Akins v. Saxbe, Civ. No. 2031 N. D.

• Court: United States District Courts. 1st Circuit. United States District Court (Maine)
• Citation: 380 F. Supp. 1210
• Docket Number: Civ. No. 2031 N. D.
• Parties: Andrew AKINS et al., Plaintiffs, v. William SAXBE et al., Defendants.
• Decision Date: 20 June 1974

380 F. Supp. 1210

Andrew AKINS et al., Plaintiffs,
v.
William SAXBE et al., Defendants.

Civ. No. 2031 N. D.

United States District Court, D. Maine, N. D.

June 20, 1974.

380 F. Supp. 1211

COPYRIGHT MATERIAL OMITTED

380 F. Supp. 1212

David C. Crosby and Thomas N. Tureen, Calais, Me., Robert N. Moore, Jr., Houlton, Me., for plaintiffs

Peter Mills, U. S. Atty., Portland, Me., Anthony S. Borwick, Atty., Dept. of Justice, Washington, D. C., for defendants.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

Plaintiffs in this action are eight individual members of the Micmac, Maliseet, Penobscot and Passamaquoddy Indian Tribes, and the Indian Township Passamaquoddy Basket Cooperative, Inc., an Indian-owned agricultural cooperative organized under Maine law. Seven of the individual plaintiffs reside in Maine on the American side of the International Border between the United States and Canada, and one resides in New Brunswick on the Canadian side of the boundary. Defendants are the Secretary of the Treasury and the Attorney General of the United States. In the first claim for relief of the complaint, the individual plaintiffs resident in Maine seek a declaratory judgment that Article III of the Treaty of Amity, Commerce and Navigation of 1794 between the United States and Great Britain (the Jay Treaty) exempts from any customs duty goods purchased in Canada and brought into the United States by the plaintiffs for their personal use and not for resale, and request an order enjoining the Secretary from levying and collecting any customs duty on such goods. In the second claim for relief, the Cooperative seeks a declaratory judgment that Article III of the Jay Treaty exempts from customs duties both materials gathered or purchased in Canada and brought by the Cooperative into the United States for use by its members in manufacturing "distinctively Indian handicrafts" and Indian handicrafts manufactured in Canada and brought into the United States by the Cooperative or Canadian-born Indians for sale through the Cooperative. In the third claim for relief, three Canadian-born Indians seek a declaratory judgment that 8 U.S.C. § 1359 exempts them from the registration and visa requirements applying to aliens under the Immigration and Naturalization laws, and request an order enjoining the Attorney General from requiring the plaintiffs to register as aliens and to obtain immigration visas. Plaintiffs predicate jurisdiction of the first two claims upon 28 U.S.C. §§ 1331, 1337, 1340 and 1361 and jurisdiction of the third claim upon 28 U.S.C. §§ 1331, 1337 and 1361. Presently before the Court are the motion of the Secretary to dismiss the first two claims on the ground that this Court lacks jurisdiction over the subject matter of these claims and the cross-motions of the Attorney General and of the plaintiffs for summary judgment on the third claim for relief. For the reasons to be stated, the Court grants the Secretary's motion to dismiss the first two claims and grants plaintiffs' motion for summary judgment on the third claim.

The Historical Background

There is no dispute as to the historical background of the present litigation. From approximately 1675 until 1850, the Micmac, Maliseet, Penobscot and Passamaquoddy Indian Tribes constituted the

380 F. Supp. 1213

Wabanaki Confederacy. The territory claimed by the member tribes of the Confederacy and in which they traveled and traded freely encompassed the region from what is today the western boundary of the State of Maine to Nova Scotia, Canada. During the Revolutionary War, these four tribes fought with the American colonies against Great Britain. The Peace of Paris, which ended the Revolutionary War in 1783, established the International Boundary between the newly-formed United States and the remaining British possessions in Canada, which ran through the middle of the territory occupied by the four tribes of the Wabanaki Confederacy. Apparently in response to anxiety and confusion among the tribes as to their status with respect to the International Boundary, in 1794 the United States and Great Britain adopted Article III of the Jay Treaty, 8 Stat. 116, which provided in relevant 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, 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 import 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.

Article XXVIII of the Jay Treaty also provided:

It is agreed, that the first ten articles of this treaty shall be permanent . . . .

In 1796, the United States and Great Britain further agreed to the Explanatory Article of May 4, 1796, 8 Stat. 130, which provided in part:

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.

The provision of Article III of the Jay Treaty relating to duties was incorporated in various tariff acts until 1897, but the Article III language granting Indians the right to enter duty free was not included in the Tariff Act of 1897, 30 Stat. 151, and it has not been included in any subsequent tariff act.

Although the exact time when duties were first charged on goods brought across the border by Indians is not known, in 1937, the Court of Customs and Patent Appeals held in United States v. Garrow, 88 F.2d 318 (C.C.P.A.), cert. denied, 302 U.S. 695, 58 S.Ct. 14, 82 L.Ed. 537 (1937), that Article III of the Jay Treaty had been abrogated by the War of 1812, and that the right of Indians to enter duty-free, insofar as it had been created by statute, lapsed in 1897 when the Article III language incorporated

380 F. Supp. 1214

in previous tariff acts was not renewed. Relying on the court's ruling in Garrow, the Secretary, through the Bureau of the Customs, has been levying customs duties on goods brought into the United States by Indians, including these plaintiffs

Immigration officials evidently recognized a right in Canadian-born Indians to cross the International Boundary and to remain in the United States free from the usual restrictions placed on aliens until the passage of the Immigration and Nationality Act of 1924, 43 Stat. 153, at which time the Department of Labor began deporting Canadian-born Indians who had entered the country without registering as aliens and without obtaining immigrant visas. Following a successful court challenge to the Department's policy, United States ex rel. Diabo v. McCandless, 18 F.2d 282 (E.D.Pa.1927), aff'd, 25 F.2d 71 (3rd Cir. 1928), Congress, in 1928, enacted legislation, currently codified (as amended) as 8 U.S.C. § 1359, which provides as follows:

Nothing in this subchapter dealing with immigration shall be construed to affect the right of American Indians born in Canada to pass the borders of the United States, but such right shall extend only to persons who possess at least 50 per centum of blood of the American Indian race.

It has been, and continues to be, the position of the Attorney General that Section 1359 exempts Canadian-born Indians from the pre-entry alien registration and visa requirements of the Immigration and Nationality Act of 1952, as amended, 8 U.S.C. § 1301,¹ but that Section 1359 does not exempt them from the post-entry alien registration and notification requirements of the Act, 8 U. S.C. §§ 1302(a), 1305, 1306, if they wish to remain in the United States for 30 days or more.² In accordance with this policy, the Attorney General has not required Canadian-born Indians to register as aliens and obtain immigrant visas as a condition of entry into the United States, but the Attorney General, acting through officers and agents of the Immigration and Naturalization Service, has required Canadian-born Indians, including these plaintiffs, who wish to stay in the United States for more than 30 days to comply with the registration and reporting requirements of the Act.

The Motion to Dismiss the First and Second Claims for Relief

Plaintiffs' first and second claims for relief are based on Article III of the Jay Treaty and the Explanatory Article of 1796, which plaintiffs contend exempt from customs duties goods purchased by them in Canada and brought into the United States for personal use and not for resale. The Court does not, however, reach the merits of these claims, inasmuch as the Court is persuaded Congress has committed the issue here presented to the exclusive jurisdiction of the Customs Court.

380 F. Supp. 1215

The Customs...