United States v. Claus

• Decision Date: 31 July 1944
• Docket Number: No. 3615-C.,3615-C.
• Citation: 63 F. Supp. 433
• Parties: UNITED STATES v. CLAUS.
• Court: U.S. District Court — Western District of New York

63 F. Supp. 433

UNITED STATES v. CLAUS.

No. 3615-C.

District Court, W. D. New York.

July 31, 1944.

George L. Grobe, U. S. Atty., of Buffalo, N. Y., for plaintiff.

Marvin M. Marcus, Jr., of Buffalo, N. Y., for defendant.

KNIGHT, District Judge.

Defendant herein has been indicted for his failure to appear for induction, contrary to the provisions of the Selective Training and Service Act, 50 U.S.C.A.Appendix, § 301 et seq. He is an Iroquois Indian, of the Mohawk Tribe, whose reservation is the Grand River Reservation, at Brantford, Ontario, Canada.

Based on his questionnaire wherein he stated himself to be a resident of the city of Buffalo, Erie County, New York, defendant was classified 1A by the local Selective Service Board. Upon appeal the classification was sustained.

Defendant has also registered as an alien, with his residence stated to be at Buffalo. For the last few years he has been employed as a painter by a Buffalo contractor.

Defendant has filed a Plea in Bar which must be denied for the reason that the classification made is final, if it is not arbitrary, capricious and is not a denial of substantial justice. United States v. Mroz, 7 Cir., 136 F.2d 221; Rase v. United States, 129 F.2d 204, 207; Seele v. United States, 8 Cir., 133 F.2d 1015; Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305; United States v. Goff, 4 Cir., 135 F.2d 610; Graf v. Mallon, 8 Cir., 138 F.2d 230; United States v. Messersmith, 7 Cir., 138 F.2d 599. Nor can defendant be granted relief because he, as an Indian, is given particular rights by the Jay Treaty, Article 3, 8 Stat. 117, and is not subject to the provisions of the Selective Training and Service Act, in that he is not an "alien" within the scope of the Selective Service Law. "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 only other reference to Indians on the treaty deals with duty of entry rights.)

Nothing is found in the foregoing excerpt from the treaty that sustains defendant's claim. Even if this or some other treaty did grant alien Canadian Indian registrants an exemption from military service, it would be superseded and abrogated by the Selective Training and Service Act of 1940 as amended. "The effect of treaties on acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty." The Cherokee...