Akins v. United States

• Decision Date: 31 March 1977
• Docket Number: Custom Appeal No. 76-12.
• Citation: 551 F.2d 1222
• Parties: Andrew AKINS v. The UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

551 F.2d 1222

Andrew AKINS v. The UNITED STATES.

Custom Appeal No. 76-12.

United States Court of Customs and Patent Appeals.

March 31, 1977.

David C. Crosby, Thomas N. Tureen, Barry A. Margolin, Dennis M. Montgomery, Calais, Maine, attys. of record, for appellant.

Rex E. Lee, Asst. Atty. Gen., Washington, D. C., David M. Cohen, Acting Chief, Customs Section, Velta A. Melnbrencis, New York City, attys. of record, for appellee.

Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Associate Judges.

BALDWIN, Judge.

This is an appeal by the importer (Akins) from a judgment of the Customs Court, C.D. 4629, 407 F.Supp. 748, 76 Cust.Ct. 15 (1976), denying his motion for summary judgment and granting the appellee's cross-motion for summary judgment. We affirm.

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).¹ As a Penobscot Indian, Akins claimed an exemption under Article III of the Treaty of Amity, Commerce and Navigation, with His Britannic Majesty, November 19, 1794, 8 Stat. 116, 117 (commonly known as the Jay Treaty) from paying customs duty on goods for his personal use.²

The Customs Court, relying on Karnuth v. United States ex rel. Albro, 279 U.S. 231, 49 S.Ct. 274, 73 L.Ed. 677 (1929), and 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), held that the provisions of Article III of the Jay Treaty relied on by the appellant had been abrogated by the War of 1812. In addition, the Customs Court considered Congressional intent and noted that subsequent to the signing of the Jay Treaty and prior to the War of 1812, a provision closely patterned after the duty exemption of Article III was included in the Tariff Act of 1799, ch. XXII, 1 Stat. 627.³ A provision, substantially the same, continued in tariff acts for 100 years. However, the repeal of the statutory exemption in 1897 and specific inclusion of personal goods in tariff acts thereafter, convinced the lower court that the personal privilege originally granted by Article III of the Jay Treaty had been nullified.

Historical Background

From 1675 to 1850 the Penobscot Tribe was formally banded together with several other tribes in the Wabanaki Confederacy whose territorial claims included an area extending over present day Nova Scotia to the present western boundary of Maine. Tribal members were free to travel and trade within that area without question until the time of the American Revolution.⁴ At the conclusion of the Revolutionary War, a boundary line was established between the United States and what is now Canada, dividing the confederated tribes' territory. In 1794 Great Britain and the United States adopted the Jay Treaty, which protected, in Article III, the free passage rights of the Indians to cross the new boundary. In addition, a duty exemption was provided to Indians for "their own proper goods and effects of whatever nature." Large packages or bales of goods were not excluded from the duty. Article XXVIII⁵ of the same treaty specifically made the first ten articles permanent, although the Supreme Court later explained in Karnuth, supra 279 U.S. at 242, 49 S.Ct. at 278:

The 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.⁶ 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.⁷ The pertinent language of that provision was patterned closely after the duty-free provision of Article III.⁸ 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 Nine⁹ 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.¹⁰ No implementing legislation was ever enacted.¹¹

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.

To summarize, language substantially identical to that of Article III of the Jay Treaty was continuously reenacted by Congress in tariff acts until 1897. Since 1897, no such exemption has been provided by statutes and duties have been enforced by customs officials. The historical and statutory developments since the ratification of the Jay Treaty are substantial. Their effect on Article III is discussed in several cases.

McCandless v. United States ex rel. Diabo, 25 F.2d 71 (CA3 1928), involved a Canadian-born, full-blooded, Iroquois Indian whom the Department of Labor sought to deport for his failure to comply with the Immigration Act of 1924, ch. 190, 43 Stat. 153. During the course of his employment, the appellant regularly crossed the Canadian border. He claimed he was exercising his right to pass and repass which was protected by Article III of the Jay Treaty. The Third Circuit agreed, holding that the right to pass and repass provided in Article III was permanent and vested. The court concluded that the Jay Treaty was only suspended and not abrogated by the War of 1812. It cited Society for the Propagation of the Gospel v. New Haven, 21 U.S. (8 Wheat.) 206, 219, 5 L.Ed. 662 (1823), in which the Court stated:

But we are not inclined to admit the doctrine urged at the bar, that treaties become extinguished, ipso facto, by war between the two governments, unless they should be revived by an express or implied renewal on the return of peace. Whatever may be the latitude of doctrine laid down by elementary writers on the law of nations, dealing in general terms, in relation to this subject, we are satisfied, that the doctrine contended for is not universally true. There may be treaties of such a nature, as to their object and import, as that war will put an end to them; but where treaties contemplate a permanent arrangement of territorial, and other national rights, or which, in their terms, are meant to provide for the event of an intervening war, it would be against every principle of just interpretation, to hold them extinguished by the event of war. If such were the law, even the treaty of 1783, so far as it fixed our limits, and acknowledged our independence, would be gone, and we should have had again to struggle for both upon original revolutionary principles. Such a construction was never asserted, and would be so monstrous as to supersede all reasoning. We think, therefore, that treaties stipulating for permanent rights, and general arrangements, and professing to aim at perpetuity, and to deal with the case of war as well as of peace, do not cease on the occurrence of war, but are, at most, only suspended while it lasts * * *.

The Supreme Court held that Article IX of the Jay Treaty¹² created vested property rights and stated that treaty rights of this nature were not abrogated by war.

In Karnuth, supra, the Supreme Court drew a distinction between vested property rights and mere privileges in the context of Article III of the Jay Treaty and employed a rationale different from McCandless. 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.¹³ They argued that Article III of the Jay Treaty permitted them to pass and to repass freely. After reviewing New Haven, on which the Third Circuit based its holding in McCandless, the Court distinguished between the rights guaranteed by Article IX¹⁴ and...