality by being conscripted into and serving in the Japanese army in the Second World War. In so deciding, the Court reasoned that since the consequences of nationality loss were so drastic, the burden was upon the U.S. Government to persuade the trier of fact by clear, convincing and unequivocal evidence that the act showing renunciation of nationality was performed voluntarily. Other illustrative conscription cases in accord are: Lehman v. Acheson, 206 F.2d 592 (3d Cir., 1953) (Swiss Army); Tomasicchio v. Acheson, 98 F. Supp. 166 (D. D. C., 1951) (Italian Army); Gensheimer v. Dulles, 117 F. Supp. 836 (D. N.J., 1954) (German Army); Moldoveanu v. Dulles, 168 F. Supp. 1 (E.D. Mich., 1950) (Roumanian Army).
In the Afroyim case, as noted above, the Supreme Court held unconstitutional the section of the Immigration and Nationality Act which provided for loss of nationality by voting in a foreign political election. Though the case involved participation in a Knesset election in Israel, the decision makes clear that the Court was concerned only with the facts that the political election was foreign and that participation in it was admittedly voluntary. In summary, as noted, five of the nine Justices held that no U.S. national could be deprived of his nationality unless he or she had voluntarily relinquished it. The Court thereby decided that the expatriative motivation of each act should be examined rather than merely the voluntary character of an action specified by statute to be expatriative.
Since the Afroyim decision did not specify what, if any, types of conduct, other than express written renunciations, might be regarded as voluntary relinquishment of nationality, the Attorney General issued an interpretive opinion on this subject. (42 Ops. Att'y Gen. 34 (1969). In summary, he concluded: "Voluntary relinquishment is not confined to a written renunciation . . . can also be manifested by other actions declared expatriative under the Act, if such actions are in derogation of allegiance to this country." He added, however, that in light of the Court's general reservations about denaturalization, the Government would be expected to carry the heavy burden of proving that the specific act in question was intended to abandon U.S. nationality. As examples the Attorney General noted that while acceptance of employment by a foreign government as a school teacher would not establish voluntary relinquishment of nationality the acceptance of an important political post in a foreign government might well do so. Similarly, while enlistment in foreign armed forces would not necessarily evidence an intent to abandon U.S. nationality, enlistment in forces engaged in hostilities against the U.S. would be highly persuasive evidence of such intent.
Decisions since Afroyim bear out the Attorney General's interpretation. In Peter v. Secretary of State, 347 F. Supp. 1035 (D.D.C., 1972), the Court held that the U.S. Government had failed to prove that a person had voluntarily relinquished her U.S. nationality by accepting employment with the Government of Hungary radio service. In Baker v. Rusk, 296 F. Supp. 1244 (C.D. Cal., 1969), the Court held that a person had not voluntarily relinquished his U.S. nationality by taking an oath of allegiance to the King of England as part of the process of qualifying to practice law in Canada in