Akins v. United States, C. D. 4629

• Decision Date: 26 January 1976
• Docket Number: C. D. 4629,Court No. 74-11-03228.
• Citation: 407 F. Supp. 748
• Parties: Andrew AKINS v. UNITED STATES.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

407 F. Supp. 748

Andrew AKINS v. UNITED STATES.

C. D. 4629; Court No. 74-11-03228.

United States Customs Court.

January 26, 1976.

David C. Crosby, Thomas N. Tureen and Barry A. Margolin, Calais, Me., for plaintiff.

Rex E. Lee, Asst. Atty. Gen. (Velta A. Melnbrencis, trial atty.), New York City, for defendant.

OPINION ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

BOE, Chief Judge:

Plaintiff has moved for summary judgment under rule 8.2 of this court. Defendant, agreeing that no genuine issue of fact exists, has cross-moved for summary judgment in its favor.

From the pleadings and from the testimony submitted by affidavits, it appears that on July 16, 1974, plaintiff, a United States citizen, an Indian by race and a member of the Penobscot nation, entered the United States from Canada with hiking boots purchased in Canada for his own personal use. The merchandise in question was assessed at Calais, Maine border station with duty in the sum of $1.20 pursuant to item 700.45, Tariff Schedules of the United States, which provides:

SCHEDULE 7.—SPECIFIED PRODUCTS; MISCELLANEOUS AND NONENUMERATED PRODUCTS PART 1.—FOOTWEAR; * * * Subpart A.—Footwear * * * * * * * Footwear, of leather (except footwear with uppers of fibers) * * * * * * * Other * * * * * * * For other persons * * * * * * * Other * * * * * * * 700.45 Valued over $2.50 per pair ........... 10% ad val.

The assessed duty was paid by the plaintiff and protest formally made in which an exemption from any duty was claimed pursuant to article III of the Treaty of Amity, Commerce and Navigation, 8 Stat. 116, 117 (1794) (hereinafter referred to as the Jay Treaty). The protest was denied and a summons timely filed thus commencing the within civil action.

The defendant in its cross-motion denies the contention of the plaintiff and claims as its principal defense that article III of the Jay Treaty has been abrogated by the War of 1812.

I

Article III of the Jay Treaty provides:

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. But it is understood, that this article does not extend to the admission of vessels of the United States into the sea-ports, harbours, bays, or creeks of his Majesty's said territories; nor into such parts of the rivers in his Majesty's said territories as are between the mouth thereof, and the highest port of entry from the sea, except in small vessels trading bona fide between Montreal and Quebec, under such regulations as shall be established to prevent the possibility of any frauds in this respect. Nor to the admission of British vessels from the sea into the rivers of the United States, beyond the highest ports of entry for foreign vessels from the sea. The river Mississippi shall, however, according to the treaty of peace, be entirely open to both parties; and it is further agreed, that all the ports and places on its eastern side, to whichsoever of the parties belonging, may freely be resorted to and used by both parties, in as ample a manner as any of the Atlantic ports or places of the United States, or any of the ports or places of his Majesty in Great-Britain.

All goods and merchandize whose importation into his Majesty's said territories in America, shall not be entirely prohibited, may freely, for the purposes of commerce, be carried into the same manner aforesaid, by the citizens of the United States, and such goods and merchandize shall be subject to no higher or other duties, than would be payable to his Majesty's subjects on the importation of the same from Europe into the said territories. And in like manner, all goods and merchandize whose importation into the United States shall not be wholly prohibited, may freely, for the purposes of commerce, be carried into the same, in the manner aforesaid, by his Majesty's subjects, and such goods and merchandize shall be subject to no higher or other duties, than would be payable by the citizens of the United States on the importation of the same in American vessels into the Atlantic ports of the said states. And all goods not prohibited to be exported from the said territories respectively, may in like manner be carried out of the same by the two parties respectively, paying duty as aforesaid.

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.¹

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, 5 L.Ed. 662 (1823), adhering to a more flexible construction with respect to the doctrine relating to treaty abrogation, therein 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 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 as aforesaid 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, United States 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.

By way of historical background, the court pointed out that the boundary line between Canada and the United States — defined by the Jay Treaty — passed through lands held and occupied by a confederation of Indian tribes or nations.²

Throughout the Revolutionary War as well as the War of 1812, the confederacy as a whole remained neutral leaving to the individual tribe the discretion to side with either belligerent. It would appear that the apparent neutrality of the Indian confederacy as a whole during the respective periods of hostility between the United States and Great Britain influenced the court of appeals in its conclusion that "* * * there was no reason why either of the contending nations in 1812 should desire to change the status of the Six Nations and thereby anger and drive them into hostilities." 25 F.2d at 72. See also Akins v. Saxbe, 380 F.Supp. 1210, 1212-13 (N.D.Me.1974).

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...