American Formosan Citizen Public Comment and Petition re Docket FR Doc. Defense Federal Acquisition Regulation Supplement; World Trade Organization Government Procurement Agreement Designated Country (Document ID DARS_FRDOC_0001-0280)
Apparently the Department of Defense considers that the Constitution does not require the Department to defend the territorial claims of the United States or the territory subject to the jurisdiction or control of the United States. It is thus important the Department ensure that the rule provide that it is the Department which is responsible for the defense of Formosa and protection for those natives by birth on Formosa which is American and not foreign to the US regardless of the travel documents they use for identification under compulsion and duress and fraud and mistake of law and fact (the Fourteenth Amendment rights to nationality, whether as a US citizen or noncitizen national thereby does not depend on any paperwork from the government as proof of the status, but on the constitutional terms themselves). The rule should be clarified to state that since defense for Formosa lies with the US DOD, the US military government on Formosa will indicate their constitutional US nationality for the reasons relayed herein. Native born American Formosans, native Formosans, are not aliens to the US. The rule should clarify that DOD provision of defense articles to the Chinese authorities in exile on Formosa is not contrary to but supplemental to the constitutional Department duty to defense of the native Formosans. Additionally use of the “Republic of China” or “Taiwan Ministry of Foreign Affairs” passport is not a “declaration of citizenship” by native Formosans that they have voluntarily expatriated themselves from a constitutional American nationality of which the Department and various Departments of our government and our US military government Formosa have intentionally kept well hidden from them. The rule should be clarified to state that the Department does not consider statements by native Formosans on their applications for defense materiel from the US to be “declarations of citizenship” or alienage, but rather will adjudicate those claims or status issues on the basis of the command proprio motu and ex vigore of the Thirteenth and Fourteenth articles of amendment to the US Constitution as explained below, by providing means of local territorial defense for Formosa consistent with the DOD constitutional responsibilities to defend Formosa from all enemies foreign or domestic including from any treason or seditious conspiracy claims asserted by the Chinese Kuomintang or the Taiwan High Court prosecutors for the US military government Formosa acting by and for the US that Roger CS Lin, Shuibian Chen, the Justices of the US Supreme Court, US Court of Appeals for the DC Circuit and Armed Forces and USDC-DC and USDC-Minnesota are guilty of treason against the Republic of China in exile on American Formosa.
In response to the portions of the rule excerpted at the end of the comments, far below, the following reply is given for consideration by the Department:
1. The Comptroller General has ruled that without statutory authorization, the US may not delegate governmental functions over our territory of Formosa for the defense thereof. If Taiwan were a foreign country, under 22 USC 3303(1), and if AIT is a contractor of DOS under 22 USC 3301 et seq, there is still a need for specifically stating that the US has authorized civil affairs administration of Formosa to the Taiwan authorities in conjunction with AIT supervision thereof for the DOD through the DOS. Moreover AIT is not an "agency" nor does it use the "facilities and services" of the DOS. If DOS is the principal, and AIT the agent, under their contract, then it is DOS which uses the facilities and services of AIT, not vice versa.
2. Formosa is a United States entrusted territory which is non-self governing. All US government regulations regulating the status of Formosan natives regards them as residents of Taiwan, without inferring recognition of any foreign government’s claims that these persons are their nationals.
3. The TRA, 22 USC 3301 et seq, declares that “Taiwan” in the sense of the “Republic of China” , is in exile, in that that entity is referred to as “the governing authorities on Taiwan recognized by the United States as the Republic of China prior to January 1, 1979”, if Congress had intended to establish nationality for the native Formosans foreign to the sovereignty of the US, then the statute would have read “the governing authorities of Taiwan”, instead of using the geographic indicator, on Taiwan, to mean that those governing authorities were neither in nor of their own territory, that is, that the de jure status quo of Formosa remains unchanged by the Act, and Formosa remains non-self governing and outside the territory of the Republic of China, which governing authorities are located on Taiwan but are not of Taiwan.
4. 22 USC 3303(a) provides that US laws will generally apply to Taiwan, evincing the insular status of Formosa to the US in the status quo. 22 USC 3303(b) (1) “Whenever the laws of the United States refer or relate to foreign countries, nations, states, governments, or similar entities, such terms shall include and such laws shall apply with respect to Taiwan”, is also consistent with insular federal territorial status for Formosa subject to the jurisdiction of the US.
5. 22 USC 3303(b)(6) “For purposes of the Immigration and Nationality Act [8 U.S.C. 1101 et seq.], Taiwan may be treated in the manner specified in the first sentence of section 202(b) of that Act [8 U.S.C. 1152 (b)].” does not and cannot constitutionally involuntarily expatriate or denaturalize the native Formosans (under Rabang v Boyd, insular nationals may only be en masse denaturalized involuntarily if granted their de jure independence as a sovereign state after completing self-determination authorized by the US Congress).
6. 8 U.S.C. 1152 (b) “Rules for chargeability
Each independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions, shall be treated as a separate foreign state for the purposes of a numerical level established under subsection (a)(2) of this section when approved by the Secretary of State. All other inhabited lands shall be attributed to a foreign state specified by the Secretary of State.” is constitutionally ambiguous if it is understood by SSA, HHS, DHS, DOS, to mean that Formosa is “other than the United States and its outlying possessions” and other than “All other inhabited lands” because it does not state whether Congress intends Formosa to be considered for INA purposes to be an “independent country, self-governing dominion, mandated territory, and territory under the international trusteeship system of the United Nations, other than the United States and its outlying possessions”. The statute is facially unconstitutional because it appears to deprive native Formosans of their constitutional 13th and 14th amendment US nationality under the laws of war and conquest and the Treaty of Peace with Japan by which Dulles said the US had acquired sovereignty ad interim albeit in trust nevertheless over Formosa by subterfuge, without prejudice to other entities political aspirations or claims to the sovereignty thereof, without recognizing their independence, or even declaring whether they are deemed to be an independent country, self-governing dominion, mandated territory, or a territory under the international trusteeship system of the United Nations or even if Congress intended that Formosa is not other than the United States and its outlying possessions, but rather Formosa is within the United States and its outlying possessions. If Congress considers Formosa is “a territory under the international trusteeship system of the United Nations”, as the Aide Memoire of Dulles to the Republic of China Ambassador Wellington Koo, the PRC via the USSR and the Far Eastern Commission members, dated October 25, 1950, and found in the “Foreign Relations of the United States” states the US has assumed her responsibilities for Formosa as Administering Authority under Article 73 of the UN Charter, and USUN document S/1716 was submitted under UN Charter Article 73(e) to the UNSC and UNSG by the US as Administering Authority over the protest of the Chinese government in exile on Formosa’s Permanent Representative to the UN and on the UN Security Council, and the UN remains seized of the matter for consideration “sine die” under complaint of the USSR and PRC of occupation of Formosa by the US, and noting the PRC advised the UNSG in 1949 that it had established a New China and sent the Kuomintang reactionary authorities into exile on Formosa, and noting the Republic of China Foreign Minister stated in 1958 that they were in exile on Formosa and considering that all judicial interpretations of “Taiwan” “laws” state that Formosa is not the territory of the Republic of China or China, but a “liberated area”, and in light of the drafts of Civil Affairs Administration agreements by the Republic of China seeking approval from the US military government for Formosa for Chinese civil administration subject to the jurisdiction and superior command and control responsibility of the US thereover, therefor and thereon, then SSA must take note of the trusteeship status of Formosa and the concomitant resultant constitutionality nationality of the natives thereof as American Formosans (without prejudice to other government in exile or other entities claims to extending their additional nationality to such persons also). The US also preserved its rights to submit Article 73(e) information for areas other than those stipulated to the UN as non-self governing territories of the US in 1950-1952. Under the Fourteenth Amendment, the natives of all aboriginal nations which are conquered by the US, become colored with allegiance to the US for our protection as our wards and are constitutional domestic subjects or noncitizen nationals who are not aliens to the US. Accord Arikawa v Acheson which held that Japan, thus then including Formosa, was not foreign to the United States in 1950 under the federal constitutional insular and territorial law principles elucidated in Worcester v Georgia. If Congress intends that Formosa is an international trusteeship, then the native Formosans are noncitizen nationals of the US, as the admission of the Congress in 48 USC 1651 Notes that the CNMI peoples may elect to be nationals but not citizens of the US under the Covenant establishing the CNMI in political union with the US, a nationality status not available to them by statute, and thus of constitutional origins, because of their aboriginal heritage status as wards of the US military government from 1944 through 1947, prior to the establishment of the TTPI by contract with the UN and the US in 1947. No contract of trusteeship exists between the US and the UN for Formosa other than the UN Charter Articles 73 through 77 and the last article dealing with Japan, and the Treaty of Peace with Japan and the “United Nations” ie Allied Nations in the Second World War in the Pacific Theater.
Also note the presence on Formosa of the memorial cemetery Lt. Cmdr. A.S. MacKenzie, USMC, for the United States of American US Marine Corps Invasion of Formosa in 1867 and Treaty of Peace between the United States of America and The Eighteen Southern Confederated Tribes of Formosa under Chief Tokitok (Taukitok) Memorial at the garden of the British Consulate General at Kaohsiung. The United States of America was appointed as the Protecting Power of the British consular offices on Formosa when the British derecognized the Republic of China (see Department of State correspondence with UK as Protecting Power for their nationals on Formosa in matter of Lau), which along with President Grover Cleveland’s recognition of the battle on Formosa admits that the Japanese aide memoire in the Foreign Relations of the US claiming that the treaty with the Formosans and the US evinced the insular status of the native Formosans to the US and their submission to our authority under our Constitution and laws.
Because Formosa is not foreign to the US (see Arikawa v Acheson, Roger CS Lin v US), it would appear jurisdiction over the Takao USMC Formosa Memorial Cemetery established by Admiral Bell at the British Consulate General garden, lies with the VA Under Secretary and National Cemetery Administration, and not the ABMC which only has jurisdiction over sites after 1917 and only outside the United States, her territories and possessions, thus excluding Formosa temporally and territorially. The authorities under 38 USC 2408 (f) and 2404(e) and (g) and 2405(b) provide that the Secretary may cooperate with the native Formosan aboriginal tribal organizations in the trust lands, and the memorial in question, and cemetery is located in the Formosan aboriginal trust lands, for which the US obtained her martial title, through conquest of Japan in the Second World War, as explained by the Aide Memoire of Dulles to the Republic of China Ambassador Koo, the PRC via the USSR and all other Far Eastern Commission members on October 25, 1950 when the US reasserted the UN Charter Article 73 Administering Authorities over Formosa, and by USUN S/1716 Note to the Secretary General transmitted under UN Charter Article 73(e) stating the de jure territorial status quo of Formosa to be a UN Charter Article 77 non-self governing territory.
See, Statutes at Large: To the Senate of the United States:
I nominate Capt. James Forney, of the Marine Corps, to be brevet major in said corps for gallantry in action against the savages of Formosa, to date from the 13th of June, 1867.
U. S. Grant.
Washington City, April 13, 1869.
The following message was received from the President of the United States, by Mr. Moore, his secretary:
To the Senate of the United States:
In answer to the resolution of the Senate of the 5th of February last, calling for the correspondence upon the subject of the murder, by the inhabitants of the island of Formosa, of the ship's company of the American bark Rover, I transmit a report from the Secretary of State and a report from the Secretary of the Navy, with accompanying papers.
ANDREW JOHNSON.
Washington, April 13, 1868.
The message was read.
Ordered, That it be referred to the Committee on Foreign Relations and be printed,
On motion by Mr. Ramsey, at 4 o'clock and 20 minutes p. m.,
The Senate adjourned.
Also, Foreign Relations of the US:
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS186768v01&entity=FRUS.FRUS186768v01.p0560&q1=le%20gendre&q2=formosa
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS186869v01&entity=FRUS.FRUS186869v01.p0472&q1=le%20gendre&q2=formosa
United States Department of State Executive documents printed by order of the House of Representatives, during the second session of the fortieth Congress, 1867-'68: Vol. I (1867-1868)
China, pp. [414]-505
Page 492
Page 493
Page 495
Page 496
Page 497
Page 501
Page 502
United States Department of State Executive documents printed by order of the House of Representatives, during the third session of the fortieth Congress, 1868-'69: Vol. I (1868-1869)
Great Britain, pp. [21]-441
Page 424
China, pp. [493]-604
Page 504
United States Department of State Executive documents printed by order of the House of Representatives. 1873-'74: Vol. I (1873-1874)
List of papers, pp. [3]-23
Page 12
Japan, pp. 524-630
Page 553
Page 554
Page 564
United States Department of State Executive documents printed by order of the House of Representatives. 1873-'74: Vol. II (1873-1874)
List of papers, pp. [III]-XXVI
Page XII
United States Department of State Executive documents printed by order of the House of Representatives. 1874-'75 (1874-1875)
List of papers, with their subjects, pp. [XXXI]-LXI ff.
Page XXXVI
China, pp. 198-350
Page 257
Page 306
Page 307
Page 309
Page 310
Page 311
Page 322
Page 324
Page 325
Page 328
Page 329
Page 330
Page 331
Page 341
Page 342
Page 343
Page 346
Page 348
Page 349
Japan, pp. 635-699
Page 676
Page 677
Page 680
Page 681
Page 689
Page 690
Page 693
Alphabetical index, pp. [1223]-1238 ff.
Page 1231
United States Department of State Executive documents printed by order of the House of Representatives. 1875-'76: Vol. I (1875-1876)
China, pp. 200-417
Page 221
Page 406
Page 407
United States Department of State Executive documents printed by order of the House of Representatives. 1875-'76: Vol. II (1875-1876)
Japan, pp. 765-830
Page 784
United States Department of State General index to the published volumes of the diplomatic correspondence and foreign relations of the United States, 1861-1899 (1902)
[Index to foreign relations, 1861-1899], pp. 5-945 ff.
Page 121
Page 486
Page 487
Page 687
2404(e) In carrying out the Secretary’s responsibilities under this chapter, the Secretary may contract with responsible persons, firms, or corporations for the care and maintenance of such cemeteries under the Secretary’s jurisdiction as the Secretary shall choose, under such terms and conditions as the Secretary may prescribe.
2404(g) Notwithstanding any other provision of law, the Secretary may at such time as the Secretary deems desirable, relinquish to the State in which any cemetery, monument, or memorial under the Secretary’s jurisdiction is located, such portion of legislative jurisdiction over the lands involved as is necessary to establish concurrent jurisdiction between the Federal Government and the State concerned. Such partial relinquishment of jurisdiction under the authority of this subsection may be made by filing with the Governor of the State involved a notice of such relinquishment and shall take effect upon acceptance thereof by the State in such manner as its laws may prescribe.
2405(b) The Secretary may also transfer and convey all right, title, and interest of the United States in or to any inactive cemetery or burial plot, or portion thereon, to any State, county, municipality, or proper agency thereof, in which or in the vicinity of which such cemetery or burial plot is located, but in the event the grantee shall cease or fail to care for and maintain the cemetery or burial plot or the graves and monuments contained therein in a manner satisfactory to the Secretary, all such right, title, and interest transferred or conveyed by the United States, shall revert to the United States.
38 USC § 2408. Aid to States for establishment, expansion, and improvement of veterans’ cemeteries
38 USC 2408 (f)
(1) The Secretary may make grants under this subsection to any tribal organization to assist the tribal organization in establishing, expanding, or improving veterans’ cemeteries, or in operating and maintaining such cemeteries, on trust land owned by, or held in trust for, the tribal organization.
(2) Grants under this subsection shall be made in the same manner, and under the same conditions, as grants to States are made under the preceding provisions of this section.
(3) For purposes of this subsection:
(A) The term “tribal organization” has the meaning given that term in section 3765 (4) of this title.
(B) The term “trust land” has the meaning given that term in section 3765 (1) of this title.
(4) The term “tribal organization” shall have the meaning given such term in section 4(l) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b (l)) and shall include the Department of Hawaiian Homelands, in the case of native Hawaiians, and such other organizations as the Secretary may prescribe.
(l) “tribal organization” means the recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities:
(1) The term “trust land” means any land that—
(A) is held in trust by the United States for Native Americans;
(B) is subject to restrictions on alienation imposed by the United States on Indian lands (including native Hawaiian homelands);
(C) is owned by a Regional Corporation or a Village Corporation, as such terms are defined in section 3(g) and 3(j) of the Alaska Native Claims Settlement Act, respectively (43 U.S.C. 1602 (g), (j)); or
(D) is on any island in the Pacific Ocean if such land is, by cultural tradition, communally-owned land, as determined by the Secretary.
Chamorros retain their aboriginal nationality and constitutional noncitizen nationality under Section 302 of the Covenant and the law of war and Constitution and UN Charter Articles 73 through 77 inclusively, etc.
Intermarried Chamorros with Japanese blood, were not native Chamorros in the sense of the US military government directives for Formosa and the Mandated Islands, and hence under Presidential Proclamation No. 2525, intermarried Chamorros with Japanese blood quantum were not wards of the US military government, but enemy aliens, even if Japan did not consider them to be subjects of Japan per se. The courts on Saipan then should be cognizant of the distinct status and concomitant rights of the native Chamorros and those who were intermarried with Japanese or descendants thereof, as this affects their interregnum rights in land, etcetera, between 1944 and 1947.
The first amendment recognizes the right of the people to petition the government for a redress of grievances.
In Cobell v Salazar the US has admitted the betrayal of her trust duties to the native Americans, wards of the US after conquest. The same constitutional status and duties applies to the Chamorros peoples. The Covenant establishing the CNMI provides a statutory qua treaty basis for declarations by TTPI nationals and denizens of the TTPI in the pre-CNMI Marianas, at 48 USC 1631 Notes, by stating they may elect to declare themselves nationals, but not citizens of the US. Clearly Judge Ginsburgh was mistaken when her footnote said the only noncitizen nationals were American Samoans and Swains Islanders. This implies that the Chamorros were already noncitizen nationals of the US as wards of the US military government at the end of the hostilities in the Second World War, under the 14th Amendment (see Worcester v Georgia, Arikawa v Acheson, Elk v Wilkins). The US thus owes trustee duties to the Chamorros to foster self-determination, separate and apart from the 1947 Trusteeship Agreement. Indeed the US owes a constitutional duty to respect the aboriginal lands title of the Chamorro nation (see Carino v Insular Government of the Philippines, settlement and complaint in Cobell v Salazar admitting genocide (US policy to break up aboriginal land title and community)). The divided Chamorros, in Guam and the CNMI, are akin to the un-reunified Chinese and Formosans in mainland area of China and the island or insular liberated area of Formosa. Careful study and appreciation of these analogues helps contribute to the US national security and world peace. Indeed the Chamorros are pledged to the defense of Formosa under the Mutual Defense Treaty between the US and the ROC which applies to the areas in the Western Pacific under the jurisdiction of the US, such as the CNMI. Indeed the Compact establishing Palau in free association with the US declares the international defense treaties and agreements acceded to by the US during the Trusteeship will remain in force (thus the MDT, purportedly unilaterally terminated by Carter was resuscitated by the political branches through 48 USC 1931 Notes, because the former TTPI entrusted territories under principles of third party treaty beneficiary status could not be deprived of the benefits of the treaty by the US as Trustee anyway, the unilateral recission of the MDT was not binding on Saipan then, and under 32 USC 101, while a State is not defined in Title 32 Section 101-109... the framework seems to apply only to Territories named in the statute, so the CNMI has an inherent self-defense capacity and would appear authorized to establish the CNMI Self-Defense Force).
At the conclusion of major hostilities in the second World War, the United States military government had already occupied the former Japanese mandate islands, and asserted martial title sovereignty over these islands. That is
The US would have right of title to the former mandated islands by conquest and the unconditional surrender of Japan, by escheat or spuilzie of the mandate rights, and by the law of war as understood in American discovery conquest jurisprudence and the Insular Cases, see http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1945v01&entity=FRUS.FRUS1945v01.p0382&q1=mandated&q2=islands&q3=occupation . http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1943CairoTehran&entity=FRUS.FRUS1943CairoTehran.p0350&q1=mandated&q2=islands&q3=occupation
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1200&q1=mandated&q2=islands&q3=occupation. See United States Department of State / Foreign relations of the United States, 1947. General; The United Nations
Volume I (1947)
Negotiation of the trusteeship agreement for the former Japanese-mandated islands in the Pacific concluded between the United States and the Security Council of the United Nations, April 2, 1947, pp. 258-278 PDF (7.7 MB), esp. p.262.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1947v06&entity=FRUS.FRUS1947v06.p0255&q1=mandated&q2=islands&q3=occupation
Actually Japan had already extended all US treaties between the US and Japan to the mandated islands. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1921v02&entity=FRUS.FRUS1921v02.p0402&q1=mandated&q2=islands&q3=sovereignty This means that teachers from the US in the CNMI enjoy various treaty rights thereunder as well. The CNMI has not yet declared which of the Japanese treaties applicable to the mandate would continue in force as between the US and the Chamorros nation, now the CNMI.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1213&q1=mandated&q2=islands&q3=sovereignty WASHINGTON, 11 March, 1944.
My DEAR MR. SECRETARY: As evidenced in the present war, the
Japanese Mandated Islands bear a vital relation to the defense of
the United States. Their assured possession and control by the United
States are essential to our security. Together they constitute a single
military entity, no element of which can be left to even the partial
control of another nation without hazard to our control of that
entity.88
The implication in the Australia-New Zealand Agreement 89 that
those countries are capable of defending all or any of those islands
has no foundation in reality. On the contrary, the military capa-
bilities of Australia and New Zealand not only for the present but
for the future are so limited that they cannot assure the defense of
their home territories against any one of the potentially strong Asiatic
Powers.
The Japanese Mandated Islands should be placed under the sole
sovereignty of the United States. Their conquest is being effected by
the forces of the United States and there appears to be no valid reason
why their future status should be the subject of discussion with any
other nation.
Sincerely yours, For the Joint Chiefs of Staff:
WILLIAM D. LEAIIY
Admiral, U.S. Navy,
Chief of Staff to the
Commander in Chief of the Army and Navy
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1946v01&entity=FRUS.FRUS1946v01.p0594&q1=mandated&q2=islands&q3=sovereignty
United States Department of State / Foreign relations of the United States, 1946. General; the United Nations
Volume I (1946)
United States policy regarding questions relating to the establishment of an international trusteeship system under the United Nations Charter; President Truman's declaration of November 6 proposing a strategic area trusteeship with the United States as administering authority for the Pacific islands formerly under mandate to Japan, pp. 544-711 PDF (62.7 MB)
HICKERSON questioned this. Referring to the Marianas, he said Ger-
many had the last clear-cut title. She surrendered it to the Principal
Allied and Associated Powers. They gave a mandate to Japan, but
Japan did not acquire sovereignty. We have driven out the Japanese
and are in possession of the islands, but who has title? MR. HICKER-
SON said it was obviously cloudy. He would hope we could reach agree-
ment in the peace treaty with Japan, but if not, we are in de facto
control. THE COUNSELOR said he thought we should avoid asserting the
right of conquest over a mandated territory. MR. Hiss said we would
have to admit Japan had had some sort of title if we base our claim
only on conquest.
MR. Hiss said the immediate question was the reply to be made to
the British and Belgians, and to the French when they ask. He said he
assumed from the discussion that the Department was not prepared
to assert the position that the U.S. is a "state directly concerned"
in
,all the mandated territories on a legal basis. He asked whether we
could say that this has been the U.S. position but we are not now
asserting it, and give them our comments on the proposed agreements
on their merits without asserting it.
THE UNDER SECRETARY asked why we should say this has been our
position. To do so assumes it is the legal position but we are not assert-
ing it, he pointed out, and we might wish to say it was not the legal
position. MR. Hiss said it has in fact been our position for more than
20 years, and he thought we should not waive it out of hand in the
hopes that other states would renounce similar interests.
MR. HENDERSON said we could assert a right under existing treaties
.as a "state directly concerned" in Tanganyika but he did not think
the
Soviet Union or China could assert a legal claim either there or in the
Japanese mandated islands. Their claims would have to be based
on agreements yet to be made.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1946v01&entity=FRUS.FRUS1946v01.p0705&q1=mandated&q2=islands&q3=sovereignty
Article 3. It was reported by the newspapers that Mr. Dulles had
supported a proposal to take out of the trusteeship agreement for
Western Samoa now before the Assembly the words in Article 3 "as an
integral part of" New Zealand. Mr. Green indicated that Gerig
had told him that Mr. Dulles had not supported this but had abstained
from voting. In any case, the United States has taken the position in
the case of other trusteeship agreements that the words should be "as
if it were an integral part of". Therefore, we shall doubtless be con-
fronted with this inconsistency. Mr. Borton indicated that the Navy
had been requested to consider a possible revision to the "as if"
lan-
guage but up to date had insisted on the present language. He also
indicated that the Navy would resist the deletion of the words "as an
integral part". It was made clear, however, that it was not intended
by these words to imply that sovereignty over the territory is vested in
the United States.
Article 4. Mr. Green explained that it was the contention of the
State Department that in the case of a strategic trust the objectives of
the international trusteeship system were limited to "the people of
the
trust territory" in accordance with Article 83 (2) as contrasted with
the territory itself in the case of nonstrategic trusts. The Department
felt that this had been done intentionally with the purpose of limiting
-the obligations to paragraphs (76) a. b. and c. of the Charter and
excluding d. He did not know whether there was any history at San
Francisco to support this position. It was agreed that this matter
-would be looked into in the Department as it might be a difficult con-
tention to make without some such support. This contention is im-
portant in connection with Article 8 of the agreement.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS195254v03&entity=FRUS.FRUS195254v03.p1115&q1=mandated&q2=islands&q3=sovereignty
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1945v06&entity=FRUS.FRUS1945v06.p0621&q1=mandated&q2=islands&q3=military%20government
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1229&q1=mandated&q2=islands&q3=military%20government
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1944v05.p1228&id=FRUS.FRUS1944v05&isize=M&q1=mandated&q2=islands&q3=military%20government
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equal to the rights of any other of the Principal
Allied and Associated Powers in whose favor Germany renounced her
rights in those territories. That position has been made clear in
official correspondence with other governments concerned, in our
Peace Treaty with Germany of 1921,9 and in our Treaty of 1922 with
Japan in which we assented to the mandate given to Japan.'0
It is unnecessary to consider at this stage whether violation by
Japan of the terms of the mandate ipso facto terminated the mandate
because existence of the mandate does not present any legal obstacle
to an American military administration of the islands during
occupation.
It is unnecessary to consider at this stage whether violation by
Japan of the terms of the mandate ipso facto terminated the mandate
because existence of the mandate does not present any legal obstacle
to an American military administration of the islands during
occupation.
The United States, as belligerent occupant of the territory, super-
sedes the Japanese Government as the actual and lawful government
of the territory. There is no question of the lawfulness under interna-
tional law of the American occupation.
Belligerent occupation is a temporary rather than a permanent
status and does not transfer sovereignty to the occupant although
during such occupation the belligerent occupant is entitled to exercise
the rights of sovereignty subject to the rule of international law
dealing with military occupation.
The fact of occupation does not operate to terminate the mandate
although it may suspend its operation. The belligerent occupant is
not subject to the terms of the mandate or responsible to the League of
Nations. The military administration of the belligerent occupant is
not bound by the mandate provision concerning the establishment of
bases and fortifications and is not required to make reports to the
Council of the League of Nations. Any rights of the League of
Nations in the mandated territory are in abeyance during belligerent
occupation and need not be of concern to the military administration.
The belligerent occupation does not confer United States nationality [Plaintiff/Petitioners advocate that this means US citizenship, not noncitizen nationality, which was not well understood in constitutional terms, because US State Department documents referring to the native American conquered peoples as wards of the US or domestic subjects (ie noncitizen nationals under the law of war and Constitution proprio motu), was not well known or settled in constitutional jurisprudence, except inferentially from Dred Scott, Elk v Wilkins, Worcester v Georgia, US ex rel Standing Bear, etc. ]
upon the inhabitants of the Japanese Mandated Islands. The man-
date, however, did not confer Japanese nationality upon them. Native
inhabitants, therefore, should not be treated as enemy aliens.
Prepared and reviewed by the Inter-Divisional Area Committee on
the Far East.
LA: ALMoffat (drafting JA: ERDickover
officer) BRJohansen
TS: GHBlakeslee FSWilliams
HBorton CA: JCVincent
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1255&q1=mandated&q2=islands&q3=military%20government
It is urged, therefore, that no action be taken on policies adopted
during the period of military government which might impair com-
plete latitude of decision by the United States Government at the
conclusion of the war.
During the period of military government, the military authorities
(a) should be guided by accepted international law, (b) should under-
take no mass segregation, internment or removal except such as may
actually be required by military necessity, and (c) should not attempt
to anticipate a decision which must be predicated on agreements
which it is not likely will be concluded with other countries until after
the war.
Formosa has been under Japanese sovereignty for half a century.
Although technically all Formosans, therefore, are enemy nationals,
the State Department looks upon the Chinese Formosans and the
Formosan aborigines as quite apart from the persons of Japanese
blood who live on the island. It anticipates that the Military Gov-
ernor will act generally on the assumption that the Chinese For-
mosans, who speak Chinese and are of Chinese or of mixed Chinese
and aborigine origin, are to be restored to Chinese citizenship after
the war, and that the tribal aborigines, who are akin to the non-
Christian peoples of Northern Luzon, are neither Japanese nor Chi-
nese, but more properly to be considered as wards of whatever
government has control of the island.
The Marshall, Caroline and Marianas Islands, on the other hand,
have been held by Japan only under mandate and the natives of these
islands have never become Japanese nationals. They should be treated
as wards of the military government. A number of Koreans may be
found in the islands. If so, special consideration should be given them.
About half of the Japanese civilian population of Formosa com-
prise officials, corporation executives, technicians and some business
entrepreneurs; the other half are largely urban laborers and small
businessmen.
In the Mandated Islands, a far greater proportion of the Japanese
civilian population will be found to be farmers and laborers, primarily
workers on the sugar plantations in the Marianas, brought for such
purpose from the Liuchiu Islands.
It is quite possible that if there is intensive fighting in Formosa
the Japanese civilians will be found segregated at one or more points,
in which event, clearly, the United States military authorities should
continue such segregation at least until stable conditions are restored.
In the Mandated Islands, such segregation of the Japanese civilians
does not seem probable.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1255&isize=text&q1=mandated&q2=islands&q3=military%20government
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1278&q1=mandated&q2=islands&q3=military%20government
United States Department of State / Foreign relations of the United States diplomatic papers, 1944. The Near East, South Asia, and Africa, the Far East
Volume V (1944)
Japan, pp. 919-1289 PDF (138.1 MB)
--------------------------------------------------------------------------------
Page 1266
FOREIGN RELATIONS, 1944, VOLUME V
890.0146/6-2344
Memorandumn by the Director of the Office of Far Eastern Affairs
(Grew) to the Secretary of State
[WASHINGTON,] June 23, 1944.
MR. SECRETARY: Major General George V. Strong, Senior Army
Member of the Joint Post War Committee, came to see me this
morning at the request of Lt. General Stanley D. Embick, of the Joint
Strategic Survey Committee, and showed me the record of the dis-
cussions of the Joint Chiefs of Staff in January and March last on the
subject of the ultimate disposition of the Mandated Islands in the
Pacific.
In January the Joint Chiefs of Staff recommended that no action
should be taken which directly or indirectly would prejudice the
ultimate disposition of these islands.
In March the Joint Chiefs of Staff recommended that in the interest
of future security the Japanese Mandated Islands north of the equator
should pass to the title and sole control of the United States.
Some concern had been caused the Joint Chiefs of Staff by the
agreement between Australia and New Zealand envisaging eventual
control by these countries of certain of the Mandated Islands.'6 It
was pointed out that Australia and New Zealand with their limited
resources would not be able to defend these islands against any strong
Pacific power; that if these islands should be attacked by some Pacific
power, as in the case of the present -war, the United States would again
have to come to the rescue.
The United States would, however, not be directly concerned with
the eventual disposition of the Mandated Islands south of the equator
provided that the United States should enjoy operational rights
therein.
J EOSEPH] C. G[REW]
Lot 122, Box 53
Memnoranduam Prepared by the Inter-Divisional Area Committee on
the Far East
PWC-184a [WVASEIINGTON,] June 28, 1944.
PAPERS CONCERNING MILITARY GOVERNMENT IN FORMOSA
The Inter-Divisional Area Committee on the Far East has prepared
fourteen papers on military government in Formosa to answer twenty-
eight questions submitted to the Department by the Civil Affairs
Ed Signed at Canberra, January 21; see telegram 12, January 22, from Canberra,
vol. III, p. 169.
1266
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1280&q1=mandated&q2=islands&q3=military%20government
re US application of the Refugee Convention as applying to Saipan: http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1948v08&entity=FRUS.FRUS1948v08.p0934&q1=saipan&q2=refugees
American nationals in the CNMI cannot be reduced to slaves of the college administration, but denial of our first amendment civil rights entails the very deprivation of civil rights on the basis of race and national origin which were the problems the amendment sought to remedy and the rights the amendment demands to secure proprio motu.
The Thirteenth Amendment provides its own jurisdiction, cause of action and remedial authority, including authority to order entry into the mainland area immigration zone of the United States, as the amendment specifically applies to foreign places without the United States (including but not limited to places such as Formosa, Guam, Puerto Rico, the US Virgin Islands, American Samoa, Swains Island, Navassa, Palmyra Territory (though theoretically intended for reincorporation with Hawaii), Guantanamo Naval Station, American occupied Iraq and Afghanistan, or what the Department of State Foreign Relations of the US series refers to as the former dependent areas of the US such as Liberia), in the contemplation of the drafters as explicated by the racist line of explication from Dred Scott, Elk v Wilkins, Barber v Gonzalez, Matter of Cantu, Sabangan v Powell, Chinese Exclusion Cases, Rabang v Boyd, Rabang v INS, Val Monte v INS, Worcester v Georgia, Ex Parte Shahid.
Ex parte SHAHID
205 F. 812, *; 1913 U.S. Dist. LEXIS 1605, **
1856 U.S. LEXIS 472, ***547; 19 HOW 393
Who is a free white person? And who is a person of
African nativity or of African descent? It has been
decided that the Chinese, Japanese, Malays, [**3] and
American Indians do not belong to the white race and are
therefore excluded. Furthermore, by express additional
statutory provisions the Chinese are expressly excluded.
This, however, leaves open the question: Suppose one of
these people had been born in Africa, would the children
of Chinese parents, for instance, or Japanese parents,
because born in Africa, be of African nativity?
Next, what is the meaning of African descent? The
Chinaman is not entitled to be admitted to citizenship, but
would a half-breed, the child of a negro and a Chinese, be
entitled to admission because by his mother's or his
father's side he was of African descent? Then what is the
limitation of Afican descent? For how many generations
would that continue? If the son of an African man by a
Chinese woman is entitled to admission by reason of
African descent, would the great-grandson of an African,
although one whose immediate ancestors were Chinese,
and who had lived in China, be entitled to admission by
reason of the infinitesimal portion of negro blood in him?
Then, what is white? What degree of colorization, if it be
referred to color, constitutes a white person as against a
colored person, [**4] and is the court to take the
responsibility by ocular inspection of determining the
shades of different colorization where the dividing line
comes between white and colored.
Art Waldron and the Dulles Conspiracy with Wellington Koo: Rebus Sic Stantibus, and Spuilzie Re-Retrocession
the US argued that Cairo and Potsdam had been superseded by intervening force majeure events, success of the PRC belligerency in establishing a New China, the PRC, which did not exactly claim to succeed to the duties of the ROC... and thus the extinction in fact of the ROC in China, and its leave from China into exile on Formosa...
both the ROC in 1958 and PRC in 1949 have admitted that the ROC is in exile on Formosa... indeed the PRC admits in UN documents that it negotiates with the US as the party of interest for determining how to permit China's Taipei exile regime to participate in various regional or topical fora like APEC or WHA
Dulles used Koo's genius against him... see Art Waldron p18 fn 43 T. Young Huang, Doctrine of Clausus Rebus Sic Stantibus in International Law http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p1338&id=FRUS.FRUS1950v06&isize=M&q1=formosa&q2=Article%2073
Dulles gave Koo an Aide Memoire October 25, 1950 stating the US was assuming Administering Authority duties over Formosa under UN Charter Article 73... http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1950v06&entity=FRUS.FRUS1950v06.p1340&q1=formosa&q2=Article%2073 these duties may have been assumed jointly with the ROC (if the ROC in exile still had an international legal personality of consequence other than its claims to be the sole legitimate government of China) without prejudice to ultimate status, as the US and UK jointly administered Canton and Enderbury Islands (48 USC 644a)... but the Aide Memoire clearly says that the status quo of Formosa is that it is a non-self governing territory and the US is (at least, one of) the Administering Authority(ies) under UN Charter Article 73... constitutionally this cannot but mean Formosa is not foreign to the US (Arikawa v Acheson, Worcester v Georgia) and thus her peoples under the Constitution are US nationals ad interim pending their de jure return to China or independence or whatever Congress authorizes lawfully...
Tkacik and Waldron are welcome to refute that the status quo is that Formosa is a non-self governing territory under US Administering Authority status... or the ROC acquiescence thereto: http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v07.p1208&id=FRUS.FRUS1950v07&isize=M&q1=formosa&q2=malik
and that the SFPT does not change the status of Formosa as conquered by the US and under our martial title http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1951v06p1&entity=FRUS.FRUS1951v06p1.p1123&q1=formosa&q2=aide-memoire
also note that the TTPI was held by courts of the TTPI to be merely the name by which the US exercised her duties of administration... so too the ROC in exile on Formosa is merely the name by which the US administers Formosa... but has Formosa's relations with the US become sufficiently self-governing to permit the US to say as with Puerto Rico that we no longer feel obliged to provide reportage under Article 73 for Formosa to the UN ??
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1947v01&entity=FRUS.FRUS1947v01.p0313&q1=hawaii&q2=Article%2073
United States Department of State / Foreign relations of the United States, 1947. General; The United Nations
Volume I (1947)
United States policy regarding non-self-governing territories outside the United Nations trusteeship system; the question of transmission of information under article 73 (e) of the charter, pp. 279-321 PDF (16.9 MB)
Page 283
The United States last August transmitted to the Secretary-General,
pursuant to Article 73 (e) information on Alaska, American Samoa,
Guam, Hawaii, the Panama Canalf Puerto Rico, and the Virgin
Islands. This was done without prejudice to the territories on which
information would in future be sent.
The
United States has placed on record in the Security Council the state-
ment that despite the fact that no people are more consecrated to the
principle of independence than the people of the United States, such
status for the Trust Territory could not be achieved within any fore-
seeable future. The territories of the Virgin Islands, Guam and Ameri-
can Samoa enjoy varying intermediate stages in the development of
local self-government and no one can foretell what their ultimate
political status will be. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS195254v03.p1248&id=FRUS.FRUS195254v03&isize=M&q1=hawaii&q2=Article%2073
See AGO Opinion:
Section 1_ of the fourteenth amendment to the Constitution declares
that, "all persons born or naturalized in the United States. and subject
to the jurisdiction thereof, are citizens of the United States and of the
State wherein they reside." But the word "jurisdiction" must
be under-
stood to mean absolute or complete jurisdiction, such as the United
States had over its citizens before the adoption of this amendment.
Aliens, among whom are persons born here ,and naturalized a-broad,
dwelling or being in this country, are subject to the jurisdiction of the
United States only to a limited extent. Political and military rights
and duties do not pertain to them.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS187374v02&entity=FRUS.FRUS187374v02.p0589&q1=subject%20to%20the%20jurisdiction&q2=citizen
The reason the "subject to the jurisdiction" language in the the Fourteenth Amendment has not been understood is because of the lack of coordination among political scientists, constitutional historians, immigration and nationality lawyers, judge advocate and law of war specialists, and native American/Indian law experts. See opinion of Attorney General Williams No.502, August 20, 1873. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS187374v02.p0586&id=FRUS.FRUS187374v02&isize=M&q1=subject%20to%20the%20jurisdiction&q2=citizen Aliens, among whom are persons born here ,and naturalized a-broad,
dwelling or being in this country, are subject to the jurisdiction of the
United States only to a limited extent.
Senator Trumbull has extensive discussions in the Statutes at Large www.loc.gov discussing the meaning of "subject to the jurisdiction" in the context of the inalienable rights of expatriation. The Secretary of State also discusses these rights with a note to the Chinese replying about their claim for civil strife recompense to their nationals in the US for racist attacks. The right of expatriation is found in constitutional terms, as to aliens, in Smith v Turner, where the Court terms the right, the right of international visitation, which is a RIGHT, to enter the US, by an alien, who is neither an utterly indigent pauper nor bears any criminal intentions (but certainly may intend to stay after initially only visiting). For the US to declare the right of expatriation it was necessary to show that we did not accept the British view, thus it became constitutionally necessary to include this language in the amendment, because of the plethora of State Department problems defending and protecting our Jewish Americans abroad after naturalization here. Someone who is born or naturalized in the United States ("in the US" means, within the United States or subject to the jurisdiction thereof, uniformly with the expanded jurisdiction of the 13th amendment, see Sabangan v Powell), must remain subject to the jurisdiction thereof, in order to remain a citizen, but if they do not remain subject to the jurisdiction, by voluntary expatriation, they are of right expatriated and no longer citizens of the US, though they certainly remain of right to reside in the US as constitutional noncitizen nationals (not statutory ones, though besides the INA noncitizen nationals, 48 USC 1651 Notes also makes former TTPIers eligible to elect noncitizen national status in lieu of citizenship at formation of the CNMI) lawful permanent residents if they would otherwise be stateless (Garry Davis v US, Roger CS Lin v US, Elk v Wilkins).
The conjunctive in the 14th amendment is grammatically superfluous, if the meaning of "subject to the jurisdiction" is only to state that the US must abide by the morally self-executing law of nations (our national honor causes us to obey the law of nations, and thus not to extend or impose nationality on the children of diplomats born here, though they too are domestic subjects, denizens, resortissants, or lawful permanent residents, in terms of their rights, privileges and immunities, beyond their diplomatic privileges and immunities), because the same effect can be achieved without the conjunctive "and"... persons born or naturalized in the US, subject to the jurisdiction thereof, shall be citizens... The use of and indicates a temporal construction and future conditionality of the citizenship, that may be voluntarily revoked at the election of the citizen pursuant to their inalienable right of expatriation secured to them by the "subject to the jurisdiction" language. So too native Americans who left their tribe and joined the polity of the US were considered eligible to invoke habeas as people of the US (US ex rel Standing Bear v Crooker), because they had voluntarily expatriated from their primary tribal allegiance. [accord Rubi v Mindoro, Supreme Court of the Philippines on "Non-Christian" peoples, and see FRUS on the term "Non-Christian" peoples of Luzon as declaring the native Formosan aboriginals to be wards of the US military government upon conquest of Japan by the US in the Second World War in the Pacific theater]. Also "subject to the jurisdiction" cannot only refer to native Americans, as the phrase "Indians not taxed" which follows could have been used instead. viz http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=031/llac031.db&recNum=220
http://memory.loc.gov/cgi-bin/ampage?collId=llac&fileName=031/llac031.db&recNum=221
p 1187
United States Department of State / Executive documents printed by order of the House of Representatives. 1873-'74
Vol. II (1873-1874)
Papers relating to expatriation, naturalization, and change of allegiance,
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS187374v02&entity=FRUS.FRUS187374v02.p0557&q1=subject&q2=jurisdiction&q3=citizen
Chief Justice Marshall (2 Cranch, p. 119) says that when a citizen by
his own act has made himself the subject of a foreign power, his situa-
tion is completely changed, and that the act certainly places him out of
the protection of the United States while within the territory of the
sovereign to whom he has sworn allegiance.
This opinion is in conformity with public policy and right, and is
sustained by the general authority of the writers on public law.
The fourteenth amendment to the Constitution makes subjection to
the jurisdiction of the United States an element of citizenship of the
United States.
If, then, to this act of voluntary submission of himself to th6 sov-
ereignty of another power be added a formal renunciation of American
citizenship, I cannot see that it can be regarded otherwise than as an
act of expatriation.
That under the US Constitution, Article 1, Section 8, Clause 10 To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations…
Native Americans, as conquered peoples, whether such conquest be affected by captures on land and water… are noncitizen nationals of the United States. So too, the native Chamorros must be noncitizen nationals under Article 1, Section 8 Clause 10 and 11 and the Third, Thirteenth and Fourteenth Amendments.
The law of nations perspective on relations between the conquered native Americans and the warmaking American nation (the US) subjugating them, and special application of these principles to the CNMI as well as to Formosa.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1902.p0871&id=FRUS.FRUS1902&isize=M
Francisco Cuero, son of a chief of an Indian tribe residing in California … although, strictly speaking, he is not an American citizen, he is a domestic subject of the United States.
United States Department of State Papers relating to the foreign relations of the United States, with the annual message of the president transmitted to Congress December 2, 1902 (1902)
Mexico, pp. 738-833
Page 791
INDIANS, PASSPORTS FOR.
Various acts of Congress have from time to time
been passed making certain tribes of Indians and
certain Indians who fulfill statutory conditions citi-
zens of the United States, and these may be granted
passports. All other Indians are not citizens, but
as wards of the Government they may receive its
protection. While they are abroad, they may, there-
fore, be granted documents specifying that they are
not citizens, but requesting protection for them.
MS. instruc- I have to acknowledge the receipt of your No. 506, of
the nth ultimo, reporting the application of Humper
Nespar, or Wadded Moccasin, a Sioux Indian, for a
passport.
In reply, I have to say that Indians are not citizens of
the United States by reason of birth within its limits.
Neither are our general naturalization laws applicable to
them, but various Indian tribes have been naturalized by
special acts of Congress.
Unless Humper Nespar was naturalized in one of the
above modes, he is not entitled to a passport as a citizen
of the United States.
A copy of your dispatch will be sent to the Interior De-
partment and an effort made to determine definitely what
his status is, as some Sioux tribes have been naturalized
by special acts. Even if he has not acquired citizenship,
he is a ward of the Government and entitled to the consid-
eration and assistance of our diplomatic and consular offi-
cers. Your action in the case is, therefore, approved.
In this connection, reference to the case of **Hampa,"
reported in dispatch No. 453, of May 7, 1896, from the
consul at Odessa, is pertinent. Hampa, an American In-
dian, a member of a cow-boy company which performed
at Odessa, was discharged on account of drunkenness.
The consul aided him, and, upon the police requiring of
Hampa a passport or document from the consulate certi-
fying to his identity, the consul issued the following:
**To whom it may concern:
The bearer of this document is a North American Indian whose name is Hampa. This Indian is a ward of
the United States, and is entitled to the protection of its
consular and other officials. He is not, however, entitled
to a passport, as he is not a citizen of the United States.
This consulate has the honor to request the Russian
authorities to grant Hampa all necessary protection dur-
ing his stay in Russia, and grant him permission to depart
when he requires it.
1. May tribal native Americans and other domestic dependent American nations secede? May they refuse citizenship and elect only noncitizen nationality?
2. Can Congress involuntarily expatriate and denaturalize Filipinos who had already moved to the US and became citizens of the US under the 14th amendment by virtue of being noncitizen nationals who have entered and reside in a state? Neither Rabang v Boyd nor Rabang v INS or Val Monte v INS argued that noncitizen national Filipinos who had moved to the US had become 14th amendment citizens as supposed by the Harlan dissent in Elk. V Wilkins.
3. What is the law which serves as the ultimate source for the relations between the US and the native Americans and other domestic dependent American nations after conquest?
4. What is the constitutional status of tribal native Americans and other domestic dependent American nations after conquest?
5. The Iroquois Confederation constitution recognized the native American immigration and refugee and asylum laws permitting any foreigner who joined those nations peaceable to remain and naturalize as members of the tribe during good behavior.
6. The US treats the native peoples as beneficiaries of a trust relation, imposed by the law of war, the law of nations, or natural law, known as the law of Noah, or Noahide or Noahide law. In this conception the dependent peoples are subjugated pending self-determination, as wards of the Trustee, under this natural law or Noahide trusteeship, imposed by necessity, for the paramount interest and benefit of the beneficiaries of the trusteeship relations. The law of trust also recognizes temporary and conditional or intermittent trusts, where the beneficiary may while under condition of minority or infirmity benefit from the trust and later graduate to full control in independent self-determination thereover.
In planning for the occupation and military government in the Pacific and Japan, the US noted that the native Formosans would be deemed to have been like a woman married to an alien during their relations to Japan, whose inherent nationality would be restored when the marriage ended or she resuscitated and returned to primary allegiance to and domicile in her home country, and so too the intermarried or those native Formosan aborigines who had adopted Formosan-Chinese (ie Taiwanese) ways, but the native Formosan aborigines would not revert or be restored to citizenship of the reoccupier, but would instead be wards in the protection of that government. http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1255&q1=formosa&q2=wards Formosa has been under Japanese sovereignty for half a century. Although technically all Formosans, therefore, are enemy nationals, the State Department looks upon the Chinese Formosans and the Formosan aborigines as quite apart from the persons of Japanese blood who live on the island. It anticipates that the Military Governor will act generally on the assumption that the Chinese Formosans, who speak Chinese and are of Chinese or of mixed Chinese and aborigine origin, are to be restored to Chinese citizenship after the war, and that the tribal aborigines, who are akin to the non-Christian peoples of Northern Luzon, are neither Japanese nor Chinese, but more properly to be considered as wards of whatever government has control of the island. (for meaning of non-Christian peoples, see the Supreme Court of the Philippines: http://www.lawphil.net/judjuris/juri1919/mar1919/gr_l-14078_1919.html RUBI, ET AL. vs. PROVINCIAL BOARD OF MINDORO). 4. Treatment of the Inhabitants of Formosa and the Japanese Mandated Islands
a. Japanese Residents
The military government, in its treatment of Japanese civilians in
Formosa and the Japanese Mandated Islands (1) should be guided
by international law, (2) should undertake no mass segregation, in-
ternment or removal not required by military necessity, and (3)
should not attempt to anticipate a decision as to the disposition of
Japanese civilians after the war (PWC-198 62).
b. Non-Japanese Inhabitants of Forwosa
Although Chinese-Formosans and the aborigines, in a legal sense,
are enemy nationals, in a political sense, the Chinese-Formosans
should be treated as "liberated peoples", and the tribal aborigines
as wards of the military government (PWC-194 63). http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1280&isize=M&q1=formosa&q2=wards
7.
See Gideon Rothstein, Georgetown Immigration Law Journal, Involuntary Particularism: The Noahide Laws, Citizenship, and Alienage
Self-Determination Ballentine v USVI, Rabang v Boyd, Shameful, disgraceful, un-American Chinese Exclusion cases
Trust and Aboriginal or Native Nationality Boyd v Nebr ex rel Thayer, Carino v Insular Government of the Philippines, Wabol v Villacruisis
Weedin v. Chin Bow, Wong Kim Ark, Gradations of Nationality ("uniform" rule) Congress , Crandall Gonzalez v Williams Rabang v Boyd Val Monte United States v. Wong Kim Ark, 169 U.S. 649, 702– 703 (1898); cf. Montana v. Kennedy, 366 U.S. 308, 312 (1961), Rogers v. Bellei, 401 U.S. 815 (1971). Arrival at this conclusion involved the denial of a right or privilege under the constitution and laws of the United States, upon which the determination of whether Boyd was a citizen of the United States or not depended, and jurisdiction to review a decision against such right or privilege necessarily exists in this tribunal. Missouri v. Andriano, 138 U.S. 496 , 11 Sup. Ct. Rep. 385. SECESSIONARY SELF-DETERMINATION: A JEFFERSONIAN PERSPECTIVE James E. Falkowski*, http://scholar.google.com.tw/scholar?q=info:WGO7luuqSe0J:scholar.google.com/&output=viewport&pg=1&hl=zh-TW&as_sdt=2000
1. POTUS said publicly we were neutralizing Formosa, a la Amelia Island (ie implying to the US public and world that it was without prejudice to the status quo OR ultimate disposition
2. Dulles and the USUN S/1716 the Austin letter, apprised the allies on the FEC and the USSR and ROC in exile that the US was retaking (re-retroceding as it were) Formosa as a non-self governing territory as described by the type of territory listed in Article 77(1)(b) or (c), for which the US is the Administering Authority under Article 73.
3. Dulles said the status quo of Formosa must be determined without regard to the SFPT which does not affect that status quo, hence the status quo ante, or the US holding sovereignty by virtue of our martial title by conquest under the law of war and our Constitution.
4. These actions are all without prejudice to the future status of Formosa, and without immediate or direct prejudice on the continuing ability of the ROC in exile to administer Formosa as the alter ego for the United States military government Formosa.
5. The agreement of the Allies to these arrangements is acknowedged, and assent of Japan to the transfer by conquest recognized, in the SFPT. The SFPT does not dispose of or cede Formosa, but does not impair the prior rights and interests of the US in Formosa by conquest either.
6. The ROC no longer existed as a state when the SFPT was concluded, and could participate if at all only as a government in exile claiming to represent the mainland area of China and perhaps asserting historical, cultural and political claims to Formosa.
7. The US Constitution intends to make warmongering difficult and constitutionally costly, thereby to be a peaceable constitution.
8. The phrase “subject to the jurisdiction of” should have a uniform meaning in both 13th and 14th amendments.
9. The analysis in Dorr, Wong Kim Ark, Elk v Wilkins, Dred Scott v Sandford, Barber v Gonzalez, Rabang v Boyd, Val Monte v INS, Rabang v INS, In Matter of Cantu, Sabangan v Powell, and the birthright nationality cases (Padilla, etc.) and Judge Posner that the 14th amendment does not repose nationality to incidental birth in the US, violate the plain meaning of the 13th and 14th amendments and their inclusive color blind civil rights empowerment purposes.
10. The use of the conjunctive in the 14th amendment can mean, “born or naturalized in the United States AND [born or naturalized] (in places or political bonds being) subject to the jurisdiction thereof” shall be citizens of the United States and of the state in which they reside. This would conform to the Article 1 uniform naturalization authority grant to Congress, by establishing a truly uniform and universally applicable law for US citizenship.
11. The right of expatriation is currently impeded by statute to and regulation to forbid the US from recognizing voluntary expatriation where a US citizen intends to stay in the US, so for example this impairs the rights of tribes and of non-tribal Americans to join the tribes and be noncitizen nationals of the US under the 14th amendment. Lots of wealthy Americans might invest in tribes if they could retain noncitizen nationality in the US while also being Indians not taxed through expatriation from US citizenship and adoptive naturalization by a tribe. Is current State Department practice for expatriation unconstitutional?
12. Surely it is an odd constitutional construction to hold the phrase “subject to the jurisdiction thereof” in the 13th amendment to mean there are enslaved non-self governing territories of the US American Empire, directly contradicting the fundamental purpose of liberty that the amendment seeks to secure. The disjunctive OR in the amendment does not mean that there are geographic places which are subject to the jurisdiction of the United States but not in the United States. Rather the phrase refers to being in places or political bonds of allegiance which legally make one outside the political conception of the United States as a legal person or nationality or nation.
13. Amendment XIII
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
14. Amendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed.
15. The 13th amendment “within the United States, or any place subject to their jurisdiction”, speaks to geographic limits, within the United States geographically, or any place subject to their jurisdiction (ie Embassies abroad if the usage of “subject to the jurisdiction” means in the 14th amendment the children of diplomats. Yet this would exclude unincorporated Indian nations from the emancipation granted by the 13th amendment, so slavery would not be unconstitutional under the 13th amendment in American Samoa or the CNMI for example.
16. If Elk is correct, then the Section 2 of the 14th amendment would seem to create second class citizenship for Indians not taxed, or it could merely preserve the additional rights and privileges and immunities of native Americans as citizens of the US AND citizens and members of their original nations, but for their voluntary assent to be taxed.
17. Does the 14th amendment not amend the uniform naturalization authority of the Congress?
18. What nationality exists antecedent to the 14th amendment, and how does it operate?
19. Does the Constitution prior to the 14th amendment recognize natural born citizens as a jus soli and or jus sanguinis citizenship status? Or is pre-14th amendment American citizenship solely a creation of the will of the Congress under its naturalization authority? But naturalization means conferral of nationality after birth, not at birth, unless natural born citizen means to imply that those who are born citizens are also within the constitutional rubric of the naturalization authority of the Congress.
20. Article One Section Eight To establish a uniform rule of naturalization, …To constitute tribunals inferior to the Supreme Court;
21. Section Nine (following and included within the so-called slavery section…) The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. “or any place” in the 13th means to limit the scope of “subject to their jurisdiction” to a territorial geographic sense…
22. 48 USC644a derives from Article One Section 8 To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations; and from Article One Section Eight To establish a uniform rule of naturalization, …To constitute tribunals inferior to the Supreme Court;…
23. Article One Section 8 To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;… means that the Indian tribes who are generally within the geographic extent of the United States, are not within the polity of the several states…
24. Can someone be naturalized in the United States but not subject to the jurisdiction thereof? All persons born or naturalized in the United States, and subject to the jurisdiction thereof,… shouldn’t amendment read “All persons born in and subject to the jurisdiction the United States or naturalized thereof, shall be citizens…” ?
25. Is someone born or naturalized in the United States, but not subject to the jurisdiction thereof, a noncitizen national under the 14th amendment?
26. So “any place” in the 13th amendment means to limit “subj to the jurisd” to a territorial sense… but in the 14th amendment, subj to the jurisd means in a political sense… without regard to territorial location
27. The 13th uses within the US, to mean geographically… the US there is thus territorial and geographic, the several states and incorporated Territory or inchoate states, or places subject to the jurisd (incl Indian lands and unincorporated territories)
28. The 14th uses in the US, to mean politically, born or naturalized (by treaty, law of war, law of nations, the Constitution (other persons, Indian tribes), or statute) in the United States (the several states (for birth)/ the Union in the political sense as the US nation (for naturalized)), and subj to the jurisd thereof (within the national polity, ie excluding Indians and unincorporated territories, who are born or naturalized in the US as noncitizen nationals), shall be citizens…
29. The 13th within the US means territorially, the several states
30. The 14th in the US means politically and or territorially… birth or naturalized… birth in the territory… or naturalized within or without the territory but to and in the polity…
31. Sabangan says you cannot naturalize without the United States, naturalizing the CNMI Chamorros conferred the status of being in the United States on the CNMI… you can’t be in the US under the 14th amendment and not within the US under the 13th amendment, unless the US for the 13th is geographic, as it seems, and political in the 14th
32. 13th subj to jurisd does not mean bonds of allegiance in co-equal political status, but subjugation… such as by conquest…
33. Does the 14th amendment amend Article One Section 8 authority of Congress to establish a uniform rule of naturalization ?
34. Do American Samoans who enter the mainland area of the US and reside in a state, thereby become citizens under the 14th amendment, if not why not? Why must they naturalize as citizens? The 14th amendment phrase born or naturalized in the US, must include naturalization by treaty, as all the cases indicate, and thus includes extension of any form of American nationality, including noncitizen nationality, as within “naturalized” for Amendment XIV Section 1. So a naturalized American Samoan noncitizen, who moves to a state, becomes subject to the jurisdiction thereof, and is a citizen thereby of the US and of the state, under the 14th amendment, so why should American Samoans have to apply for naturalization as citizens when the Constitution affords them this right under like terms to the statutory grant, and at no cost?
35. Does naturalized in the 14th amendment only mean the extension of citizenship, but not extension of American nationality, such as noncitizen nationality, by treaty or the law of nations or war? How can the 14th amendment declare who shall be a citizen of a state, or does it not mean to state who shall enjoy the rights of a citizen of the US in a state?
36. Harlan in Elk dissents: At the adoption of the constitution there were, in many of the states, Indians, not members of any tribe, who constituted a part of the people for whose benefit the state governments were established. This is apparent from that clause of article 1, § 3, which requires, in the apportionment of representatives and direct taxes among the several states 'according to their respective numbers,' the exclusion of 'Indians not taxed.' This implies that there were, at that time, in the United States, Indians who were taxed; that is, were subject to taxation by the laws of the state of which they were residents. Indians not taxed were those who held tribal relations, and therefore were not subject to the authority of any state, and were subject only to the authority of the United States, under the power conferred upon congress in reference to Indian tribes in this country. The same provision is retained in the fourteenth amendment; for, now, as at the adoption of the constitution, Indians in the several states, who are taxed by their laws, are counted in establishing the basis of representation in congress. By the act of April 9, 1866, entitled 'An act to protect all persons in the United States in their civil rights, and furnish means for their vindication,' (14 St. 27,) it is provided that 'all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.' This, so far as we are aware, is the first general enactment making persons of the Indian race citizens of the United States. Numerous statutes and treaties previously provided for all the individual members of particular Indian tribes becoming, in certain contingencies, citizens of the United States. But the act of 1866 reached Indians not in tribal relations. Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race, (excluding only 'Indians not taxed,') who were born within the territorial limits of the United States, and were not subject to any foreign power. Surely every one must admit that an Indian residing in one of the states, and subject to taxation there, became, by force alone of the act of 1866, a citizen of the United States, although *113 he may have been, when born, a member of a tribe. The exclusion of Indians not taxed evinced a purpose to include those subject to taxation in the state of their residence. Language could not express that purpose with more distinctness than does the act of 1866. Any doubt upon the subject, in respect to persons of the Indian race residing in the United States or territories, and not members of a tribe, will be removed by an examination of the debates, in which many distinguished statesmen and lawyers participated in the senate of the United States when the act of 1866 was under consideration.
Mr. Trumbull, who reported the bill, modified it by inserting the words 'excluding Indians not taxed.' What was intended by that modification appears from the following language used by him in debate: 'Of course we cannot declare the wild Indians who do not recognize the government of the United States, who are not subject to our laws, with whom we make treaties, who have their own laws, who have their own regulations, whom we do not intend to interfere with or punish for the commission of crimes one upon the other, to be the subjects of the United States in the sense of being citizens.
And certainly it must be conceded that except in cases of persons 'naturalized in the United States,' (which phrase refers only to those who are embraced by the naturalization laws, and not to Indians,) the fourteenth amendment does not require the citizenship granted by it to be evidenced by the record of any court, or of any department of the government.
Judge COOLEY, referring to the definition of national citizenship as contained in the fourteenth amendment, says: 'By the express terms of the amendment, persons of foreign birth, who have never renounced the allegiance to which they were born, though they may have a residence in this country, more or less permanent, for business, instruction, or pleasure, are not citizens. Neither are the aboriginal inhabitants of the country citizens, so long as they preserve their tribal relations and recognize the headship of their chiefs, notwithstanding that, as against the action of our own people, they are under the protection of the laws, and may be said to owe a qualified allegiance to the government. When living within territory over which the laws, either state or territorial, are extended, they are protected by, and, at the same time, held amenable to, those laws in all their intercourse with the body politic, and with the individuals composing it; but they are also, as a quasi foreign people, regarded as being under the direction and tutelage of the general government, and subjected to peculiar regulations as dependent communities. They are 'subject to the jurisdiction' of the United States only in a much qualified sense; and it would be obviously inconsistent with the semi-independent character of such a tribe, and with the obedience they are expected to render to their tribal head, that they should be vested with the complete rights--or, on the other *120 hand, subjected to the full responsibilities--of American citizens. It would not for a moment be contended that such was the effect of this amendment. When, however, the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic; he gives evidence of his purpose to adopt the habits and customs of civilized life; and, as his case is then within the terms of this amendment, it would seem that his right to protection, in person, property, and privilege, must be as complete as the allegiance to the government to which he must then be held; as complete, in short, as that of any other native-born inhabitant.' 2 Story, Const. (Cooley's Ed.) § 1933, p. 654. To the same effect are Ex parte Kenyon, 5 Dill. 390; Ex parte Reynolds, Id. 397; U. S. v. Crook, Id. 454; U. S. v. Elm, Dist. Ct. U. S., N. D. N. Y. 23 Int. Rev. Rec. 419.
For, according to the decision in Cherokee *122 Nation v. Georgia, 5 Pet. 17, the tribe of which the parents of plaintiff were members was not 'a foreign state, in the sense of the constitution,' but a domestic dependent people, 'in a state of pupilage,' and 'so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered an invasion of our territory and an act of hostility.' They occupied territory which the court, in that case, said composed 'a part of the United States,' the title to which this nation asserted independent of their will.
37. Are American Samoans born in the United States but not subject to the jurisdiction thereof, or not born within the United States, but subject to the jurisdiction thereof? Or both (American Samoans are born in (politically) but not within (geographically) the United States and in a place (geographically) subject to the jurisdiction but not as (politically) subjects of the jurisdiction thereof)? To different conceptions of the US are involved: The national polity (14th in the United States) includes citizen nationals (subject to the jurisdiction thereof) and noncitizen nationals (not equally subject to the political jurisdiction thereof), the territory (13th within the United States) includes the several states and incorporated inchoate state Territory and ( or subject to the jurisdiction thereof) unincorporated territories and possessions.
38. The law of nations, included within the common law, and part of our Constitution, includes the law of the “shoteh”: The truth of the mater is that the power to provide for the issuance of such orders rests upon analogous principles to those upon which the liberty and freedom or action of children and persons of unsound minds is restrained, without consulting their wishes, but for their own good and the general welfare. The power rests upon necessity, that "great master of all things," and is properly exercised only where certain individuals or groups of individual are found to be of such a low grade of civilization that their own wishes cannot be permitted to determine their mode of life or place of residence. RUBI, ET AL. vs. PROVINCIAL BOARD OF MINDORO
39. If the political conception is not satisfactory, so against the geographical conception is likewise inadequate. The reason it that the motive of the law relates not to a particular people, because of their polity, or to a particular province because of its location, but the whole intent of the law is predicated n the civilization or lack of civilization of the inhabitants. …RUBI, ET AL. vs. PROVINCIAL BOARD OF MINDORO
40. RUBI, ET AL. vs. PROVINCIAL BOARD OF MINDORO
United States vs. Crook ([1879], Fed. Cas. No. 14891).
United States ex rel. Standing Bear v. Crook
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Legal Citation: 25 F.Cas. 695 (1879)
Petitioners
Standing Bear and other Ponca Indians
Respondent
George Crook, U.S. Army General
Petitioners' Claim
That confinement of American Indians by the U.S. Army violated the Due Process Clause of the Fourteenth Amendment.
Chief Lawyers for Petitioners
John L. Webster, Andrew J. Poppleton
Chief Lawyer for Respondent
Genio M. Lambertson
Justice for the Court
Elmer S. Dundy
Place
Lincoln, Nebraska
Date of Decision
12 May 1879
Decision
The Court upheld Standing Bear's claim and ordered the Poncas released from U.S. custody.
Significance
The ruling established that Indians are "persons" under U.S. law and those who are not members of tribes have rights to challenge U.S. actions. Issues surrounding Standing Bear's...
The only case which is even remotely in point and which, if followed literally, might result in the issuance of habeas corpus, is that of United States vs. Crook ([1879], Fed. Cas. No. 14891). This was a hearing upon return to a writ of habeas corpus issued against Brigadier General George Crook at the relation of Standing Bear and other Indians, formerly belonging to the Ponca Tribe of Indians. The petition alleged in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe, and completely severed their tribal relations therewith, and had adopted the general habits of the whites, and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any of the laws of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook. The substance of the return to the writ was that the relators are individual members of, and connected with, the Ponca tribe of Indians; that they had fled or escaped form a reservation situated some place within the limits of the Indian Territory — had departed therefrom without permission from the Government; and, at the request of the Secretary of the Interior, the General of the Army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian Territory, and that, pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian Territory.
The first question was whether an Indian can test the validity of an illegal imprisonment by habeas corpus. The second question, of much greater importance, related to the right of the Government to arrest and hold the relators for a time, for the purpose of being returned to the Indian Territory from which it was alleged the Indian escaped. In discussing this question, the court reviewed the policy the Government had adopted in its dealing with the friendly tribe of Poncase. Then, continuing, the court said: "Laws passed for the government of the Indian country, and for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the Government almost unlimited power over the persons who go upon the reservations without lawful authority . . . Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not , need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld." The decision concluded as follows:
The reasoning advanced in support of my views, leads me to conclude:
1. that an Indian is a 'person' within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States or where he is restrained of liberty in violation of the constitution or laws of the United States.
2. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws therefore.
3. That n rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do.
4. that the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And,
5. Being restrained of liberty under color of authority of the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered.
C. LIBERTY; DUE PROCESS OF LAW; EQUAL PROTECTION OF THE LAWS.
The third constitutional argument is grounded on those portions of the President's instructions of to the Commission, the Philippine Bill, and the Jones Law, providing "That no law shall be enacted in said Islands which shall deprive any person of life, liberty, or property without due process of law, or deny to any person therein the equal protection of the laws." This constitutional limitation is derived from the Fourteenth Amendment to the United States Constitution — and these provisions, it has been said "are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality." (Yick Wo vs. Hopkins [1886], 118 U.S., 356.) The protection afforded the individual is then as much for the non-Christian as for the Christian.
The conception of civil liberty has been variously expressed thus:
Every man may claim the fullest liberty to exercise his faculties, compatible with the possession of like liberty by every other. (Spencer, Social Statistics, p. 94.)
Liberty is the creature of law, essentially different from that authorized licentiousness that trespasses on right. That authorized licentiousness that trespasses on right. It is a legal and a refined idea, the offspring of high civilization, which the savage never understood, and never can understand. Liberty exists in proportion to wholesome restraint; the more restraint on others to keep off from us, the more liberty we have . . . that man is free who is protected from injury. (II Webster's Works, p. 393.)
Liberty consists in the ability to do what one caught to desire and in not being forced to do what one ought not do desire. (Montesque, spirit of the Laws.)
Even liberty itself, the greatest of all rights, is no unrestricted license to ac according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. (Field, J., in Crowley vs. Christensen [1890], 137 U.S., 86.)
Liberty does not import "an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis, organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others . . . There is, of course, a sphere with which the individual may asserts the supremacy of his own will, and rightfully dispute the authority of any human government — especially of any free government existing under a written Constitution — to interfere with the exercise of that will. But it is equally true that in very well-ordered society charged with the duty of conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint to be enforced by reasonable regulations, as the safety of the general public may demand." (Harlan, J., In Jacobson vs. Massachusetts [1905] 197 U.S., 11.)
Liberty is freedom to do right and never wrong; it is ever guided by reason and the upright and honorable conscience of the individual. (Apolinario Mabini.)
Civil Liberty may be said to mean that measure of freedom which may be enjoyed in a civilized community, consistently with the peaceful enjoyment of like freedom in others. The right to Liberty guaranteed by the Constitution includes the right to exist and the right to be free from arbitrary personal restraint or servitude. The term cannot be dwarfed into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man to enjoy the faculties with which he has been endowed by this Creator, subject only to such restraints as are necessary for the common welfare. As enunciated in a long array of authorities including epoch-making decisions of the United States Supreme Court, Liberty includes the right of the citizens to be free to use his faculties in all lawful ways; to live an work where he will; to earn his livelihood by an lawful calling; to pursue any avocations, an for that purpose. to enter into all contracts which may be proper, necessary, and essential to his carrying out these purposes to a successful conclusion. The chief elements of the guaranty are the right to contract, the right to choose one's employment, the right to labor, and the right of locomotion.
In general, it may be said that Liberty means the opportunity to do those things which are ordinarily done by free men. (There can be noted Cummings vs. Missouri [1866], 4 Wall, 277; Wilkinson vs. Leland [1829], 2 Pet., 627; Williams vs. Fears [1900], 179 U.S., 274; Allgeyer vs. Louisiana [1896], 165, U.S., 578; State vs. Kreutzberg [1902], 114 Wis., 530. See 6 R.C.L., 258, 261.)
One thought which runs through all these different conceptions of Liberty is plainly apparent. It is this: "Liberty" as understood in democracies, is not license; it is "Liberty regulated by law." Implied in the term is restraint by law for the good of the individual and for the greater good of the peace and order of society and the general well-being. No man can do exactly as he pleases. Every man must renounce unbridled license. The right of the individual is necessarily subject to reasonable restraint by general law for the common good. Whenever and wherever the natural rights of citizen would, if exercises without restraint, deprive other citizens of rights which are also and equally natural, such assumed rights must yield to the regulation of law. The Liberty of the citizens may be restrained in the interest of the public health, or of the public order and safety, or otherwise within the proper scope of the police power. (See Hall vs. Geiger-Jones [1916], 242 U.S., 539; Hardie-Tynes Manufacturing Co. vs. Cruz [1914], 189 Al., 66.)
None of the rights of the citizen can be taken away except by due process of law. Daniel Webster, in the course of the argument in the Dartmouth College Case before the United States Supreme Court, since a classic in forensic literature, said that the meaning of "due process of law" is, that "every citizen shall hold his life, liberty, property, an immunities under the protection of the general rules which govern society." To constitute "due process of law," as has been often held, a judicial proceeding is not always necessary. In some instances, even a hearing and notice are not requisite a rule which is especially true where much must be left to the discretion of the administrative officers in applying a law to particular cases. (See McGehee, Due Process of Law, p. 371.) Neither is due process a stationary and blind sentinel of liberty. "Any legal proceeding enforced by public authority, whether sanctioned by age and customs, or newly devised in the discretion of the legislative power, in furtherance of the public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law." (Hurtado vs. California [1883], 110, U.S., 516.) "Due process of law" means simply . . . "first, that there shall be a law prescribed in harmony with the general powers of the legislative department of the Government; second, that this law shall be reasonable in its operation; third, that it shall be enforced according to the regular methods of procedure prescribed; and fourth, that it shall be applicable alike to all the citizens of the state or to all of a class." (U.S. vs. Ling Su Fan [1908], 10 Phil., 104, affirmed on appeal to the United States Supreme Court. 1) "What is due process of law depends on circumstances. It varies with the subject-matter and necessities of the situation." (Moyer vs. Peablody [1909], 212 U. S., 82.)
The pledge that no person shall be denied the equal protection of the laws is not infringed by a statute which is applicable to all of a class. The classification must have a reasonable basis and cannot be purely arbitrary in nature.
We break off with the foregoing statement, leaving the logical deductions to be made later on.
D. SLAVERY AND INVOLUNTARY SERVITUDE.
The fourth constitutional contention of petitioner relates to the Thirteen Amendment to the United States Constitution particularly as found in those portions of Philippine Organic Law providing "That slavery shall not exist in said Islands; nor shall involuntary servitude exist except as a punishment for crime whereof the party shall have been duly convicted." It is quite possible that the Thirteenth Amendment, since reaching to "any place subject to" the "jurisdiction" of the United States, has force in the Philippine. However this may be, the Philippine Legislature has, by adoption, with necessary modifications, of sections 268 to 271 inclusive of the United States Criminal Code, prescribed the punishment for these crimes. Slavery and involuntary servitude, together wit their corollary, peonage, all denote "a condition of enforced, compulsory service of one to another." (Hodges vs. U.S. [1906], 203 U.S., 1.) The term of broadest scope is possibly involuntary servitude. It has been applied to any servitude in fact involuntary, no matter under what form such servitude may have been disguised. (Bailey vs. Alabama [1910], 219 U.S., 219.)
The Secretary of the Interior, who is the official charged with the supervision of all the non-Christian people, has adopted as the polaris of his administration — "the advancement of the non-Christian elements of our population to equality and unification with the highly civilized Christian inhabitants." This is carried on by the adoption of the following measures:
(a) Pursuance of the closer settlement policy whereby people of seminomadic race are induced to leave their wild habitat and settle in organized communities.
(b) The extension of the public school system and the system of public health throughout the regions inhabited by the non-Christian people.
(c) The extention of public works throughout the Mohammedan regions to facilitate their development and the extention of government control.
(d) Construction of roads and trials between one place and another among non-Christians, to promote social and commercial intercourse and maintain amicable relations among them and with the Christian people.
(e) Pursuance of the development of natural economic resources, especially agriculture.
( f ) The encouragement of immigration into, and of the investment of private capital in, the fertile regions of Mindanao and Sulu.
The Secretary adds:
To attain the end desired, work of a civilizing influence have been continued among the non-Christian people. These people are being taught and guided to improve their living conditions in order that they may fully appreciate the benefits of civilization. Those of them who are still given to nomadic habits are being persuaded to abandon their wild habitat and settle in organized settlements. They are being made to understand that it is the purpose of the Government to organize them politically into fixed and per manent communities, thus bringing them under the control of the Government, to aid them to live and work, protect them from involuntary servitude and abuse, educate their children, and show them the advantages of leading a civilized life with their civilized brothers. In short, they are being impressed with the purposes and objectives of the Government of leading them to economic, social, and political equality, and unification with the more highly civilized inhabitants of the country. (See Report of the Department for 1917.)
Significance
The ruling established that Indians are "persons" under U.S. law and those who are not members of tribes have rights to challenge U.S. actions. Issues surrounding Standing Bear's vulnerability to the whim of U.S. officials led reformers to lobby for major changes in U.S. Indian policy. As a result, the 1887Dawes Act converted communally-controlled reservation lands into individually-owned land parcels. Though passed with good intentions, the act proved disastrous to Indian social and economic well-being; its harmful effects were still felt by the close of the twentieth century. In the 1990s Congress similarly sought to limit the rights of immigrants and foreign terrorist suspects tochallenge their detentions.
Before European "discovery" of North America, the Ponca Indians were originally part of a larger Siouan language group in eastern North America. The Siouan group gradually migrated westward, settling in various places. The Ponca and Omaha segments worked their way up the Mississippi and Missouri Rivers before eventually splitting apart. In the thirteenth century, the Ponca settled in future Dakota territory, near the mouth of the Niobara River where it joinsthe Missouri. With increasing numbers of whites entering the area by the mid-nineteenth century, food sources including wild game significantly declinedand foreign diseases such as smallpox spread rapidly. This resulted in the death of a majority of native peoples in the region. Through this trauma, the Ponca remained a small peaceful tribe.
In 1858, the Ponca ceded over 2,000,000 acres of land to the United States ina treaty, keeping less than 100,000 acres for a reservation. The Ponca soonmoved onto the reservation and began a transition to an agricultural economy.The United States's delay in providing assistance promised in the treaty ledto increased hardships. In addition, the more aggressive Sioux Indians and whites raided the Ponca for their food, possessions, and horses. By 1865, thePonca signed another treaty, moving their reservation for better protection.However, the following year a treaty between the United States and the mightySioux nation inadvertently placed most of the new Ponca reservation in a Sioux reservation. Hostilities renewed, with the Sioux destroying Ponca crops, stealing livestock, and killing tribe members. By the 1870s the Ponca, facingfood shortages and continued Sioux raids, were increasingly desperate. The United States, in an effort to appease the Sioux and protect the Ponca, decidedto remove the Ponca against their will to the recently established Indian Territory in the future state of Oklahoma.
Meanwhile, in the wake of the Civil War, Congress in 1868 ratified the Fourteenth Amendment to the Constitution guaranteeing that "all persons" have due process and equal protection of the laws. However, throughout much of the nineteenth century, the legal rights of Indian individuals were not a major concern of the federal government and or the courts. U.S.-Indian relations were largely directed by treaties rather than common law until Congress ended the treaty making period in 1871. Dealings with individual Indians were essentiallyavoided. In addition, the Bureau of Indian Affairs (BIA) had established anextensive system for policing and punishment that essentially operated beyondthe reach of the courts. Indian agents with ready access to the military hadbroad authority. It is likely that within this system thousands of individuals were detained for a wide range of alleged actions through the years. However, by the 1870s Indian issues rose in the national eye as the West became increasingly settled and reformers shifted attention from the slavery issue. Ademand for major reforms in the treatment of Indians gathered momentum.
Indians Are "Persons"
Having received funding and direction from the federal government, Indian agents from the BIA began seeking land in 1877. Among a group of Ponca that traveled to Indian Territory with the agents to find land was a respected triballeader named Standing Bear. Greatly discouraged by what they saw, the group abruptly returned to the Ponca reservation. However, by the end of April a large group of Poncas were convinced to move and left for their new home. Fearing that Standing Bear and his brother were serving as a disruptive force withthe remaining Ponca, the Indian agent directed the military to arrest and confine them. With Ponca resistance somewhat defused, the last group, includingStanding Bear, began their journey southward in May. Conditions along the journey were harsh and Standing Bear's daughter died on the trip. In their new home, the Ponca found that no reservation had yet been established apart fromother tribal lands. Through 1878, with the lack of housing and little government support for cultivation, many died, including a son of Standing Bear. Distressed, he and over 20 others left in January of 1879 to return home. Upon arrival at the Omaha Reservation en route to their homeland, they were arrested in a strictly military operation and taken to Fort Omaha, Nebraska, with the intent of being sent back to Indian Territory.
Lawyers for Standing Bear filed for a writ of habeas corpus, a requestthat a person being detained be brought before a court to review the legality of the imprisonment, with the U.S. Circuit Court of the District of Nebraska. Standing Bear argued before Judge Elmer Dundy that, having committed no crime and not being informed why he was arrested, he should be released. He also claimed to no longer be a member of the Ponca, having left the tribe in Indian Territory so as to adopt "the general habits of the whites" and become self-sufficient. General George Crook, on behalf of the United States, responded that the Ponca prisoners were still members of the tribe and had disobeyedIndian agent orders to settle in Indian Territory and pursue "the habits andvocations of civilized life." Crook, using the 1857 Dred Scott slaverycase findings, argued that Indians, like blacks, did not possess rights to sue in federal courts as part the Fourteenth Amendment's Due Process Clause. He contended only U.S. citizens could request writs.
With an Indian suing a U.S. Army general for the first time in the federal courts, the trial received national attention. Judge Dundy ruled on several keypoints. First, Dundy found that U.S. habeas corpus law applied "to all mankind" without requirement of citizenship, and that "even an Indian" is aperson under the Webster Dictionary definition. Dundy wrote that when"a person is charged we do not inquire upon the trial in what country the accused was born nor to what race he belongs." Therefore, Dundy continued, "itwould, indeed, be a sad commentary on . . . our laws, to hold that Indians .. . cannot test the validity of an alleged illegal imprisonment." Therefore,Standing Bear could bring the lawsuit. Second, Dundy found that all persons in the United States had the "natural and inherent right . . . to . . . life,liberty, and pursuit of happiness." Therefore, Standing Bear had the legal right to withdraw from tribal membership. Third, Dundy assessed whether the United States had legal power to dictate to Indians who were not members of tribes where to live. He could not find any law or treaty that gave the United States that power.
Dundy concluded that the United States could use military force to remove a person from a reservation, but law required the person be turned over to civilian custody after removal, which had not happened with Standing Bear. The army had no broad authority to detain Indians without full civilian due processprotections. Dundy wrote, "In time of peace no authority, civil or military,exists for transporting Indians from one section of the country to another, without the consent of the Indians, nor to confine them to any particular reservation against their will." Dundy ordered Standing Bear and the other Poncas"discharged from custody." Crook filed an appeal, but the United States decided to drop the case.
Impact
Standing Bear was the first case to challenge the U.S. government's extensive use of military authority over Indians and to question the legal authority of the United States to confine Indians on reservations against their will. The decision was the first recognition that Indians were persons under the Fourteenth Amendment. However, Indians still did not have citizenship status, and their precise legal standing remained poorly defined. The Indian Citizenship Act of 1924 later provided some clarification.
Freed, Standing Bear, and the others promptly returned to the Niobara River area but were without a country, living on an island overlooked in the Sioux treaty. Standing Bear filed suit to reclaim reservation lands given to the Sioux, eventually winning judgment in December of 1880 with Judge Dundy again presiding. However, a presidential commission including General Crook was created to study the Ponca situation. Based on the commission's findings, President Rutherford B. Hayes recommended to Congress in January of 1881 that each Ponca be provided 160 acres of land, either in Indian Territory or on the Niobara, whichever the individuals wished. The allotment would be nontaxable for 30 years and funding for agricultural supplies would be provided. Congress passed an act adopting the recommendations, but another nine years passed beforethe Niobara Ponca received their lands. Meanwhile, Standing Bear became a spokesman for Indian rights touring the eastern states before his death in 1908.
The court held in Standing Bear that any person not a citizen of the United States and in custody of U.S. authorities has the right to challenge the custody's legality through the writ of habeas corpus. That Indians on reservations had writ powers posed a significant new threat to the previously unchallenged powers of BIA Indian agents. Indians now had much the same rights as foreign nationals. However, the Standing Bear decision was largely ignored as court precedent in this regard. Few legal challenges to the authority of Indian agents followed. Many continued to argue that Indians should be subjected to military authority due to their "conquered" status.
Importantly, Standing Bear contributed toward a major change in U.S.--Native American policy with substantial implications across the nation. Theearlier policy of isolating Indians on reservations dramatically changed in the 1880s to a policy of forcing Indians to blend into the dominant white culture. In 1887, Congress passed the General Allotment Act, also known as the Dawes Act. The act applied the basic concepts of the Hayes commission report toIndians throughout the nation. The act authorized the BIA to divide communally-owned tribal land, such as reservations, among tribal members in small sections, called allotments. Supporters of Standing Bear's cause believed this act would free Indians from arbitrary relocation by U.S. authorities by makingthem private property owners. Actually, the Indian controlled land base in the United States substantially eroded from 138 million acres in 1887 to only52 million acres in 1934. "Surplus" lands, often the more agriculturally productive, were made available to whites. Towns grew within reservation boundaries. Congress, upon seeing the devastation to Indian society that allotments had wrought, ended the allotment era in 1934.
The issue of individuals' status under the Due Process Clause rose again in the 1990s, spurred by an increasingly anti-immigrant mood in the United States. Congress fundamentally changed U.S. immigration laws with passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. The law substantially reduced the legal rights of alien immigrants who were subject toeither expulsion or criminal prosecution for attempting to reenter the UnitedStates. Immigrants could be deported without a trial or hearing before a judge. As with the BIA in the Ponca case, the Immigration and Naturalization Service (INS) was given broad powers in an expedited removal process thatstripped federal courts of their authority to review INS decisions. Similarly, Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996which allowed detention of noncitizens in U.S. jails outside the rules of due process by prohibiting the filing of habeas corpus petitions.
Read more: United States ex rel. Standing Bear v. Crook - Further Readings http://74.125.153.132/search?q=cache:8D2LKJuCYWkJ:law.jrank.org/pages/13670/United-States-ex-rel-Standing-Bear-v-Crook.html+united+states+v.+crooks&cd=1&hl=zh-TW&ct=clnk&gl=tw#ixzz0YEFWA6O8
Tribes, treaties, and constitutional tribulations
??:Vine Deloria Jr., David Eugene Wilkins
http://books.google.com.tw/books?id=rv6MFkS3mkUC&pg=PA145&lpg=PA145&dq=United-States-ex-rel-Standing-Bear-v-Crook&source=bl&ots=Mqn4hqJi1t&sig=g0HBis4Wbs7a_zYUZUvnz8Xj3Qo&hl=zh-TW&ei=vRoSS8ilLIvk7AOng_3YBQ&sa=X&oi=book_result&ct=result&resnum=10&ved=0CDYQ6AEwCQ#v=onepage&q=United-States-ex-rel-Standing-Bear-v-Crook&f=false
Matter of Heff 1905, US v Nice 1906
Groundhog v Keeler
Talton v Mayes, Native American Church v Navajo Tribal Council (higher than states)
McKay v Campbell
US v Osborn
p151 meaning of Indians not taxed, is those who remain in political allegiance to their tribe primarily…
legal
argument as to the involuntariness of his service. He contends that “[a] citizen who does not and
cannot know that he enjoys citizenship in the United States is incapable of forming the requisite
intent to expatriate.” Pl.’s Motion at 11 (citing Rogers v. Patokoski, 271 F.2d 858 (9th Cir. 1959).
see United States v. Schiffer,
831 F. Supp. 1166, 1190 (E.D. Pa. 1993),
recall that under Elk v Wilkins, it was held that native American wards of the US (denied passports, but issued "letters of protection as wards enjoying protection of the US" under the law of war and law of nations, see matter of Hampa letter issued at Odessa, and passport application of Nespar Humper or Bended Moccasins)
were not citizens of the US... other cases opine that native Americans were noncitizen nationals... in any case, the Supreme Court said that tribes were not subject to the jurisdiction of the US in the 14th amendment section one sense (which is not to say slavery is permitted therein under the 13th amendment)...
so Standing Bear means that a noncitizen (albeit not an alien per se, but persons held under the law of war are not aliens either, but captures or conquered peoples) enjoys a right of release in habeas from a place without the jurisdiction of the United States (Indian tribal area reservations) into the US... also note that this decision was widely studied by the military and informs the intentional efforts by the militar to create habeas free zones (see Ochikubo decision)...
Judge Paul Friedman is currently adjudicating analogous matters related to the CNMI and federal attempts to usurp local self-government rights to determine who may enter and reside therein, etc...
STANDING BEAR'S VICTORY
Judge Dundy Issues an Order Releasing the Ponca Indians.
A Decision Far Reaching in its Effects.
There is no Law for Using the Military to Force Indians from one Place to Another.
The Indian Ring is Shorn of its Power.
An Indian has Some Rights Which the Courts will Protect.
SYLLABUS.
United States ex ret. Standing Bear vs. George Crook, a Brigadier General of the Army of the U.S. Before Elmer S. Dundy, U.S. District Judge for Nebraska. Habeas Corpus.
An Indian is a person within the meaning of the habeas corpus act, and as such is entitled to sue out a writ of Habeas corpus in the federal court, when it is shown that the petitioner is deprived of liberty under color of authority of the United States, or is in custody of an officer in violation of the constitution, or a law of the United States, or in violation of a treaty made in pursuance thereof.
The right of expatriation is a natural, inherent, and inalienable right, and extends to the Indians as well as to the more fortunate white race.
The commissioner of Indian affairs has ample authority for removing from an Indian reservation all persons found thereon without authority of law, or whose presence may be detrimental to the peace and welfare of the Indians.
The military power of the government may be employed to effect such removal. But where the removal is effected, it is the duty of the troops to convey the persons so removed by the most convenient and safe route, to the civil authorities of the judicial district in which the offence may be committed, to be proceeded against in due course of law.
In time of peace no authority, civil or military, exist for transporting Indians from one section of the country to another without the consent of the Indians, nor to confine them to any particular reservation against their will, and where officers of the government attempt to do this, and arrest and hold Indians who are at peace with the government for the purpose of removing them to, and confining them on, a reservation the Indian Territory, they will be released on habeas corpus.
A. J. Poppleton and Jon L. Webster, For the Relators
G. M. Lambertson U.S. Attorney for the Government.
THE FACTS OF THE CASE.
The facts are fully stated for the opinion of the court.
During the fifteen years in which I have been engaged in administering the laws of my country, I have never been called upon to hear or decide a case that appealed so strongly to my sympathy as the one now under consideration. On the one side we have a few of the remnants of a once numerous and powerful, but now weak, insignificant, unlettered, and generally despised race. On the other, we have the representative of one of the most powerful, most enlightened, and most christianized nations of modern times. On the one side we have the representatives of this wasted race coming in to this national tribunal of ours asking for justice and liberty to enable them to adopt our boasted civilization and to pursue the arts of peace which have made us great and happy and a nation. On the other side we have this magnificent, if not magnanimous government, resisting this application with the determination of sending these people back to the country which is to them less desirable than perpetual imprisonment in their own native land. But I think it is creditable to the heart and mind of the brave and distinguished officer who is made respondent herein, to say that he has no sort of sympathy in the business in which he is forced by his position to bear a part so conspicuous. And so far as I am individually concerned I think it not improper to say that if the strongest possible sympathy could give the relators title to freedom, they would have been restored to liberty the moment the arguments in their behalf were closed. No examination or further thought would then have been necessary or expedient. But in a country where liberty is regulated by law, something more satisfactory and enduring than mere sympathy must furnish and constitute the rule and basis of judicial section. It follows that this case must be examined and decided on principles of law, and that unless the relators are entitled to their discharge under the constitution or laws of the United States, or some treaty made pursuance thereto, they must be remanded to the custody of the officers who caused their arrest, to be returned to the Indian Territory, which the left without the consent of the government.
COMMENCEMENT OF SUIT
On the 8th of April, 1879, the relators, Standing Bear, and twenty-five others, during the session of the court held at that time at Lincoln, presented their petition, duly verified, praying for the allowance of a write of habeas corpus, and their final discharge from custody thereunder.
The Petition alleges, in substance that the relators are Indians who have formerly belonged to the Ponca tribe of Indians, now located in the Indian Territory; that they had some time previously withdrawn from the tribe and completely severed their tribal relations therewith, and had adopted the general habits of the whites and were then endeavoring to maintain themselves by their own exertions, and without aid or assistance from the general government; that whilst they were thus engaged, and without being guilty of violating any law of the United States, they were arrested and restrained of their liberty by order of the respondent, George Crook.
The writ was issued and served on the respondent on the 8th day of April, and the distance between the place where the writ was made returnable and the place where the relators were confined being more than twenty miles, ten day were allowed in which to make return.
WRIT ISSUED
On the 18th day of April the writ was returned, and the authority for the arrest and detention is therein shown. The substance of the return to the writ, and the additional statement since filed, is that the relators are individual members of, and connected with the Ponca tribe of Indians; that they had fled or escaped from a reservation situated some place within the limits of the Indian territory; had departed therefrom without the permission of the government, and at the request of the secretary of the interior, the general of the army had issued an order which required the respondent to arrest and return the relators to their tribe in the Indian territory, and that pursuant to the said order, he had caused the relators to be arrested on the Omaha Indian reservation, and that they were in his custody for the purpose of being returned to the Indian territory.
It is claimed upon the one side and denied upon the other, that the relators had withdrawn, and severed for all time, their connection with the tribe to which they belonged. And upon this point alone was there any testimony produced by either party hereto. The other matters stated in the petition, and the return to the writ, are conceded to be true, so that the questions to be determined are purely questions of law.
On the 8th of March, 1859, a treaty was made by the United States with the Ponca tribe of Indians, by which a certain tract of country north of the Niobrara river, and west of the Missouri, was set apart for the permanent home of the said Indians, in which the government agreed to protect them during their good behavior. But just when, or how, or why, or under what circumstances the Indians left their reservation in Dakota and went to the Indian Territory does not appear.
JURISDICTION OF COURT
The district attorney very earnestly questions the jurisdiction of the court to issue the writ and to hear and determine the case made herein, and has supported his theory with an argument of great ingenuity and much ability. But nevertheless, I am of the opinion that his premises were erroneous and his conclusion therefore wrong and unjust. The great respect I entertain for that officer, and the very able manner in which his views were presented, make it necessary for me to give somewhat at length the reasons which lead me to this conclusion.
The district attorney discussed at length reasons which led to the writ of habeas corpus, and the character of, and proceedings and practice in connection therewith in the parent country. It was claimed that the laws of the realm limited the right to sue out this writ to the free subjects of the kingdom, and that none others came within the benefits of such beneficial laws. And reasoning from analogy it is claimed that none but American citizens are entitled to sue out this high prerogative writ in any of the federal courts. I have not examined the English laws regulating the suing out of the writ, nor have I thought it unnecessary so to do. Of this I will only observe that if the laws of England are as they are claimed to be, they will appear at a disadvantage when they are compared with our own. This only proves that the laws of a limited monarchy are sometimes less wise and humane than the laws of our own good republic that whilst the parliament of Great Britain was legislating in behalf of the favored law, the congress of the United States was legislating in behalf of all mankind who come within our jurisdiction.
Section 751 of the "Revised Statutes" declares that "the supreme court and the circuit and district courts shall have power to issue writs of habeas corpus." Section 753 confers the power to issue writs on the judges of said courts within their jurisdiction, and declares this to be 'for the purpose of inquiry into the cause of restraint of liberty." Section 753 restricts the power, limits the jurisdiction, and defines the cases where the writ may properly issue. That may be done under this section where the prisoner "is in custody under or by color of authority of the United States * * * or in custody in violation of the constitution or of a law or treaty of the United States. Thus it will be seen that when a person is in custody or deprived of his liberty under color or authority of the United States, or in violation of the constitution or laws or treaties of the United States, the federal judges have jurisdiction and write can properly issue. I take it that the true construction to be placed upon this act is this: That in all cases where federal officers, civil or military, have the custody and control of a person, claimed to be unlawfully restrained of liberty, that they are then restrained of liberty under color of authority of the United States, and the federal courts can properly proceed to determine the question of unlawful restraint because no other court can properly do so. In the other instance, the federal courts and judges can properly issue the writ in all cases where the person is alleged to be in custody in violation of the constitution or a law or treaty of the United States. In such a case it is wholly immaterial what officer, state or federal, has custody of the person seeking the relief. These relators may be entitled to the writ in either case. Under the first paragraph they certainly are, that is, if an Indian can be entitled to it at all, because they are in custody of a federal officer under color of authority of the United States, and they may be entitled to the writ under the other paragraph before recited, for the reason, as they allege, that they are restrained of liberty in violation of a provision of their treaty before referred to. Now it must be borne in mind that the habeas corpus act describes applicants for the writ as persons or parties, who may be entitled thereto. It nowhere describes them as citizens, nor is citizenship in any way or place made a qualification for sueing out the writ, and is the absence of express provision or necessary implication, which would require the interpretation contended for by the district attorney, I should not feel justified in giving the words person or party such a narrow construction. The most natural, and therefore most reasonable way, is to attach the same meaning to words and phrases when found in a statute that is attached to them when and where found in general use. If we do so in this instance then the question cannot be open to serious doubt. Webster describes a person as "a living soul; a self-conscious being: a moral agent; especially a living human being; a man, woman or child; an individual of the human race." This is comprehensive enough, it would seem, to include even an Indian. In describing and defining generic terms, the first section of the revised statutes declares that the word person includes co-partnerships and corporations. On the whole it seems to me quite evident that the comprehensive language used in this section is intended to apply to all mankind, as well the relators as the more favored white race. This will be doing no violence to language nor to the spirit or letter of the law, nor to the intention, so it is believed of the law-making power of the government.
ENTITLED TO THE WRIT
I must hold, that Indians, and consequently the relators, are persons, such as are described by and included within the laws before quoted. It is said, however, that this is the first instance on record in which an Indian has been permitted to sue out and maintain a writ of habeas corpus in a federal court, and therefore, the court must be without jurisdiction in the premises. This is a non-sequitor, I confess I do not know of another instance where this has been done, but I can also say that the occasion for it perhaps has never before seen so great. It may be that the Indians think it wiser and better in the end to resort to this peaceful process than it would be to undertake the hopeless task of redressing their own alleged wrongs by force of arms. Returning reason, and the sad experience of others similarly situated, has taught them the folly and madness of the arbitrament of the sword. They can readily see that any serious resistance on their part would be the signal for their utter extermination. Have they not then chosen the wider part, by resorting to the very tribunal erected by those they claim have wronged and oppressed them. This, however, is not the tribunal of their own choice but it is the only one into which they can lawfully go for deliverance. It cannot therefore be fairly said that because no Indian ever before invoked the aid of this writ in a federal court, that the rightful authority to issue it does not exist. Power and authority rightfully conferred does not necessarily cease to exist in consequence of long non-use. Though much time has elapsed and many generations have passed away since the passage of the original habeas corpus act from which I have quoted, it will not do to say that these Indians cannot avail themselves of its beneficient provisions simply because none of their ancestors ever sought relief thereunder.
Every person who comes within our jurisdiction, whether he be European, Asiatic, African, or "native to the manor born," must obey the laws of the United States. Every one who violates them incurs the penalty provided thereby. When a person is charged, in a proper way, with the commission of a crime, we do not enquire upon the trial in what country the accused was born, nor to what sovereign or government allegiance is due, nor to what race he belongs. The questions of guilt and innocence only form the subjects of inquiry. An Indian then, especially off from his reservation, is amenable so the criminal laws of the United States the same as all other persons. They being subject to arrest for the violation of our criminal laws and being person such as the law contemplates and includes in the description of parties who may sue out the writ, it would indeed be a sad commentary on the justice and impartiality of our laws, to hold that Indians, though natives of our own country cannot test the validity of an alleged illegal imprisonment in this manner, as well as a subject of a foreign government who may happen to be sojourning in this country but owing it no sort of allegiance. I cannot doubt that congress intended to give to every person who might be unlawfully restrained of liberty under color of authority of the United States the right to the writ and a discharge thereon. I conclude then, that so far as the issuing of the writ is concerned, it was properly issued, and that the relators are within the jurisdiction conferred by the habeas corpus act.
A question of much greater importance remains for consideration, which when determined will be decisive of this whole controversy. This relates to the right of the government to arrest and hold the relators for a time for the purpose of being returned to a point to the Indian Territory, from which it is alleged the Indians escaped. I am not fain enough to think that I can do full justice to a question like the one under consideration. But as the matter furnishes so much valuable material for discussion, and so much food for reflection, I shall try to present it, as viewed from my own standpoint, without reference to consequences or criticism, which though not specially invited, will be sure to follow.
A review of the policy of the government adopted in its dealings with the friendly tribe of Poncas, to which the relators at one time belonged, seems not only appropriate, but almost indispensable to a correct understanding of this controversy. The Ponca Indians have been at peace with the government, and have remained the steadfast friends of the whites for many years. They lived peaceably upon the land and in the country they called their own.
THE ORIGINAL TREATY
On the 12th of March, 1858, they made a treaty with the United States by which they ceded all claims to lands except the following tract: "Beginning at a point on the Niobrara river and running due north so as to intersect the Ponca river twenty-five miles from its mouth, thence due south to the Niobrara river, and thence down and along said river to the place of beginning, which tract is hereby reserved for the future home of said Indians." In consideration of this cession the government agreed "to Protect the Poncas in the possession of the tract of land reserved for their future homes, and their persons and property thereon, during good behavior on their part." Annuities were to be paid them for thirty years, houses were to be built and schools were to be established and other things were to be done by the government in consideration of said cession. See page 997, 13 stat. at large. On the 10th of March, 1865, another treaty was made, and a part of the other reservation was ceded to the government. Other lands, however, were to some extent substituted therefore, and "by the way of rewarding them for their constant fidelity to the government, and citizens thereof, and with a view of returning to the said tribe of Ponca Indians their old burying grounds and corn fields." This treaty also provides for paying $15,000 for spoliations committed on the Indians.
See page 675, 14 vol., stat. at large.
On the 29th day of April, 1858, the government made a treaty with the several bands of Sioux Indians, which treaty was ratified by the senate on the 16th of the following February, in and by which the reservations set apart for the Ponca under former treaties were completely absolved. (15 Statutes at large, page 635) This was done without consultation with, or knowledge or consent on the part of, the Ponca tribe of Indians.
On the 15th of August, 1876, Congress passed the general Indian appropriation bill, and in it we find a provision authorizing the secretary of the interior to use $25,000 for the removal of the Ponca to the Indian Territory, and providing them a home thereto, with consent of the tribe. (See page 192, 19 vol. Statutes at large.)
In the Indian appropriation bill passed by congress on the 27th day of May, 1878, we find a provision authorizing the secretary of the interior to expend the sum of $80,000 for the purpose of removing and locating the Ponca Indians on a new reservation near the Kaw river.
No reference has been made to any other treaties or laws, under which the right to arrest and remove the Indians is claimed to exist.
The Poncas lived upon their reservation in Southern Dakota and cultivated a portion of the same until two or three years ago, when they removed therefrom, but whether by force or otherwise does not disappear. At all events, we find a portion of them, including the relations, located at some point in the Indian territory. There the testimony seems to show, is where the trouble commenced. Standing Bear, the principal witness, states that out of 581 Indians who went from the reservation in Dakota to the Indian territory, 158 died within a year or so, and a great proportion of the others were sick and disabled, caused in a great measure, no doubt, from change of climate, and to save himself and the survivors of his wasted family, and the feeble remnant of his little band of followers, he determined to leave the Indian Territory and return to his old home, where, to use his own language, "he might live and die in peace, and be buried with his fathers." He also states that he informed the agent of their final purpose to leave, never to return, and that he and his followers had finally, fully and forever severed his and their connection with the Ponca tribe of Indians, and to cut loose from the government, go to work, become self-sustaining, and adopt the habits and customs of a higher civilization. To accomplish what would seem to be a desirable and laudable purpose all who were able to do so went to work to earn a living. The Omaha Indians, who speak the same language, and with whom many of the Poncas have a long since continued to intermarry, gave them employment and ground to cultivate so as to make them self-sustaining. And it was when at the Omaha reservation and when thus employed, that they were arrested by order of the government for the purpose of being taken back to the Indian Territory. They claim to be unable to see the justice, or reason, or wisdom, or necessity of removing them by force from their own native plains and blood relations to a far off country in which they can see little but new made graves opening for their reception. The land from which they fled in fear has no attractions for them. The love of home and native land was strong enough in the minds of these people to induce them to brave every peril to return and live again where they had been reared. The bones of the dead son of Standing Bear were not to repose in the land they hoped to be leaving forever, but were carefully preserved and protected, and formed a part of what was to them a melancholy procession homeward. Such instances of parental affection and such love of home and native land may be heathen in origin, but it seems to me they are not unlike Christian in principle.
What is here stated in this connection is mainly for the purpose of showing that the relators did all they could to separate themselves from their tribe and to sever their tribal relations, for the purpose of becoming self sustaining and living without support from the government. This being so, presents the question as to whether or not an Indian can withdraw from his tribe, sever his tribal relations therewith, and terminate his allegiance thereto, for the purpose of making an independent living and adopting our own civilization.
EXPERATE NATIONS
If Indian tribes are to be regarded and treated as separate but dependent nations there can be no serious difficulty about the question. If they are not to be regarded and treated as separate, dependent nations, then no allegiance is owing from an individual Indian to his tribe, and he could therefore withdraw therefrom at any time. The question of expatriation has engaged the attention of our government from the time of its very foundation. Many heated discussions have been carried out between our own and foreign governments on this great question, until diplomacy has triumphantly secured the right to every person found within our jurisdiction. This right has always been claimed and admitted by our government and it is now no longer an open question. It can make but little difference then whether we accord to the Indian tribes a national character or not, as in either case I think the individual Indian possesses the clear and God-given right to withdraw from his tribe and forever live away from it, as though it had no further existence. If the right of expatriation was open to doubt in this country down to the year 1868, certainly since that time no sort of question as to the right can now exist. On the 27th of July, of that year, congress passed an act now appearing as sec. 1,999, of the revised statutes, which declares that:
"Whereas, the right of expatriation is a natural and inherent right of all people indisputable to the enjoyment of the right of life, liberty, and the pursuit of happiness; and, whereas, in the recognition of this principle the government has freely received emigrants from all nations, and invested them with the right of citizenship. **** Therefore any declaration, instruction, opinion, order or decision of any officer of the United States, which denies, restricts, impairs, or questions the right of expatriation, is declared inconsistent with the fundamental principles of the republic."
This declaration must forever settle the question until it is reopened by other legislation upon the same subject. This is, however, only reaffirming in the most solemn and authoritative manner a principle well settled and understood in this country for why years past.
In most, if not all, instances in which treaties have been made with the several Indian tribes, where reservations have been set apart for their occupancy, the government has either reserved the right or bound itself to protect the Indians thereon. Many of the treaties expressly prohibit white persons being on the reservations unless specially authorized by the treaties or acts of congress for the purpose of carrying out treaty stipulations.
Laws passed for the government of the Indian country, and I for the purpose of regulating trade and intercourse with the Indian tribes, confer upon certain officers of the government almost unlimited power over the persons who go upon the reservations without lawful authority. Section 2149 of the revised statutes authorizes and requires the commissioner of Indian affairs, with the approval of the secretary of the interior, to remove from any "tribal reservation" any person being thereon without authority of law, or whose presence within the limits of the reservation may, in the judgment of the commissioner, be detrimental to the peace and welfare of the Indians. The authority here conferred upon the commissioner fully justifies him in causing to be removed from Indian reservations all persons thereon in violation of law, or whose presence thereon may be detrimental to the peace end welfare of the Indians upon the reservations. This applies as well to an Indian as to a white person, and manifestly for the same reason, the object of the law being to prevent unwarranted interference between the Indians and the agent representing the government. Whether such an extensive discretionary power is wisely vested in the commissioner of Indian affairs or not, need not be questioned. It is enough to know that the power rightfully exists, and, where existing, the exercise of the power must be upheld. If, then, the commissioner has the right to cause the expulsion from the Omaha Indian reservation of all persons thereon who are there in violation of law, or whose presence may be detrimental to the peace and welfare of the Indians, then he must of necessity be authorized to use the necessary force to accomplish his purpose. Where, then, is he to look for this necessary force? The military arm of the government is the most natural and most potent force to be used on such occasions, and section 2150 of the revised statutes specially authorizes the use of the army for this service. The army, then, it seems, is the proper force to employ when intruders and trespassers who go upon the reservations are to be ejected therefrom.
The first sub-division of the Revised Statutes last referred to provides that "The military forces of the United States may be employed in such manner and under such regulations as the President may direct.
"First. In the apprehension of every person who may be to the Indian country in violation of law, and in conveying him immediately from the Indian country, by the nearest convenient and safe route, to the civil authority of the territory or judicial district in which such person shall be found, to be proceeded against in due course of law. *** " This is the authority under which the military can be lawfully employed to remove intruders from an Indian reservation. What may be done by the troops in such cases is here fully and clearly stated, and it is this authority, it is believed, under which the respondent acted.
USE OF THE MILITARY.
All Indian reservations held under treaty stipulations with the government must be deemed and taken to be a part of the Indian Country, within the meaning of our laws on that subject. The relators were found upon the Omaha Indian reservation, and being a part of the Indian country, and not being a part of the Indian country, and not being a part of the Omaha tribe of Indians, they were there without lawful authority, and if the commissioner of Indian officials deemed their presence detrimental to the peace and welfare of the Omaha Indians, he had lawful warrant to remove them from the reservation, and to employ the necessary military force to effect this object in safety. General Crook had the rightful authority to remove the relators from the reservation, and must stand justified in removing them therefrom. But when the troops are thus employed they must exercise the authority in the manner provided by the section of the law just read. This law makes it the duty of the troops to convey the parties arrested by the nearest convenient and safe route to the civil authority of the territory or judicial district in which such persons shall be found, to be proceeded against in due course of law. The duty of the military authorities is here vary clearly and sharply defined, and no one can be justified in departing therefrom, especially in time of peace. As general Cook had the right to arrest and remove the relators from the Omaha Indian reservation, it follows from what has been stated that the law required him to convey them to this city and turn them over to the marshal and United States attorney to be proceeded against in due course of law. Then proceedings could be instituted against them in either the circuit or district court, and if the relators had incurred a penalty under the law, punishment would follow. Otherwise they would be discharged from custody. But this course was not pursued in this case, neither was it intended to observe the laws in that regard, for General Crooks’s orders, emanating from higher authority, expressly required him to apprehend the relators and remove them by force to the Indian Territory, from which it is alleged they escaped. But in what General Crook has done in the premises no fault can e imputed to him. He was simply obeying the orders of his superior officers as a good soldier ought to do, but the orders, as we think, lack the necessary authority of law, and are therefore not binding on the relators.
I think I have shown pretty clearly the rightful authority vested in the commissioner of Indian affairs in cases like the one under consideration -- that the may call on the troops to assist in carrying out his lawful orders, and just how and for what purpose the authority is vested in him to remove trespassers and intruders from the Indian country.
I have searched in vain for the semblance of any authority justifying the commission in attempting to remove by force any Indians, whether belonging to a tribe or not, to any place, or for any other purpose than what has been stated. Certainly, without some specific authority found in an act of congress, or in a treaty with the Ponca tribe of Indians, he could not lawfully force the relators back to the Indian Territory, to remain and die in that country, against their will. In the absence of all treaty stipulations or laws of the United States authorizing such removal, I must conclude that no such arbitrary authority exists. It is true, if the relators are to be regarded as a part of the great nation of Ponca Indians, the government might, in time of war, remove them to any place of safety so long as the war should last, but perhaps no longer, unless they were charged with the commission of some crime. This is a war power merely, and exists in time of war only. Every nation exercises the right to arrest and detain an alien enemy during the existence of a war, and all subjects or citizens of the hostile nations are subject to be dealt with under this rule.
But it is not claimed that the Ponca tribe of Indians are at war with the United States, so that this war power might be used against them; in fact, they are amongst the most peaceable and friendly of all the Indian tribes, and have at times received from the government unmistakable and substantial recognition of their long-continued friendship for the whites In time of peace the war power remains in abeyance, and must be subservient to the civil authority of the government until something occurs to justify its exercise. No fact exists, and nothing has occurred, so far as the relators are concerned, to make it necessary or lawful to exercise such an authority over them. If they could be removed to the Indian Territory by force, and kept there in the same way, I can see no good reason why they might not be taken and kept by force in the penitentiary at Lincoln, or Leavenworth, or Jefferson City, or any other place which the commander of the forces might, in his judgment, see proper to designate. I cannot think that any such arbitrary authority exists in this country.
THE POINTS DECIDED
The reasoning advanced in support of my views, leads me to conclude:
First. That an Indian is a PERSON within the meaning of the laws of the United States, and has, therefore, the right to sue out a writ of habeas corpus in a federal court, or before a federal judge, in all cases where he may be confined or in custody under color of authority of the United States, or where he is restrained of liberty in violation of the constitution or laws of the United States.
Second. That General George Crook, the respondent, being commander of the military department of the Platte, has the custody of the relators, under color of authority of the United States, and in violation of the laws thereof.
Third. That no rightful authority exists for removing by force any of the relators to the Indian Territory, as the respondent has been directed to do.
Fourth. That the Indians possess the inherent right of expatriation, as well as the more fortunate white race, and have the inalienable right to "life, liberty, and the pursuit of happiness," so long as they obey the laws and do not trespass on forbidden ground. And,
Fifth. Being restrained of liberty under color of authority of t the United States, and in violation of the laws thereof, the relators must be discharged from custody, and it is so ordered.
41. CUMMINGS, Atty. Gen., et al. v. ISENBERG
No. 6684
Page 6 U.S. Const. amend. XIV contemplates two sources
of citizenship--birth and naturalization. Citizenship by
naturalization can only be acquired by naturalization
under the authority and in the forms of law. But
citizenship by birth is established by the mere fact of
birth under the circumstances defined in the United States
Constitution. Every person born in the United States, and
subject to the jurisdiction thereof, becomes at once a
citizen of the United States, and needs no naturalization.
A person born out of the jurisdiction of the United States
can only become a citizen by being naturalized, either by
treaty
6 F. Supp. 800, *806; 1934 U.S. Dist. LEXIS 1808, **20
1937 U.S. App. LEXIS 3509, **
United States Court of Appeals for the District of Columbia
89 F.2d 489; 67 App. D.C. 17; 1937 U.S. App. LEXIS 3509
A person born
out of the jurisdiction of the United States can only
become a citizen by being naturalized, either by treaty, as
in the case of the annexation of foreign territory
Ex parte GILROY (meaning of noncitizen national, ie native)
A native under U.S. Rev. Stat. § 4067 (U.S.
Comp. Stat. § 7615) includes a man who leaves the
country of his birth, and by reason of absence loses his
citizenship under some statute, but does not acquire
citizenship in the new country. Such a person is a native
of the country of birth, although no longer a citizen or
subject.
42. The Constitutional basis for noncitizen national status in the 14th amendment, US Constitution, law of war and occupation, and Insular Cases:
citizens of the TTPI ( a status created by the US to avoid extending direct obvious American nationality to the dark skinned Pacific Islanders... to brown to be Americans after all... under the trusteeship agreement which provided for citizenship of the TTPI as a status)... were actually noncitizen nationals of the US... how do we know? because since the involuntary expatriation cases declared the doctrine of Rabang v Boyd unconstitutional, so when the TTPI was granted independence, the CNMI chose to remain un-independent, so DOS felt they had to give the islanders the right to remain noncitizen nationals, and thus the Covenant for the CNMI provides that the CNMIers may retain noncitizen nationality instead of citizenship... this also shows that Melissa Patterson lied to the Court in Lin v US (USCA DC Cir 08-5078) when she said the ONLY statutory route to noncitizen nationality was under the INA... 48 USC 1931 Notes also provides a statutory route to noncitizen nationality (for those who are already constitutional noncitizen nationals under the 14th amendment by treaty)
48 U.S.C. S 1801 note
ARTICLE III: CITIZENSHIP AND NATIONALITY
Case Annotations: Sablan v. Inos, 3 N.M.I. 418--433; Sablan v. Tenorio, 4 N.M.I. 351-- 361.
Section 301. The following persons and their children under the age of 18 years on the effective date of this Section, who are not citizens or nationals of the United States under any other provision of law, and who on that date do not owe allegiance to any foreign state, are declared to be citizens of the United States, except as otherwise provided in Section 302;
(a) all persons born in the Northern Mariana Islands who are citizens of the Trust Territory of the Pacific Islands on the day preceding the effective date of this Section, and who on that date are domiciled in the Northern Mariana Islands or in the United States or any territory or possession thereof;
(b) all persons who are citizens of the Trust Territory of the Pacific Islands on the day preceding the effective date of this Section, who have been domiciled continuously in the Northern Mariana Islands for at least five years immediately prior to that date, and who, unless under age, registered to vote in elections for the Mariana Islands District Legislature or for any municipal election in the Northern Mariana Islands prior to January 1, 1975; and
(c) all persons domiciled in the Northern Mariana Islands on the day preceding the effective date of this Section, who, although not citizens of the Trust Territory of the Pacific Islands, on that date have been domiciled continuously in the Northern Mariana Islands beginning prior to January 1, 1974.
Case Annotations: Sablan v. Inos, 3 N.M.I. 418--430.
Section 302. Any person who becomes a citizen of the United States solely by virtue of the provisions of Section 301 may within six months after the effective date of that Section or within six months after reaching the age of 18 years, whichever date is the later, become a national but not a citizen of the United States by making a declaration under oath before any court established by the Constitution or laws of the United States or any court of record in the Commonwealth in the form as follows:
"I ______________ being duly sworn, hereby declare my intention to be a national but not a citizen of the United States."
242 F3d 1137 Pastor Basiente v. Dan Glickman US Shirley R Wat ... - [ ???? ]
An "alien" is defined as "any person not a citizen or national of the ... See Covenant SS 102, 501-506, reprinted at 48 U.S.C. S 1801 note; Hillblom
An "alien" is defined as "any person not a citizen or national of the United States." 8 U.S.C. S 1101(a)(3).
The Attorney General’s Office contends that it is impossible to be a citizen of a territory
that no longer exists, and claims that, as the Trust Territory gradually dissolved, so did the
exemption granted by 3 CMC § 4303(a). www.cnmilaw.org/pdf/supreme_court/2008-MP-01.pdf [so too there can be no ROC nationality for a government in exile, as the said country no longer exists but as a foreign policy fiction of the host country and the dream of existence]
THE CITIZENSHIP OF A PERSON BORN IN THE UNITED STATES
CHINESE PARENTS; In re LOOK TIN SING, on Habeas Corpus
21 F. 905, *911; 1884 U.S. App. LEXIS 1914, **11;
10 Sawy. 353; 1 Am. Law T. Rep. U.S. Cts. 22
By being born within the
allegiance of a government is only meant being
born within the protection of its laws, with a
consequent obligation to obey them when
obedience can be rendered. So, also, as to
members of the Indian tribes within the limits of
the United States. These tribes are independent
political communities, retaining, in many
respects, the right of self-government,
notwithstanding they are under the protecting
power of the United States; and a member thereof,
though born in the country, is not, by his birth, a
citizen of the United States, under the fourteenth
amendment. He is not born under their actual and
exclusive jurisdiction, which the amendment
contemplates. McKay v. Campbell, 2 Sawy. 118;
U.S. v. Osborne, 6 Sawy. 406; Worcester v.
Georgia, 6 Pet. 515.
[**8] With this explanation of the meaning of the
The clause as to citizenship was inserted in the
amendment not merely as an authoritative declaration of
the generally recognized law of the country, so far as the
white race is concerned, but also to overrule the doctrine
of the Dred Scott Case, affirming that persons of the
African race brought to this country and sold as slaves,
and their descendants, were not citizens of the United
States, nor capable of becoming such. 19 How. 393. The
clause changed the entire status of these people. It lifted
them from their condition of mere freedmen, and
conferred upon them, equally with all other native-born
the rights of citizenship. When it was adopted, the
naturalization laws of the United States excluded colored
persons from becoming citizens, and the freedmen and
their descendants, [**9] not being aliens, were withou
the purview of those laws. So the inability of persons to
become citizens under those laws in no respect impairs
the effect of their birth, or of the birth of their children
upon the status of either as citizens under the amendmen
in question.
UNITED STATES v. MORRIS et al.
125 F. 322, *; 1903 U.S. Dist. LEXIS 86, **
10 Sawy. 353; 1 Am. Law T. Rep. U.S. Cts. 22
"Citizens," under the United States Constitution
and laws, means free inhabitants born within the United
States, or naturalized under the laws of Congress. The
possession of political rights is not essential to
citizenship. Every citizen and freeman is endowed with
certain rights and privileges, to enjoy which no written
law or statute is required. These are fundamental or
natural rights, recognized among all free people. These
truths are held to be self-evident: That all men are created
equal; that they are endowed by their Creator with certain
unalienable rights; that among these are life, liberty and
the pursuit of happiness. That to secure these rights
governments are instituted among men, deriving their just
powers from the consent of the governed; that whenever
any form of government becomes destructive of these
ends, it is the right of the people to alter or abolish it, and
to institute a new government, laying its foundation on
such principles, and organizing its powers in such form,
as to them shall seem most likely to effect their safety
and happiness.
the thirteenth amendment
declares, "Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States or any place subject to their jurisdiction." There is
no limitation in that amendment confining the prohibition
[*324] to the states, but it includes everybody within the
jurisdiction of the national government.
Under the thirteenth amendment,
the legislation, so far as necessary or proper to eradicate
all forms and incidents of slavery and involuntary
servitude, may be direct and primary, operating upon the
acts of individuals, whether sanctioned by state
legislation [**7] or not.
Every citizen and freeman is endowed with certain
rights and privileges, to enjoy which no written law or
statute is required. These are fundamental or natural
rights, recognized among all free people. In our
Declaration of Independence, the Magna Charta of our
republican [**11] institutions, it is declared:
"We hold these rights to be self-evident: That all
men are created equal; that they are endowed by their
Creator with certain unalienable rights; that among these
are life, liberty and the pursuit of happiness. That to
secure these rights governments are instituted among
men, deriving their just powers from the consent of the
governed; that whenever any form of government
becomes destructive of these ends, it is the right of the
people to alter or abolish it, and to institute a new
government, laying its foundation on such principles, and
organizing its powers in such form, as to them shall seem
most likely to effect their safety and happiness.
"To illustrate: If, in a community or neighborhood
composed principally of whites, a citizen of African
descent, or of the Indian race, not within the exception of
the amendment, should propose to lease and cultivate a
farm, and a combination should be formed to expel him
and prevent him from the accomplishment of his purpose
on account of his race or color, it cannot be doubted that
this would be a case within the power of Congress to
remedy and redress. It would be a case of interference
with that person's [**20] exercise of his equal rights as
a citizen because of his race.
UNITED STATES v. RHODES
27 F. Cas. 785; 1866 U.S. App. LEXIS 330; 1 Abb. 28; 1 Am. Law T. Rep. U.S. Cts.
22
"The power to make colored persons citizens has
been actually exercised in repeated and important
instances. See the treaty with the Choctaws of September
27, 1830, art. 14; with the Cherokees of May 20, 1836,
art. 12; and the treaty of Guadeloupe Hidalgo, of
February 2, 1848, art. 8." Scott v. Sanford, 19 How. [60
U.S.] 486, opinion of Curtis, J.
See, also, the treaty with France of April 30, 1803,
by which Louisiana was acquired (article 3); and the
treaty with Spain of the 23rd of February, 1819, by which
Florida was acquired (article 3). The article referred to in
the treaty with France and in the treaty with Spain is in
the same language. In both the phrase "inhabitants" is
used. No discrimination is made against those, in whole
or in part, of the African race. So in the treaty of
Guadeloupe Hidalgo (articles 8 and 9), no reference is
made to color.
The power is applicable only to those of foreign
birth. Alienage is an indispensable element in the process.
To make one of domestic birth a citizen is not
naturalization, and cannot be brought within the exercise
of that power. There is a universal agreement of opinion
upon this subject. [**26] Scott v. Sanford, 19 How. [60
U.S.] 578; 2 Story, Const. 44.
MOSES WHITMIRE, TRUSTEE FOR THE CHEROKEE FREEDMEN v. THE
CHEROKEE NATION AND THE UNITED STATES
30 Ct. Cl. 138, *154; 1895 U.S. Ct. Cl. LEXIS 83, **34
3 Wall. Jr. 143
At the close of the civil war the Cherokee
country was virtually conquered territory, and the
Cherokee Nation at the mercy of the United States. As a
condition to peace and the continued existence of the
nation as a government, the United States insisted, among
other things, that certain Indian tribes might be
incorporated into and form a part of the body politic, or at
least be removed into the Cherokee country. This
condition was agreed to and embodied in the treaty.
When the
Cherokee people wrote into their constitution in 1866 "all
native-born Cherokees, all Indians and whites legally
members of the nation by adoption, and all freedmen,"
"shall be taken and be deemed to be citizens of the
Cherokee Nation," they fixed the status of the freedman
and raised him to the same rank of citizenship which they
themselves enjoyed.
GABE JACKSON v. THE UNITED STATES AND THE COMANCHE INDIANS
34 Ct. Cl. 441, *444; 1899 U.S. Ct. Cl. LEXIS 22, **7
3 Wall. Jr. 143
II. The treaty of 1866, permitting the Chickasaw
Indians to retain freedmen within the tribe as members of
it, forbids the idea that the freedmen were citizens of the
United States.
III. A Chickasaw freedman is entitled to the rights of
the legally recognized class to which he belongs, but not
to those of a citizen of the United States.
The thirteenth amendment to the Constitution [**8]
was adopted December, 1865, and declared that "neither
slavery nor involuntary servitude * * * shall exist within
the United States or any place subject to their
jurisdiction."
It is urged with force that this amendment did not
abolish slavery within the Indian tribes, as these slaves
were not "subject to the jurisdiction" of the United States,
but were subject to the jurisdiction of a semi-independent
nation, with which the United States negotiated through
treaty, and to which their statute law or judicial
jurisdiction and control was not extended.
Plaintiff was born within the territorial jurisdiction of
the United States; also within another subsidiary
semi-independent jurisdiction. He was born a slave
within a nation whose members were not citizens [**9]
of the United States and did not become citizens; a nation
which was recognized in many political respects as
independent. Plaintiff's master was not born a citizen,
and did not become a citizen. Could the slave so born
within that territory and within the control of the master's
tribe, without action affirmative on his part, and while
remaining with his former master, become a citizen of the
United States when the master could not? The Indian, the
master, owed primary allegiance to his own tribal form of
government, and this allegiance has been steadily
recognized by the United States Government, which has,
until within but few years, dealt with the Indian tribes by
treaty and not by statute.
The less is included within the greater, and the slave
remaining with the master in the Indian Territory within
tribal jurisdiction does not achieve citizenship in the
United States by emancipation alone.
While the Fourteenth amendment to the Constitution
was under consideration, the treaty of 1866 was
negotiated. This permitted the Chickasaws to retain the
freedmen within the tribe as members of the tribe or not
to do so. No such course could have been pursued were
the freedmen citizens [**10] of the United States.
Further, in 1894, Congress, ratifying the action of the
Chickasaws, recognized these freedmen as Chickasaws.
We nowhere find the freedmen recognized in treaty
or in statute as citizens of the United States. In questions
of this nature the course of the political department of the
Government is to be received by the courts with very
high respect.
We conclude that this plaintiff was at the date of the
alleged depredation what he is in fact and what he has
been colloquially termed, a "Chickasaw freedman,"
entitled to the rights [*446] of the legally recognized
class to which he belongs, and that he was not at that date
a citizen of the United States.
In re YOUNG
198 F. 715, *716; 1912 U.S. Dist. LEXIS 1358, **3
In the former ruling, the court approved and adopted
as its own the reasoning in the decision of In re Knight,
171 Fed. 299, which authority is reinforced by In re Ah
Yup, 1 Fed. Cas. 223, No. 104, refusing the right of
naturalization to a Chinaman, which case was decided
prior to the act of May 6, 1882, section 14 of which (22
Stat. at Large, 61, c. 126 [U.S. Comp. St. 1901, p. 1333])
expressly prohibits the admission of Chinese to
citizenship; Fong Yue Ting v. United States, 149 U.S.
698, 716, 13 Sup. Ct. 1016, 37 L. Ed. 905; In re Camille
(C.C.) 6 Fed. 256, in which latter case the son of a white
Canadian father and an Indian mother was denied the
right of naturalization; In re Saito (C.C.) 62 Fed. 126,
rejecting the application of a Japanese; In re Kanaka
Nian, 6 Utah, 259, 21 Pac. 993, 4 L.R.A. 726, to the same
effect in the case of a Hawaiian; Elk v. Wilkins, 112 U.S.
94, 5 Sup. Ct. 41, 28 L. Ed. 643.
It is just as certain that, whether we consider the
Japanese as of [*717] the Mongolian race, or the Malay
race, they are not included in what are commonly
understood as "white persons." In the abstractions o
higher mathematics, it may be plausibly said that the hal
of infinity is equal to the whole of infinity; but in the case
of such a concrete thing as the person of a human being i
cannot be said that one [**4] who is half white and hal
brown or yellow is a white person, as commonly
understood. In Louisiana, a person was deemed white i
the African blood did not exceed one-eighth. The same
was true in the Colonial Code Noir of France, 2 Kent, 72
note "b." In Ohio, if there was more white blood than
black or red, the person was considered white; but, if the
colored blood was equal, the person was not white
Jeffries v. Ankeny, 11 Ohio, 372; Gray v. State, 4 Ohio
354. In Virginia and Kentucky the dividing line wa
generally recognized as the quarter-blood. Dean v
Commonwealth, 45 Va. 541; Gentry v. McMinnis, 3
Dana (Ky.) 382; 30 Encyc. Law, 2d Add., 517.
determine the exact status of the petitioner. All that is
necessary is to determine whether he is a "white person"
within the meaning of the law.
UNITED STATES v. HILLS
District Court, W.D. New York
124 F. 831; 1903 U.S. Dist. LEXIS 178
in rem jurisdiction asserts that Chinese are property, coolies, slaves
THE SEMINOLE NATION v. THE UNITED STATES
No. L-89
UNITED STATES COURT OF CLAIMS
78 Ct. Cl. 455; 1933 U.S. Ct. Cl. LEXIS 216
It did not require a
treaty to make an outsider a citizen of the tribe. This
could be and was accomplished by the laws of the tribe's
government.
restricted in scope and effect to the technical meaning of
membership and citizenship in an Indian tribe, and was so
mutually understood, is governed in principle by the
decision of this court in the Whitmire case, supra, and the
decision of the Supreme Court in Journeycake v. United
States, 155 U.S. 196.
LUCAS v. UNITED STATES.
No. 692.
SUPREME COURT OF THE UNITED STATES
163 U.S. 612; 16 S. Ct. 1168; 41 L. Ed. 282; 1896 U.S. LEXIS 2291
As the accused was a Choctaw Indian, as the killing
took place in the Indian Territory, and as Kemp was
alleged and conceded to be a negro, the question arises,
what was the legal presumption as to the latter's
citizenship? Is it to be presumed that he was a citizen of
the United States, or that he was a member and citizen of
the Choctaw tribe?
Ex parte SHAHID
205 F. 812, *; 1913 U.S. Dist. LEXIS 1605, **
1856 U.S. LEXIS 472, ***547; 19 HOW 393
Who is a free white person? And who is a person of
African nativity or of African descent? It has been
decided that the Chinese, Japanese, Malays, [**3] and
American Indians do not belong to the white race and are
therefore excluded. Furthermore, by express additional
statutory provisions the Chinese are expressly excluded.
This, however, leaves open the question: Suppose one of
these people had been born in Africa, would the children
of Chinese parents, for instance, or Japanese parents,
because born in Africa, be of African nativity?
Next, what is the meaning of African descent? The
Chinaman is not entitled to be admitted to citizenship, but
would a half-breed, the child of a negro and a Chinese, be
entitled to admission because by his mother's or his
father's side he was of African descent? Then what is the
limitation of Afican descent? For how many generations
would that continue? If the son of an African man by a
Chinese woman is entitled to admission by reason of
African descent, would the great-grandson of an African,
although one whose immediate ancestors were Chinese,
and who had lived in China, be entitled to admission by
reason of the infinitesimal portion of negro blood in him?
Then, what is white? What degree of colorization, if it be
referred to color, constitutes a white person as against a
colored person, [**4] and is the court to take the
responsibility by ocular inspection of determining the
shades of different colorization where the dividing line
comes between white and colored.
The statute as it stands is most uncertain, ambiguous,
and difficult both of construction and application, and all
that the court can do is to construe it under the test and
control of the legal rules for the construction of statutes.
There have been a number of decisions in which the
question has been treated, and the conclusions arrived at
in them are as unsatisfactory as they are varying, viz.: In
re Ah Yup, 5 Sawy. 155, Fed. Cas. No. 104, excluding
Mongolians; In re Camille, 6 Fed 256, excluding a
half-breed Indian and white; In re Gee Hop (D.C.)
[*814] 71 Fed. 274, excluding a Chinese; In re
Rodriguez (D.C.) 81 Fed. 337, admitting a Mexican; In re
Kumagui (D.C.) 163 Fed. 922, excluding a Japanese; In
re Knight (D.C.) 171 Fed. 299, excluding a half-breed
Mongolian and white; In re Najour (C.C.) 174 Fed. 735,
admitting a Syrian; In re Halladjian (C.C.) 174 Fed. 834,
admitting an Armenian; In re Mudarri (C.C.) 176 Fed.
465, admitting a Syrian; Bessho v. U.S., 178 Fed. 245,
101 C.C.A. 605, excluding a [**5] Japanese; In re Ellis
(D.C.) 179 Fed. 1002, admitting a Maronite; In re Balsara
(C.C.) 180 Fed. 294, admitting a Parsee.
To say that a very dark brown, almost black,
inhabitant of India is entitled to rank as a white person,
because of a possible or hypothetical infusion of white
blood 30 or 40 centuries old, and to exclude a Chinese or
Japanese, whose parent on one side was white, and who
thus possesses manifestly at least one-half European
blood, would seem highly inconsistent. If the matter
were placed, as some decisions would indicate, on
intellectual status and achievement, [**9] then the
Japanese and certain of the Chinese would be clearly
entitled to stand with many of the so-called white nations
and with the Parsee, the Brahmin, and the Persian, and far
above the negro races.
A. C. DE BACA ET AL. v. THE UNITED STATES AND THE NAVAJO INDIANS
Indian depredations, Nos. 3814, 3815
UNITED STATES COURT OF CLAIMS
37 Ct. Cl. 482; 1901 U.S. Ct. Cl. LEXIS 51
A recognition of a foreign government by the United
States can be made in four ways. "First, by treaty;
second, by passage of a law regulating commercial
intercourse between two powers; third, by sending a
diplomatic agent with usual credentials, or, lastly, by the
Executive receiving and accrediting a diplomatic
representative from the new government." (1 Whar. Inter
L. Dig., 531.)
The issue as to the rights of Texas to all of the territory
east of the Rio Grande was never raised by the United
States Government, either by Congress or the Executive
Individual citizens [**10] may have had different views
of the question, but this court will not nor can not notice
such adverse views or opinions. President Polk, February
12, 1847, assured the governor of Texas that the
establishment of the military or temporary government
over New Mexico upon the occupation of Santa Fe by
General Kearny "can never injuriously affect the right
which the President believes to be justly asserted by
Texas to the whole territory on this (east) side of the Rio
Grande, whenever the Mexican claim to it shall have
been extinguished by treaty." After the treaty of 1848 was
ratified, the State of Texas again (1849) asserted her right
to said territory and the establishment of her civil
authority over it. During the latter part of the
administration of President Polk, Mr. Marcy, Secretary of
State (1848), instructed that the military at Santa Fe
"should lend aid on proper occasions in sustaining" the
Texas authorities. President Taylor, in his message to the
Senate, January 30, 1850 (Mess., vol. 5, p. 30), indorsed
the views of his predecessor.
II. At the time of the depredation alleged in petition
No. 3814, to wit, July 10, 1849, by the defendant [**14]
Indians in the Territory of New Mexico, the claimant was
a citizen of the United States, he not having, pursuant to
article 8 of the treaty of 1848 (9 Stat. L., p. 922, 929),
declared his intention to retain the title and right of a
Mexican citizen within one year from the date of the
exchange of ratifications of said treaty.
claimants' counsel. That ground was that the claimants
decedent was born in 1809 in the Mexican province o
New [*490] Mexico, then within the limits of the
Louisiana purchase. It was contended that the place o
his birth was then territory of the United States, and tha
by virtue of his birth in such territory he was and eve
since has continued to be a citizen of the United States.
By the treaty thus made it will be noted that the
United States renounced or quitclaimed to Spain all thei
right and pretensions to the disputed territory -- that is to
say, the territory west of the Sabine River and south o
the northern line defined by the treaty, thence west to the
Rio Grande -- while Spain ceded to the United States al
her claims and pretensions to any territory east and north
of that line.
[*492] If we should assume that the United State
owned the controverted territory by virtue of their treaty
with France in 1803, and that by virtue thereof the
claimants' decedent at the time of his birth, in 1809
acquired citizenship in the United States in right of hi
parents under article 3 of that treaty, which entitled
inhabitants of the ceded [**19] territory to "be
incorporated in the Union of the United States and
admitted as soon as possible, according to the principle
of the Federal Constitution, to the enjoyment of all the
rights, advantages, and immunities of citizens of the
United States," the question would still remain open as to
said Sandoval's status after the treaty of 1819. But the
court can not assume that the disputed territory was
acquired by cession from France by the treaty of 1803
On the contrary, at least one provision of the treaty o
1819 seems to rebut such presumption.
The court can not regard these treaties as affecting or
changing the citizenship of any person dwelling within
the limits of the disputed territory. Spaniards continued to
be Spaniards and Americans continued to be Americans,
and their children were of the citizenship of their parents.
The court has no knowledge of any case where a like
claim has ever been made. The inhabitants of, say, the
town of Santa Fe were universally regarded as Spaniards,
or Mexicans, until the United States acquired that
territory by treaty. The treaty of Guadalupe-Hidalgo
recognized all of those inhabitants as Mexican citizens,
and made provision for their remaining such or becoming
citizens of the United States at [*493] their own
election. Expatriation and change of allegiance require
the action or assent of the individual, express or implied,
and must rest upon his voluntary act or upon some treaty
provision. A child of American citizens in Spain does
not become a Spaniard through accident of birth; and the
children of aliens born in the United States have an
election whether they will become citizens [**21] of the
United States or remain citizens of their parents' country.
On the same day the Senate ratified the treaty entered
into between the United States and the Navajo Indians,
September 9, 1849 (9 Stat. L., 974), whereby the Indians,
in Article III, acknowledged that by virtue of the treaty of
Guadalupe Hidalgo they were "placed under the
exclusive jurisdiction and protection" of the United
States, and they agreed that the trade and intercourse act
of 1834 "shall have the same force and efficiency, and
shall be as binding and as obligatory upon the said
Navajos, and executed in the same manner, [**27] as if
said laws had been passed for their sole benefit and
protection."
"We are also of opinion that the power to acquire
territory by treaty implies not only the power to govern
such territory, but to prescribe upon what terms the
United States will receive its inhabitants, and what their
status shall be in what Chief Justice Marshall termed the
'American Empire.' There seems to be no middle ground
between this position and the doctrine that if their
inhabitants do not become, immediately upon annexation,
citizens of the United States, their children thereafter
born, whether savages or civilized, are such, and entitled
to all the rights, privileges, and immunities of citizens. If
such be their status, the consequences will be extremely
serious. Indeed, it is doubtful if Congress would ever
assent [**32] to the annexation of territory upon the
condition that its inhabitants, however foreign they may
be to our habits, traditions, and modes of life, shall
become at once citizens of the United States. In all its
treaties hitherto the treaty-making power has made
special provision for this subject; in the cases of
Louisiana and Florida, by stipulating that 'the inhabitants
shall be incorporated into the Union of the United States
and admitted as soon as possible * * * to the enjoyment
of all the rights, advantages, and immunities of citizens of
the United States;' in the case of Mexico, that they should
'be [*499] incorporated into the Union, and be admitted
at the proper time (to be judged by the Congress of the
United States), to the enjoyment of all the rights of
citizens of the United States;' in the case of Alaska, that
the inhabitants who remained three years, 'with the
exception of uncivilized native tribes, shall be admitted to
the enjoyment of all the rights,' etc., and in the case of
Porto Rico and the Philippines, 'that the civil rights and
political status of the native inhabitants * * * shall be
determined by Congress.' In all these cases there is an
implied denial of [**33] the right of the inhabitants to
American citizenship until Congress by further action
shall signify its assent thereto."
The court, at page 286, further says:
"The executive and legislative departments of the
Government have for more than a century interpreted this
silence as precluding the idea that the Constitution
attached to these Territories as soon as acquired, and
unless such interpretation be manifestly contrary to the
letter or spirit of the Constitution, it should be followed
by the judicial department." (Cooley's Consti. Lim., secs.
81 to 85; Burrow-Giles Lithographic Co. v. Sarony, 111
U.S., 53, 57; Field v. Clark, 143 U.S., 491, 649.)
ELK v. WILKINS.
SUPREME COURT OF THE UNITED STATES
112 U.S. 94; 5 S. Ct. 41; 28 L. Ed. 643; 1884 U.S. LEXIS 1857
The petition, while it does not show of what Indian
tribe the plaintiff was a member, yet, by the allegations
that he "is [*99] an Indian, and was born within the
United States," and that "he had severed his tribal relation
to the Indian tribes," clearly implies that he was born a
member of one of the Indian tribes within the limits of
the United States, which still exists and is recognized as a
tribe by the government of the United States. Though the
plaintiff alleges that he "had fully and completely
surrendered himself to the jurisdiction of the United
States," he does not allege that the United States accepted
his surrender, or that he has ever been naturalized, or
taxed, or in any way recognized or treated as a citizen, by
the State or by the United States. Nor is it contended by
his counsel that there is any statute or treaty that makes
him a citizen.
The question then is, whether an Indian, born a
member of one of the Indian tribes within the United
States, is, merely by reason of his birth within the United
States, and of his afterwards voluntarily separating
himself from his tribe and taking up his residency among
white citizens, a citizen of the United States, within the
meaning of the first section of the Fourteenth
Amendment of the Constitution.
Chief Justice Taney, in the passage cited for the
plaintiff [*101] from his opinion in Scott v. Sandford,
19 How. 393, 404, [***646] did not affirm or imply that
either the Indian tribes, or individual members of those
tribes, had the right, beyond other foreigners, to become
citizens of their own will, without being naturalized by
the United States. His words were: "They" (the Indian
tribes) "may, without doubt, like the subjects of any
foreign government, be naturalized by the authority of
Congress, and become citizens of a State, and of the
United States; and if an individual should leave his nation
or tribe, and take up his abode among the white
population, he would be entitled to all the rights and
privileges which would belong to an emigrant from any
other foreign people." But an emigrant from any foreign
State cannot become a citizen of the United States
without a formal renunciation of his old allegiance, and
an acceptance by the United States of that renunciation
through such form of naturalization as may be required
by law.
Indians born within the territorial limits of the United
States, members of, and owing immediate allegiance to,
one of the Indian tribes (an alien, though dependent,
power), although in a geographical sense born in the
United States, are no more "born in the United States and
subject to the jurisdiction thereof," within the meaning of
the first section of the Fourteenth Amendment, than the
children of subjects of any foreign government born
within the domain of that government, or the children
born within the United States, of ambassadors or other
public ministers of foreign nations.
This view is confirmed by the second section of the
[HN3] Fourteenth Amendment, which provides that
"representatives shall be apportioned among [**46] the
several States according to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed." Slavery having been
abolished, and the persons formerly held as slaves made
citizens, this clause fixing the apportionment of
representatives has abrogated so much of the
corresponding clause of the original Constitution as
counted only three-fifths of such persons. But Indians
not taxed are still excluded from the count, for the reason
that they are not citizens. Their absolute exclusion from
the basis of representation, in which all other persons are
now included, is wholly inconsistent with their being
considered citizens.
It is also worthy of remark, that the language used,
about the same time, by the very Congress which framed
the Fourteenth Amendment, in the first section of the
Civil Rights Act of April 9, 1866, declaring who shall be
citizens of the United States, is [HN4] "all persons born
in the United States, and not subject to any foreign
power, excluding Indians not taxed." 14 Stat. 27; Rev.
Stat. § 1992.
Such Indians, then, not being citizens by birth, can
only become citizens in the second way mentioned in the
Fourteenth Amendment, by being "naturalized in the
United States," by or under some treaty or statute.
That treaty not only provided for the naturalization
of members [*104] of the Ottawa, Miami, Peoria, and
other tribes, and their families, upon their making
declaration, before the District Court of the United States,
or their intention to become citizens; 15 Stat. 517, 520,
521; but, after reciting that some of the Wyandotts, who
had become citizens under the treaty of 1855, were
"unfitted for the responsibilities of citizenship;" and
enacting that a register of the whole people of this tribe,
resident in Kansas or elsewhere, should be taken, under
the direction of the Secretary of the Interior, showing the
names of "all who declare their desire to be and remain
Indians and in a tribal condition," and of incompetents
and orphans as described in the treaty of 1855, and that
such persons, and those only, should thereafter constitute
the tribe; it provided that "no one who has heretofore
(now viz 48 USC 1931 Notes that CNMI TTPI citizens may retain their noncitizen nationality)
By the act of July 15, 1870, ch. 296, § 10, for
instance, it was provided that if at any time thereafter any
of the Winnebago Indians in the State of Minnesota
should desire to become citizens of the United States,
they should make application to the District Court of the
United States for the District of Minnesota, and in open
court make the same proof and take the same oath of
allegiance as is provided by law for the naturalization of
aliens, and should also make proof to the satisfaction of
the court that they were sufficiently intelligent and
prudent to control their affairs and interests, that they had
adopted the habits of civilized life, and had for at least
five years before been able to support themselves and
their families; and thereupon [*105] they should be
declared by the court to be citizens of the United States,
the declaration entered of record, and a certificate thereof
given to the applicant; and the Secretary of the Interior,
upon presentation of that certificate, might issue to them
patents in fee simple, with power of alienation, of the
lands already held by them in severalty, and might cause
to be paid to them their proportion of the money and
effects of the tribe held in trust under any treaty or law of
(see expeditious naturalization for noncitizen nationals upon residence in the US)
"Of course we cannot declare the wild Indians who
do not recognize the government of the United States,
who are not subject to our laws, with whom we make
treaties, who have their own laws, who have their own
regulations, whom we do not intend to interfere with or
punish for the commission of crimes one upon the other,
to be the subjects of the United States in the sense of
being citizens. They must be excepted. The Constitution
"By the first section of the bill all persons born in the
United States, and not subject to any foreign power,
excluding Indians not taxed, are declared to be citizens of
the United States. This provision comprehends the
Chinese of the Pacific States, Indians subject to taxation,
the people called Gypsies, as well as the entire race
designated as blacks, persons of color, Negroes,
mulattoes, and persons of African blood. Every
individual of those races, born in the United States, is, by
the bill, made a citizen of the United States."
the Fourteenth Amendment does not require the
citizenship granted by it to be evidenced by the record of
any court, or of any department of the government. Such
citizenship passes to the person, of whatever race, who is
embraced by its provisions, leaving the fact of citizenship
to be determined, when it shall become necessary to do
so in the course of legal inquiry, in the same way that
questions as to one's nativity, domicile, or residence are
determined.
When the Fourteenth Amendment was pending in the
Senate of the United States, Mr. Doolittle moved to insert
after the words "subject to the jurisdiction thereof," the
words "excluding Indians not taxed." His avowed object
in so amending the measure was to exclude, beyond all
question, from the proposed grant of citizenship, tribal
Indians who -- since they were, in a sense, subject to the
jurisdiction of the United States -- might be regarded as
embraced in the grant. The proposition was opposed by
Mr. Trumbull and other friends of the proposed
constitutional amendment, upon the ground that the
words "Indians not taxed" might be misconstrued, and,
also, because those words were unnecessary, in that the
phrase "subject to the jurisdiction thereof" embraced only
those who were subject to the complete jurisdiction of the
United States, which could not be properly said of
Indians in tribal relations. But it was distinctly
announced by the friends of the measure that they
intended to include in the grant of national citizenship
Indians who were within the jurisdiction of the States,
and subject to their laws, because such Indians would be
completely under the jurisdiction of the United States.
Said Mr. Trumbull: "It is only those who come
completely within our jurisdiction, who are subject to our
In this connection we refer to an elaborate report
made by Mr. Carpenter, to the Senate of the United
States, in behalf of its judiciary committee, on the 14th of
December, 1870. The report was made in obedience to
an instruction to inquire as to the effect of the Fourteenth
Amendment upon the treaties which the United States
had with various Indian tribes of the country. The report
says: "For these reasons your committee do not hesitate
to say that the Indian tribes within the limits of the United
States, and the individuals, members of such tribes, while
they adhere to and form a part of the tribes to which they
belong, are not, within the meaning of the [*119]
Fourteenth Amendment, 'subject to the jurisdiction' of the
United States; and, therefore, that such Indians have not
become citizens of the United States by virtue of that
amendment; and, if your committee are correct in this
conclusion, it follows that the treaties heretofore made
between the United States and the Indian tribes are not
annulled by that amendment." The report closes with this
significant language: "It is pertinent to say, in concluding
this report, that treaty relations can properly exist with
Indian tribes or nations only, and that, when the members
of any Indian tribe are scattered, they are merged in the
mass of our people, and become equally subject to the
jurisdiction of the United States."
Neither are the
aboriginal inhabitants of the country citizens, so long as
they preserve their tribal relations and recognize the
headship of their chiefs, notwithstanding that, as against
the action of our own people, they are under the
protection of the laws, and may be said to owe a qualified
allegiance to the government. When living within
territory over which the laws, either State or Territorial,
are extended, they are protected by, and, at the same time,
held amenable [**55] to, those laws in all their
intercourse with the body politic, and with the individuals
composing it; but they are also, as a quasi-foreign people,
regarded as being under the direction and tutelage of the
general government, and subjected to peculiar regulations
as dependent communities. They are 'subject to the
jurisdiction' of the United States only in a much qualified
sense; and it would be obviously inconsistent with the
semi-independent character of such a tribe, and with the
obedience they are expected to render to their tribal head,
that they should be vested with the complete rights, or, on
the other [*120] hand, subjected to the full
responsibilities of American citizens. It would not, for a
moment, be contended that such was the effect of this
amendment.
Born, therefore, in the territory under the dominion,
and within the jurisdictional limits of the United States,
plaintiff has acquired, as was his undoubted right, a
residence in one of the States, with her consent, and is
subject to taxation and to all other burdens imposed by
her upon residents of every race. If he did not acquire
national citizenship on abandoning his tribe and
becoming, by residence in one of the States, subject to the
complete jurisdiction of the United States, then the
Fourteenth Amendment has wholly failed to accomplish,
in respect of the Indian race, what, we think, was
intended by it; and there is still in this country a despised
and rejected class of persons, with no nationality
whatever; who, born in our territory, owing no allegiance
to any foreign power, and subject, as residents of the
States, to all the burdens of government, [*123] are yet
not members of any political community nor entitled to
any of the rights, privileges, or immunities of citizens of
the United States.
BRADER v. JAMES, FORMERLY REEVES.
246 U.S. 88, *; 38 S. Ct. 285, **;
62 L. Ed. 591, ***; 1918 U.S. LEXIS 1523
By the gift of citizenship the foreign or dependent status
of the members of the nation or tribe was changed in all
particulars except as to such choses in action, annuities
and other reserve properties as were originally retained
by the United States in the different acts of Congress
leading up to and preceding the gift of citizenship.
Cherokee Nation v. Hitchcock, 187 U.S. 294; Tiger v.
Western Investment Co., supra., United States v. Bartlett,
235 U.S. 72.
Notwithstanding
the grant of citizenship and the removal of restrictions,
the duty of protection which the Nation owes to
dependent Indians is not discharged and the national
honor which has been pledged to the fulfillment of that
obligation remains. Even the grant of citizenship to tribal
Indians may be, as it has been in a measure, retracted.
United States v. Pelican, 232 U.S. 442, 450-451. The
power to deal with their affairs is not to be measured by a
single act of hasty legislation. United States v. Celestine,
215 U.S. 278, 290-291. The national interest in them is
not to be expressed in terms of propety. Heckman v.
United States, 224 U.S. 413, 437. So long as they are
maintained as wards of the Nation -- and it is not to be
denied that the full bloods of the "Five Civilized Tribes"
are still so maintained -- the power to adopt any measure
which in the judgment of Congress is needful for their
protection is "a continuing power of which Congress
could not divest itself:" United States v. Nice, 241 U.S.
591, 600.
WINTON, ADMINISTRATOR OF WINTON, ET AL. v. AMOS AND OTHERS,
KNOWN AS THE MISSISSIPPI CHOCTAWS; BOUNDS, ATTORNEY-IN-FACT
FOR BOUNDS, v. SAME; LONDON v. SAME; FIELD ET AL. v. SAME;
BECKHAM v. SAME; VERNON v. SAME; HOWE, EXECUTRIX OF HOWE, v.
SAME.
Nos. 6-12
SUPREME COURT OF THE UNITED STATES
255 U.S. 373; 41 S. Ct. 342; 65 L. Ed. 684; 1921 U.S. LEXIS 1770
UNITED STATES v. ELM
Case No. 15,048
District Court, N.D. New York
1877 U.S. Dist. LEXIS 44; 25 F. Cas. 1006; 23 Int. Rev. Rec. 419
That motion has been
made, and the question is now presented whether or not
the Oneida Indians are citizens of the United States, and,
as such, entitled to vote.
allegiance, and are equally bound with citizens to obey all
general laws for the maintenance of peace and order
which do not relate specially to our own citizens, and
they are amendable to the ordinary tribunals of the
country. But there are classes of residents who, though
they may be born here, are not subject to the exercise of
those prerogatives of sovereignty which a government
has the right [*3] to enforce over its own citizens, and
over them alone, and it is to these that the language of the
amendment applies. Within this sense, those persons
who, though born here, are born within the allegiance of a
foreign sovereign, or of another government, are not
subject to the jurisdiction of the United States. The
children of ambassadors, though in fact born here, are, in
the theory of the law, born within the allegiance of the
foreign power the parent represents.
Indians who maintain their tribal relations are the
subjects of independent governments, and, as such, not in
the jurisdiction of the United States, within the meaning
of the amendment, because the Indian nations have
always been regarded as distinct political communities,
between which and our government certain international
relations were to be maintained. These relations are
established by treaties to the same extent as with foreign
powers. They are treated as [**1007] sovereign communities, possessing and exercising the right of free
deliberation and action, but, in consideration of
protection, owing a qualified subjection to the United
States.
If defendant's tribe continued to maintain its tribal
integrity, [*4] and he continued to recognize his tribal
relations, his status as a citizen would not be affected by
the fourteenth amendment; but such is not his case. His
meaning of the fourteenth amendment. The civil rights
bill was passed by the same congress which adopted the
resolution to submit the fourteenth amendment to the
legislatures of the several states. Both the amendment
and the civil rights bill dealt with the question of
citizenship, and in the declaration defining the class of
persons to whom it was extended language almost
identical was used in each. While, primarily, these
measures, originated for the protection of natives of
African descent, who, by the decision in the case of Scott
v. Sandford, 19 How. [60 U.S.] 393, were held not to be
citizens of the United States, within the meaning of the
constitution, it is not to be doubted that they were
intended to confer the rights of citizenship upon such
others as, owing to the peculiar condition of our national
development, were not citizens in legal contemplation,
though by birth and by allegiance they were or might
become entitled to recognition as such.
[not citizens in legal contemplation, ie subjects, resortissants... noncitizen nationals]
become so far integrated with the general body of citizens
that [*7] the states in which they reside have subjected
them to the duties of citizens and enforced over them the
prerogatives of sovereignty. Prior to the adoption of the
fourteenth amendment, many of the Indian tribes had
become disintegrated, and the members had abandoned
their tribal relations, and were distributed among and
assimilated with the general body of citizens of the state
in which they lived, conforming to the same usages, and
their rights of person and property regulated by the same
laws, which controlled the rest of the inhabitants of the
state. They were natives by birth, and were not aliens in
allegiance. Their status had been defined, sometimes, as
that of alien residents; sometimes, as that of domestic
subjects. In the case of Scott v. Sandford, 19 How. [60
U.S.] 404, Chief Justice Taney said: "If an individual
Indian should leave his tribe, and take up his abode
among the white population, he would be entitled to all
the rights and privileges which would belong to an
emigrant from any other foreign people." Accepting this
as a correct statement of the law, it would follow that
such an Indian was not, and in the absence of special
legislation could not become, a citizen.He [*8] could not
be naturalized, because the naturalization laws only apply
to persons born out of the United States. The remarks of
Chief Justice Taney were applicable to that class of
Indians who had left their tribes, and thus abandoned
their tribal relations; but instances were extant, in the
history of the Indians tribes, where the tribual
organization had become defunct, and where the
individual Indians had so far been recognized as citizens
of the state that they had been authorized to acquire and
hold real estate, and subjected to taxation and to the civil
jurisdiction of the courts. It had never been
authoritatively decided whether or not such Indians were
citizens.
[compare the Arikawa v Acheson and other expatriation for voting in occupied "Japan (which in 1950 included Formosa)"]
They are natives, they owe no allegiance other than to the
government of the United States, and they have been
placed by the state upon an equality with its citizens
respecting important rights denied to aliens. As the state
and the United States can impose upon them all the duties
and obligations of subjects, they are entitled to the
corresponding rights which spring from relation. These
are the rights which a government owes to its citizens.
For these reasons, my conclusion is the defendant
was entitled to vote, and was improperly convicted.The
motion for a new trial is granted.
43. Meaning of subject to the jurisdiction and territoriality: http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188788&entity=FRUS.FRUS188788.p0927&q1=extraterritorial&q2=habeas
The position: that the penal laws of a country have no extraterritorial
force was-taken by the Department of State, under the advice of the
Attorney-General, in the case of Carl Vogt, in 1873. The facts were
thatoVogt' a Prussian subject, charged with the crimes of murder, arson,
and robbery, committed in Brussels, Belgium, fled to the Uiited States,
from which his extradition was demanded by the Government of Ger-
many,: under the provisions of the treaty between the United States and
Prussia, of June 16, 1852, by which the contracting parties engaged to
deliver up to each other fugitives from justice, charged with certain
crimes, includinp those above mentioned, committed within the jurisdic-
tion of either party.
Having been arrested, Vogt was brought on a writ of habeas corpus
before Judge Blatchford, sitting in the circuit court of the United
States at New York, who held that as the German 41mpire made provis-
ion by law for the punighment of its subjects for certain offenses com-
mitted outside of the teri~tory, among which were those specified in the
requisition, the prisoner was liable to, extradition. The examination
then. proceeded before the commissioner, and Vogt was committed for
surrender.
The case was then referred by Mr. Bancroft Davis, Acting Secretary
of State, to the Attorney-General, who, in an opinion dated July 21,
1873, held that although by the law of Germany the accused, a German
subject, might be justiciable in that country, yet under the treaty the
locus delicti was material, and unless it was within the jurisdictiowtof
the
demanding Government, the provisions of the treaty did not apply.
To affirm [said the Attorney-General] that the jurisdiction of Germany,
by v irtue
of its own laws for the punishment of crimes, extends over the territory
of Belgium,
is equivalent to holhjng that the same jurisdictioa extends to France,
Great Britain,
and the United Sta/, and, indeed, to every nation and country of the
world. ,
*Germany has an un6doubted right to punish her sub)jects, if she chooses,
for crimes
committed in Belgium orWthe United States, but m would not be proper,
thercfire,
to say that Belgiumn and the United States are within herjurisdiction
but it would
be proper t~o say that she has made provision to punish her subjects for
crimes come-
rnitted without as well as within her jurisdiction. * * * All nations
have juris-
diction beyond their physical boundaries. Vessels upon the high sea~s
and ships of
bar everywhere are within the jurisdictsiontoftenions to which thfey belong.
Lim-
itedwjurisdiction by one nation upon the territory of another is sometimeshcede4
by
treaty, as appears from the treaties between the luni-ted Stts, Turkey,
China, Siam,
and other powers. Constructive jurisdiction mao y possiby eis t in spochial
cacb arlis-m
ing in barbarous cyrntries or uninhabited places, so tbat effect can be
given to the
word "jurisdictiobyn as meaning more than territory, without heold"ing
that Germany
adhas jurisdiction mAye crimes committed in Paris, LondJon, or washinogon.
To recognize the claim of Germany in this case wouldestabish b a precedent
that mighte
re extraterritorial libelous blasphemy http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS188788&entity=FRUS.FRUS188788.p0939&q1=extraterritorial&q2=habeas
United States Department of State Foreign relations of the United States, 1949. The Far East: China: Volume IX (1949)
Policy of the United States toward Formosa (Taiwan): concern of the United States regarding possible conquest by Chinese communists, pp. 261-471
Page 454
6 (a). US military occupation: Generalissimo, generais and topmost
officials could be expected to require face-saving formula with emphasis
on support for eventual victorious return to mainland before accepting
US military occupation. An unnegotiated occupation could expect
some initial Chinese military opposition. However, US military con-
trol through advisors with authority is entirely feasible at this point
and has been suggested by Chinese officials. Many highest Chinese
officials have repeatedly requested maximum US military cooperation,
even suggesting military condominium.
Over million Chinese civilians here look hopefully to temporary US
take-over to save selves and what they have salvaged from mainland.
Mass of Taiwanese hate Kmt, fear Communists and would welcome
US military occupation. For months past there have been recurring
hopeful popular rumors that SCAP would take over, as relief from
Kmt and step toward independence. More realistic ones have suggested
CKS Gimo on status of Formosa, admits not foreign territory to US
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&am...
United States Department of State / Foreign relations of the United States, 1950. East Asia and the Pacific
Volume VI (1950)
The China area, pp. 256-689 PDF (175.7 MB)
________________________________________
Page 373
minutes. Present also ,were
Mme. Chiang, Admiral Kwei and Ho Shih-li. Shen Chang-huan~g
interpreted.
Generalissimo showed real pleasure at Admiral Struble's presence
in Formosa1I and in my call. Was interested in Korean developments
and in strength of Seventh Fleet in Formosa area.
Discussed briefly question of liaison and stated had ordered Chou
Chih-jou and Chinese Navy and CAF give full cooperation (which
Chou and Kwei have done). Brought up question of reconnaissance of
Chinese Conununist coastal areas and was assured by Admiral Struble
that such reconnaissance essential to defense and not objected to.
Generalissimo warned against surprise air attack on US vessels and
predicted that Communists still intended attack, and would have to do
so withlin next 40 days, attack probably at earlier date within this
period rather than later; disagree with Admiral Cooke2 who believed
Communists abandoned invasion plans; Communist preparations for
attack completed; Chinese Communists would attack even though they
knew they could not win. Nationalists had suffered many defeats in
past but learned many lessons.
Admiral Struble indicated need and desire return Formosa near
future in order firm up liaison details. Generalissimo recalled that he
took over Formosa as Allied Commander of Chinese theater pending
peace -treaty while General MacArthur took over Japan and other
areas ,as SCAP; now Chinese government was here, but he hoped
despite this fact Struble would not feel he coming to foreign territory
in visiting Formosa. He stated he has special regard for and real
friendship with each US naval commander in Far East; admired Navy
particularly because they always willing come to help of friends in
need.
Call of 40 minutes on Chen Cheng passed in exchange of pleasantries
only.
'Vice Adm. Arthur D. Struble was Commander of the United States Seventh
Fleet.
'Adm. Charles M. Cooke, U.S. Navy (ret.), former Commander of the Seventh
Fleet, was in Formosa in a private capacity; see footnote 4 to telegram 181,
August 3, from Taipei, p3. 4'13.
Struble declared in private that General MacArthur wishes visit
Formosa himself but unable take time. Also said had determined could
not help Nationalists defend islands off mainland coast,3 but could
not place obstacles in way of Nationalists short of directive against
Nationalist operations against mainland. Hoped to establish general
zones of responsibility relative to ,Formosa, giving Nationalists prime
responsibility for sea area close around island while assuming main
role himself in bulk of waters between Formosa and mainland.
Struble spent night with Admiral Cooke, who also took him to con-
ference with Admiral Kwei this morning.
STRONG
' In his telegram C--57148, July 3, to the Department
a. "If we wrote our own resolution, Mr. Dulles would prefer to spell out more clearly the interests of the Formosan people, but we simply could not do this and get the British to go along. They would not cosponsor a resolution which appeared to suggest that the independence of the people of Formosa should take priority over the Cairo Declaration." (Page 562)
b. "It was important to maintain good relations with the Nationalist. .
Mr. Dulles said that if there were a choice today, he would feel an independent trusteeship for Formosa was the best solution, but at this stage we could not commit ourselves definitely to that solution. He thought that this resolution would be interpreted in some quarters as an attempt to restore Formosa to the Communist Chinese." (Page 570)
c. "Mr. Dulles recalled that the British resolution had started out with the statement that whereas the population of Formosa was predominently Chinese, and whereas Formosa was traditionally Chinese territory, etc., which language would be even more difficult. ..., he then believed we would wish to rephrase this resolution to some extent." (Pages 570-571)
"Mr. Dulles said he could provide one answer to this question, but he was not sure that his answer would have the 'weight of authority'... He personally had in mind several objectives for our action in Formosa.
First, we should effectively neutralize the island;
second, we should consider the development of some measure of local autonomy for the people of Formosa, who had always been in a constant state of unrest and oppression, no matter who rules Formosa.
In the third place, there should not be any abrupt change in trade relations between Formosa and Japan, where there were two highly complementary economies.
These three things, he believed, the commission would have to take into account.". (Page 560)
"There should be negotiated a mutual security treaty with the China Ts covering Formosa and the Pescadores, but not the offshore islands. In this connection, it may be noted that Japan never ceded sovereignty over Formosa and the Pescadores to China. Japan renounced its own sovereignty but left the future title undefined. Thus the United States as principal victor of Japan has an unsatisfied interest in these former Japanese islands." (Page 811)
In reply to the USCA DC Cir (08-5780 oral argument)Court’s question, “THE COURT: What is the Government's position about status of the San Francisco Peace Treaty, particularly the language that United States is the principal occupying power? Is that good law?”, in oral argument, Counsel for the US falsely stated: “ MS. PATTERSON: I believe the treaty is in effect. We have not taken a position on whether or not the United States is, in fact, the principal occupying, I'm sorry, the United States has not --let me be clear. The United States is not the principal occupying power over Taiwan.”
THE COURT: Are there any other examples, or is that sufficient?
MS. PATTERSON: I think that's sufficient, YourHonor. Again we haven't offered up an interpretation of the San Francisco Peace Treaty because we don't think it's relevant here. What plaintiffs are arguing is that the San Francisco Peace Treaty makes the United States the principal occupying power and then they take in inferential leap to say that means that the United States is the de jure sovereign and then there's another leap to de jure sovereignty means that they are nationalists.
THE COURT: What does that language mean though? I mean it means something.
MS. PATTERSON: The principal occupying power?
THE COURT: Yes, right.
MS. PATTERSON: I believe that refers to the fact that at the time the United States signed that treaty, it was the principal occupying power of Japan. I'm a little hesitant to offer a definitive, the United States definitive construction of that treaty because again, we just don't think it's relevant here. Plaintiffs are claiming that they have rights that stem not simply under that treaty, but from the fact that that treaty makes the United States the de jure sovereign over Taiwan. And the United States has made it very, very clear that whoever the de jure sovereign of Taiwan is, it is not the United States. Moreover, all of plaintiffs' claims are based – [Petitioners are claiming the treaty recognizes their rights under US Insular Case and Constitutional law and the UN Charter as peoples ceded in trust to the US and under her protection as wards pending self-determination, owing their permanent allegiance to the US]
THE COURT: What's different here is if the language of the treaty supports what counsel said. If, in fact, the language principal occupying power means that the United States is the de jure sovereign, you're in trouble.
MS. PATTERSON: Well -
THE COURT: You're in trouble.
MS. PATTERSON: Let me offer up the United States' position that that is not what that treaty means. Whatever else it may mean, it does not mean that the United States is the de jure sovereign over Taiwan and I think in resolving this question, this Court should look to perform that discriminating analysis of the particular question posed here. And the particular question posed here is not whether or not the United States is the principal occupying power, but whether or not plaintiffs are nationals of the United States and further whether or not the United States is the de jure sovereign over Taiwan, and on both of those questions, plaintiffs' claims fail.
[the Court should find that the US has conceded the status of Principal Occupying Force over Formosa, or that Ms. Patterson has misled the Court, warranting the writ of error relief here, or note her obfuscation of the Treaty and Court’s Principal Occupying Force with the lower case administering authorities in situ as a principal occupying force (alter ego of the US)]
08-5780
Once the Executive determines Taiwan's sovereign, we can decide
Appellants' resulting status and concomitant rights expeditiously.
Baker, 369 U.S. at 212 ("[T]he judiciary ordinarily follows the
executive as to which nation has sovereignty over disputed territory,
once sovereignty over an area is politically determined and declared,
courts may examine the resulting status and decide independently
whether a statute applies to that area."). [POTUS and SOS have said that the SFPT and MDT clearly establishes that the US is the sovereign over Formosa, the MDT remains alive in spite of Goldwater v Carter because Palau has not determined to terminate the MDT obligations of the US which Palau acceded to on independence and which remained inchoate pending her self-determination, now Palau has ceded her international defense obligations, including to defend Formosa under the MDT, to the US which remains bound to discharge for Palau her duties to Formosa under the MDT]
True enough. However, under the interpretation of the
political departments to whom we must defer in such matters, Pearcy v.
Stranahan, 205 U.S. 257, 265 (1907) (deferring to "the interpretation
which the political departments have put upon [a] treaty" when
resolving a question of sovereignty), it remains unknown whether, by
failing to designate a sovereign but listing the United States as the
"principal occupying power," the SFPT created any kind of sovereignty
in the first place. [But see the FRUS extensive documentation wherein the POTUS and SOS assert actual present independent control in the US over the matter of the disposition of Formosa, the sine qua non of sovereignty, and explicitly stated in Article 4(b) of the SFPT. This remained “unknown” because the US failed to apprise the Court of this extensive and important evidence affecting the US nationality claims under the 14th amendment and Insular Cases and UN Charter for ten million wards of the US]
We do not dictate to the Executive what governments serve as the supreme political
authorities of foreign lands, Jones, 137 U.S. at 212; this rule
applies a fortiori to determinations of U.S. sovereignty. [ BUT see Matter of Cantu, Val Monte v INS, Rabang v INS, Rabang v Boyd, Dred Scott v Sandford, Worcester v Georgia, Arikawa v Acheson, Wong Kim Ark, Sabang v Powell, Kozminski v US, all involve courts determining the extent of the 14th amendment meaning of within the United States or the 13th amendment meaning of subject to the jurisdiction of the United States, also Article III reposes original jurisdiction in the Court over boundary disputes among the states]
As counsel for
the Government aptly put it at oral argument, the gravamen of the
Court's decision centered not on the de jure reach of the
Constitution, but on the limitations that adhere to the United States'
actual exercise of power over non-citizens detained in a foreign
territory. Appellants do not assert, nor could they, that the United
States exercises actual control over the people on Taiwan. [Now appellants can show actual persistent pervasive de facto and de jure control of the US over Formosa]
Congress, not a court, declared the Filipino population was "entitled
to the protection of the United States" based on the United States'
sovereignty over the Philippines. See Rabang v. Boyd, 353 U.S. 427,
429 (1957).
[But too Congress passed the Defense of Formosa Act and ratified the MDT to replace the EO and passed the TRA... all evincing US de jure authority to do so]
US courts which considered permanent allegiance claims have done so only for aliens admitted for lawful permanent residence to the US... and have held they are not statutory noncitizen nationals... these cases are inapposite authority to the 14th amendment claims to US noncitizen nationality of the petitioners who the government cannot show to be aliens (Petitioners are not subjects of any foreign sovereign, and the US cannot show that Petitioners are indeed subjects of any foreign sovereign, see Haruko v Acheson, Arikawa v Acheson which state that Formosa (included within de jure Japan) prior to the Japanese Peace Treaty was not foreign to the US).
THE COURT: Can you cite me any examples in history where the United States has been the principal occupying force of a territory and the residents of that territory were entitled to passports from the United States or other rights. ( native Americans like Hampa at Odessa were issued letter of protection in lieu of a passport because the US occupied their territories even though they were not citizens of the US under the 14th amendment, so too in matter of passport application of Nespar Humper or Bended Moccasis, and conquered territories before incorporation into the US such as California, New Mexico, Georgia all issued passports through their secretaries of state or by the US for residents therein, American Samoa, Puerto Rico, the US Virgin Islands, Guam, the TTPI before the UN trusteeship agreement was signed and the mandated areas of Japan were US liberated areas under military government for the US (same as the Formosa liberated area prior to the SFPT cession in trust to the US which Article 4b recognized had the ultimate powers of disposition thereover, and which Japan is stated as recognizing, meaning Japan knows they are transferring the power of disposition of Formosa to the US by Article 4b of the SFPT and which the administering authorities on Formosa are subject to under Article 4a and by virtue of the US as Principal Occupying Force) )
THE COURT: I guess my specific question is are you focusing on this idea of permanent allegiance to the United States which courts have generally rejected or are you making a different argument? (here Camp was not directly responsive)
THE COURT: If the United States exercises no sovereignty over Taiwan, do your clients have any claims, any rights?
MR. CAMP: If they control it. For example, in Cuba, in Guantanamo Bay, the U.S. controls Guantanamo Bay. I don't know if that means they have sovereignty or not, but they control it and they have in essence, I would consider it to be de facto sovereignty because of their control. And the control---
THE COURT: So does the United States control Taiwan?
MR. CAMP: They don't control it. Our position is they have sovereignty de jure (phonetic sp.) as a matter of law under the San Francisco Peace Treaty because they are the principal occupier. [here Camp wrongly conceded the Patterson fraud on the Court, so Petitioners were indeed prejudiced by the Patterson fraud, which in itself was a Bivens tort against the native Formosans predicated on the white racist conspiracy of the government against persons of color which began with slavery and Dred Scott saying blacks were TOO dark to be citizens, but were instead noncitizen nationals, and Worcester v Georgia and Elg v Wilkins saying that native peoples were TOO red to be citizens when they were conquered by the US in territories yet incorporated into the Union and were not citizens but noncitizen nationals under the Constitution, or Barber v Gonzalez saying the Puerto Ricans who were denied by the political branches their US nationality were TOO brown to be citizens, or the Chinese Exclusion Cases who continue to this day through exclusion of the native Formosans because of the color of their eyes, hair, skin, and former status of enslavement to the Japanese, in violation of their 13th amendment right to be free from these badges and incidents of slavery and involuntary servitude in political purgatory and real living hell where the assertion of their rights under our Constitution results in facing charges of treason and a death penalty and life imprisonment with no showing under the ROC statute needed that the land belongs to the ROC or that the treason was violent or that the traitors owe allegiance to that decrepit fascist regime ]
THE COURT: Does the Republic of China issue passports to its citizens?
(here Camp did not argue that the petitioners are not citizens of the ROC… the Treaty of Taipei drafted and imposed by the US on the ROC and Japan deems the native Formosans to be nationals only for the purpose of the Treaty and not with respect to the US… the ROC cannot produce any law which lawfully establishes ROC nationality over native Formosans predicated on jus soli principles of nationality… moreover even the US issues passports to noncitizens, so passports are not necessarily inicia of citizenship per se, many countries issue refugee passports, stateless person passports, or alien passports, and the US issues noncitizen national passports)
THE COURT: The Executive has taken the position that the United States does not have sovereignty or control over Taiwan.
MR. CAMP: It hasn't actually done that. It has basically said we are not changing -
THE COURT: So all the government actors in Taiwan right now are agents of the United States?
MR. CAMP: The Republic of China is holding Taiwan basically in trust. [they are the US, not agents thereof, The Republic of China was defeated in 1949 and lost all its national territory as its own exile Grand Justices Constitutional Court Interpretation No. 85 states... it is a government in exile (see Cheng Fu Sheng v Rogers, and see Lin v US 08-5780)… the ROC does not hold Taiwan… as ROC Foreign Minister Yeh is reported by Congress to have told the Legislative Yuan, even if the ROC wanted to hold Formosa it could not because it is no longer a sovereign state with the capacity for such matters… Formosa holds the ROC, as refugees resettled thereon, under US control, in law and fact… the US holds Formosa in trust for the native peoples thereof… the US administers Formosa through a nom de plum and alter ego, just as the US exercised duties as Administering Authority of the TTPI through the administering authority thereof called the Trust Territory (TTPI) government, which like Japan in Arikawa v Acheson had no independent existence apart from the US control thereover]
THE COURT: Ms. Patterson.
MS. PATTERSON: May it please the Court, Melissa Patterson on behalf of the United States.Your Honors, we ask this Court to affirm the District Court's dismissal of the action here either on the grounds that in order to resolve the United States de jure sovereignty over Taiwan would involve a political question or if this Court construes the complaint here to only assert that plaintiffs are nationals under the United States under the Immigration and Nationality Act. I think that can be exposed just simply on the merits on the statutory grounds to be a national is defined within that act as persons born in the outlying possessions of the United States which are limited to America, Samoa and Swains Island. [the political branches have already resolved the US de jure sovereignty over Formosa, and the political branches regularly exercise actual control over Formosa, and the Court may take judicial notice of the evidence for these matters, thereby avoiding the government from having to admit the truth of these matters]
THE COURT: What is the Government's position about status of the San Francisco Peace Treaty, particularly the language that United States is the principal occupying power? Is that good law?
MS. PATTERSON: I believe the treaty is in effect. We have not taken a position on whether or not the United States is, in fact, the principal occupying, I'm sorry, the United States has not --let me be clear. The United States is not the principal occupying power over Taiwan.
[this is just blatant fraud on the Court… the President and Secretary of State in numerous official US documents assert the US is the Principal Occupying Force and Principal Conqueror/Victor of Formosa within Japan, moreover the orders to separate administration of Formosa from Japan was made by POTUS JCS 1380/15 SCAP US military government directive number One, SCPIN 677]
THE COURT: What does that language mean though? I mean it means something.
MS. PATTERSON: The principal occupying power?
THE COURT: Yes, right.
MS. PATTERSON: I believe that refers to the fact that at the time the United States signed that treaty, it was the principal occupying power of Japan. I'm a little hesitant to offer a definitive, the United States definitive construction of that treaty because again, we just don't think it's relevant here. Plaintiffs are claiming that they have rights that stem not simply under that treaty, but from the fact that that treaty makes the United States the de jure sovereign over Taiwan. And the United States has made it very, very clear that whoever the de jure sovereign of Taiwan is, it is not the United States. Moreover, all of plaintiffs' claims are based -
THE COURT: If, in fact, the treaty, that language of treaty creates the United States as the de jure sovereign, can the United States walk away from that treaty? I don't think they can.
MS. PATTERSON: Certainly, Your Honor, I think that any questions about who the de jure sovereign is over a territory are entirely within the province of the political branches. [this is not so, once the political branches have spoken, then the judiciary naturally is competent to enforce the rights flowing from those decisions, so the matter is not “entirely within the province of the political branches” at all, see Arikawa v Acheson and Worcester v Georgia deciding what is a foreign country and what not]
THE COURT: If a treaty is established that the United States is the de jure sovereign -
MS. PATTERSON: I believe that -
THE COURT: --would the Executive unilaterally change that?
MS. PATTERSON: I'm a little shaky. In my reflection of Goldwater v. Carter, but I believe that the president can -
THE COURT: Let me help you, the answer is no.
[this reveals the contemptible position of the Executive branch trying to wiggle its way out of a solemn US treaty obligation to protect the peoples of Formosa, it belies an executive attitude condemned by the 13th amendment which forbids the US from enslaving peoples based on their former Japanese status or because of the need to maintain the social face of Chinese whose inept governance lost their country to the communists and caused a hundred million Chinese deaths and many needless Taiwanese deaths during the 228 Massacre and White Terror Martial Law period of military government on Formosa… the attitude evinces an unconstitutional betrayal of our duties to the Formosans, for which the Court ought advise Congress to consider impeaching the President or recommend that charges of actual treason be brought against the President for failing to assert the US duties and protect the Taiwanese from their Chinese overlords who are but alter egos for the US since their own country died and they were left with but a government in exile which governs Formosa for the US in the sole leisure of the President until Congress shall clarify whether the TRA use of “successor governing authorities” authorizes the native Formosans to form their own local territorial civil government and Constitution to replace the “Republic of China”]
THE COURT: What's different here is if the language of the treaty supports what counsel said. If, in fact, the language principal occupying power means that the United States is the de jure sovereign, you're in trouble.
MS. PATTERSON: Well -
THE COURT: You're in trouble.
MS. PATTERSON: Let me offer up the United States' position that that is not what that treaty means. Whatever else it may mean, it does not mean that the United States is the de jure sovereign over Taiwan and I think in resolving this question, this Court should look to perform that discriminating analysis of the particular question posed here. And the particular question posed here is not whether or not the United States is the principal occupying power, but whether or not plaintiffs are nationals of the United States and further whether or not the United States is the de jure sovereign over Taiwan, and on both of those questions, plaintiffs' claims fail.
THE COURT: If the United States is the de jure sovereign over Taiwan, would they be nationals?
MS. PATTERSON: Not necessarily, Your Honor.
THE COURT: What rights would come to someone who couldn't meet the statutory requirement for being a national but lived in a territory over which the United States exercises de jure sovereignty?
MS. PATTERSON: I don't know that that question's ever been presented because I don't think it's ever been explored if the United States holds simply de jure sovereignty but doesn't exercise any actual control. I don't know what rights we have there. [the Court did not say “doesn’t exercise any actual control”, but the affidavits of President Shuibian Chen in SCUS 09-33and to the US Court of Appeals for the Armed Forces belie Ms. Patterson’s claims of the actual independence of the government on Taiwan for pervasive and persistent control by the US, but the question has been decided, see the extradition statute in 28 USC from territory under US military control, it provides extensive due process rights for such persons… in the TTPI the US held the native’s aboriginal titular inchoate sovereignty pending their self-determination in trust, the same constitutional attitude prevailed about the ward status of the Chinese from whom the US demanded extraterritorial rights (see In Re Ross) and the US Court for the District of China in 22 USC, the TTPI islanders did not meet the statutory noncitizen national definition, but did enjoy a panoply of US constitutional rights including to petition without fear of treason charges by the TTPI for the termination of the TTPI and their secession from the TTPI as it were and independence from the US or free association or incorporation or commonweal with the US. Just as inchoate sovereignty is a real sovereignty, with real rights, duties and responsibilities, so too with an inchoate trust, the rights of the beneficiaries must be properly maintained under the legal status quo pending the maturity of the inchoacy to realization through self-determination at majority as it were ]
THE COURT: --but what about in de facto sovereignty, I'm just wondering other than the statutory right regarding national which you say precludes, are there any other rights that someone would have?
MS. PATTERSON: If the United States were exercising, I think your question is de facto? [by rephrasing the question as a hypothetical the US pretends it does not have to answer the actual question of actual US control over Formosa actually in fact day to day for real, which we can show extenstively through depositions of former US officials charged with reviewing and rewriting laws and regulations and the like for Taiwan to ensure no changes in the status quo]
THE COURT: Yes.
MS. PATTERSON: Yes, I think the Insular Cases did discuss what various rights would attend the United States exercise of actual power of their objective degree or control. And the court noted that it's a highly case specific type of analysis that depends on the United States' particular relationship. And I think in some of those Insular Cases, the court indicated that the stronger the ties, the more the control the United States had over the area. That could change the shape of the constitutional limitations that went with the exercise of that power. So I can't offer you up a general laundry list of rights that might go along with an exercise of de facto power.
MS. PATTERSON: Well certainly, Article 2 is rich with delegations to the Executive Branch. To the extent that the legislative powers hold a role here, I think that they've clearly spoken in this case. I don't know if every case would involve a legislative weighing in on the particular sovereignty. [and the clear message of the Congress by the Defense of Formosa Act, MDT ratification and legislative history, etc., is as POTUS and SOS documents in FRUS state, that the US in fact and law controls the disposition of Formosa, this is why Bush said neither side of the Taiwan Straitsmay unilaterally change the status quo]
EVIDENCE IN SUPPORT OF THE WRIT OF ERROR
But the Foreign Relations of the US reveals that the information deficit was caused by the failure of the US to state the truth of the Principal Occupying Force status of the US over Formosa continuing as the de jure status quo for the government thereof to this day. The title of Formosa moreover is solely under the dispositive control of the US to independently control. See : “misinterpreted as a desire to put the future
disposal of Formosa out of the US Government's independent con-
trol just in time toprevent the new Congress from asserting its in-
fluence upon this most controversial item of American foreign policy”
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1950v06&entity=FRUS.FRUS1950v06.p0587&isize=M&q1=principal&q2=victor&q3=sovereignty, United States Department of State / Foreign relations of the United States, 1950. East Asia and the Pacific Volume VI (1950) p. 573).
The President of the US has said:
In this connection it may be noted that Japan never ceded
sovereignty over Formosa and the Pescadores to China. Japan re-
nounced its own sovereignty but left the future title undefined.
Thus the United States as principal victor of Japan has an unsatis-
fied interest in these former Japanese islands [this is a de jure assertion of sovereignty by the US over Formosa]. (see http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1950v06&entity=FRUS.FRUS1950v06.p0589&q1=principal&q2=victor&q3=sovereignty,
ultimate disposition of Formosa and state frankly several basic prin-
ciples which we would consider as appropriate framework for a plan
for the solution of the Formosa question.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0588&id=FRUS.FRUS1950v06&isize=text&q1=principal&q2=victor&q3=sovereignty
United States Department of State / Foreign relations of the United States, 1950. East Asia and the Pacific Volume VI (1950) p. 575).
Regarding the final status or ultimate defined status to be determined for Formosa, the US said:
These -principles are:
1-1 The United States, as a principal victor of the war in the Pacific
and as the sole occupying power of Japan has great responsibility in
the disposition of Formosa (United States Department of State / Foreign relations of the United States, 1950. East Asia and the Pacific Volume VI (1950) Page 575).
3-The restoration of sovereignty can not take place as long -as the
possibility exists that Formosa may become a base for a new aggression
in the Pacific and the object of a bloody civil struggle.
4---The people of Formosa must be given an -adequate measure of
autonomy and self-government under the sovereignty -of China; the
relations between Formosa and China must ultimately be based on the
consent of the people of Formosa and China.
Senator Cooper referred to his remarks at the previous meeting on
the lack of emphasis in the resolution respecting the interests of the
Formosan people. The text of the preamble, in his opinion, seemed
to imply that when the dispute between the two contending govern-
ments was decided, Formosa would be turned over to either the Na-
tionalists or the Communists. He wondered whether there might not be
grounds for a new decision, either upon the basis of our security, or
the interests of the people of Formosa which had not been considered.
He referred to the President's statement at the time the Seventh Fleet
had been stationed in Formosa, when our position had been tied fully
to the Korean war. We were now extending that declaration of the
President to provide for the complete alienation of Formosa from
China. He wondered whether that might not increase the embarrass-
ment of our position since our Allies had appreciated the original
security reasons behind our position in Formosa.
We had in mind some refer-
ence to Chapter XI of the Charter in this regard, but the British did
not want such an explic it reference on the ground that it tended to pre-
judge the validity of the Cairo Declaration. If we wrote our own,
resolution, Mr. Dulles'would prefer to spell out more clearly the inter-
ests of the Formosan people, but we simply could not do this and get-
the British to go along. They would not cosponsor a resolution which
appeared to suggest that the independence of the people of Formosa.
should take priority over theCairo Declaration.
of Staff,
Mr. Dulles said that he did not know,' but since it had been fully
cleared with the Secretary of Defense, he supposed that it also had
the approval of the Joint Chiefs. Senator Lodge observed that if this
resolution were approved, it would assume we were not going to have
a war with China. He hoped that was right. Mr. Dulles said he would
not want to introduce a- resolution implying on its face that we would
want war in the Far East.
iSenator Lodge remarked that it was still not clear to him just exactly
what we would like to have happen to Formosa. Mr. Dulles said he
could provide one answer to this question, but he was not sure that his
answer would have the 'weight of authority. He thought there was
no agreed solution at the moment which could be said to be the policy
of the United States. He personally had in mind several objectives for
our action in Formosa. First, we should effectively neutralize the
island; second, we should consider the development of some measure
of local autonomy for the people of Formosa, who had always been
in a constant state of unrest and oppression, no matter who rules For-
mosa. In the third place, there should not be any abrupt change in trade
relations between Formosa and Japan, where there were two highly
complementary economies. Those three things, he believed, the com-
mission would have to take into account. The actual framework of the
final solution would, of course, depend on the evolution of conditions
throughout Asia. What happened in 'China would be important. Pos-
sibly a temporary United Nations trusteeship might be the right solu-
tion for Formosa. tSo far as he knew, there was no firm United States
policy. He thought the United States would go into this commission
doubt upon the status of the Nationalists.'
In the second place, the Nationalists d id not like the fact that neutral-
ization of Formosa meant that they would have to resign themselves to
takling no steps to regain their position on the mainland. Both of these
were real problems; we would not be able to satisfy the Nationalists
completely on them. Yet this resolution did give the Nationallist
Chinese an advantage for aatemporary-period. It ensured them against
armed attack and gave them that much 'more time to strengthen their
own internal position.
Mr. Dulles 2 wanted to assure the Delegation that Formosa had-
been discussed fully between the State Department and the Defense
Department, and there was agreement as to the present adequacy of
the resolution from the standpoint of our military program in the Far
East. Assistant Secretary Rusk had discussed the matter in detail with
Under-Secretary of Defense Lovett. He also observed that a top secret
letter had been sent from the-Secretary of State to the national De-
fense Department covering various agreements made with respect to
Formosa. [Note: FOIA Request Letter C6380 for this letter and the agreements is pending with the US Department of State FOIA Office]
Mr. Dulles went on to say that he had discussed this matter with
Ambassador Tsiang. He had made clear to him that regardless of
what happened, no further binding commitments could be made by
any government to the Nationalist Chinese on the subject of recog-
nition, and that, regardless of whether the United Nations treated
Formosa as a subject for international concern, in the case of the
United States it would not be a reason for withdrawing recognition,
nor would we encourage anyone else to think it was a basis for chang-
ing his present position on Nationalist China. He had also told Tsiang,
as regards the activities of the Chinese Nationalists, that the only
thing which would be suspended would be open armed attack, and
that neutralization would not prevent covert activity and communica-
tion with the friends of the Nationalists on the mainland. He also
had noted that any other course might extend the war so that we
2 John Foster Dulles, Consultant to .the Secretary of St ate, was a United
States
Representative to the Fifth 'Session
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0573&id=FRUS.FRUS1950v06&isize=text&q1=principal&q2=victor&q3=sovereignty
we were not trying to arrive at a final solution, but merely
to maintain the status quo on the Formosan situation [so there is an articulable status quo, which is given in USUN S/1716 and letter of the President to Warren Austin]
. There was also a problem of the native population of Formosa-
some 7,500,000 people. Their rights had not been fully considered in
the past., He noted that ,when it .had been agreed at Cairo to return
Formosa to China, it was a different China which was involved. [hence the Republic of China is dead, defunct, met its “final resting place” as FRUS says in Formosa]
be no attempt to change the status of Formosa by
force, [hence there is a status quo]
ýDRAFT RESOLUTION ON THE PROBLEM OF FORMOSA
Noting that the signatories to the Cairo Declaration declared'it to
be one of their purposes that certain territories formerly held by
Japan, including Formosa and the Pescadores, should be restored to
the Republic of China and that no formal act restoring sovereignty
over these territories to China has yet occurred;
Recognizitg that twoparties at present claim the right to administer
Formosa, that there have been threats of an armed attack on Formosa
from the Chinese mainland and that Formosa has been used as a base
for a~ttacks on the Chinese mainland, that; at~tempts to settle the dis-
pute by force would heighten international tension and would be-
prejudicial tozthe maintenance of international peace and security inL
the area as well as prejudicial to the interests of the people of Formosa;
and further
Recognizing that the foregoing considerations raise questions as to-
the obligations and responsibilities of Members under the Charter;
[US is UN Charter Administering Authority (Article 73, ch. XI etc.) over Formosa (Article 77(1)(b) territory]
regularize situation with respect to
Formosa. I mentioned that I had discussed with Sir Winston in
London two weeks ago 2 this problem in connection with vital im-
portance retention offshore island arc in Pacific. I described at
some length origin original orders Seventh Fleet, extent to which
they might be considered to rest on war powers and modification
these orders by President early 1953. With armistices now conclud-
ed Korea and Indochina, necessity arose to make clear to Commu-
nists fact that we would not allow Formosa and Pescadores to fall
I Oct. 20.
2 See footnote 3, Document 351.
into unfriendly hands. I noted curious, but deliberate, legal status
Formosa under Japanese Peace Treaty and concluded by saying
that we had hope that with US treaty protecting Formosa and
some UN action safeguarding offshore islands, we might look for-
ward to stabilization and peace in that area.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS195254v14p1.p0817&id=FRUS.FRUS195254v14p1&isize=text&q1=cession&q2=formosa
Also note the US regards suzerainty as de jure authority, see:
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1949v09&entity=FRUS.FRUS1949v09.p1079&q1=tibetan&q2=autonomy
United States Department of State / Foreign relations of the United States, 1949. The Far East: China
Volume IX (1949)
Status of Tibet: consideration of policy of the United States in view of Tibetan claim of independence and danger to Tibet from communist-dominated China, pp. 1064-1097 PDF (12.3 MB)
Page 1069
has recently prohibited the entry into
Tibet of persons from Outer Mongolia who in the past had been per-
mitted to come to study Buddhism land to become Buddha monks. Am-
bassador Henderson said that he gathered from the conversation that
the Tibetan Government recognizes the danger to Tibet which will
result if the Chinese Communists succeed in taking over China proper.
Chinese Sovereignty or Suzerainty Over Tibet
,It is to be noted in the files there are references to China's "sover-
eignty" or "suzerainty" over Tibet. As is, of course, known
the two
terms are not 'synonymous. It is difficult, however, to draw 'a precise
line of demarkation between them. In general "suzerainty" implies
less of Chinese authority and more of Tibetan autonomy than "sov-
ereignty". "Suzerainty" would accordingly appear to fit the
case
quite closely in some respects. "Suzerainty" however carries the
con-
notation of a vassal state and does not fit as well into customary Amer-
ican concepts as into British usage. It is suggested that it might be
desirable to avoid 'a possible controversy over "sovereignty" versus
"suzerainty" by referring in future to Chinese de jure authority
over
Tibet or some similar comprehensive term.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=goto&id=FRUS.FRUS1950v06&isize=text&submit=Go+to+page&page=422
MR. BOHLEN' expressed general agreement with this point of view
and cited the President's statement that "the determination of the
future status of Formosa must await the restoration of security in
the Pacific, a peace settlement with Japan or consideration by the
United Nations."
M. PARODI said .that his Government is somewhat hazy on the juri-
dical status of Formosa, and would appreciate it if our delegate to the
United Nations would give the French delegate a -fuller statement of
our views on the question. He then asked whether, in the event of a
Chinese Communist attack on Formosa, the United States would
appeal to the Security Council.
TOP SECRET WASHINGTON, 4 August 1950-6:26 p. m.
OPERATIONAL IMMEDIATE
War 88014. Personal for MacArthur from Secretary of Defense sgd
Johnson.Under the President's decision of June 27, you are to repel
any attack upon Formosa and the Pescadores. Likewise, you are to
stop attacks from Formosa upon the mainland. No one other than
the President as Commander-in-Chief has the authority to order or
authorize preventive action against concentrations on the mainland.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0437&id=FRUS.FRUS1950v06&isize=text
(i) The status of Formosa under internat~ional l'aw in the presence
or absence at t~hat time of a Peace Trea~ty wit~h Japan-
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0490&id=FRUS.FRUS1950v06&isize=M
(ii) the wishes,'as they may be expressed under any arrangements
whichthe Commission may provide,.of the inhabitants of
the Island with respect to the future status of Formosa.
In the late afternoon of August 31, President Truman held a news
conference at which, in response to a query on Formosa, he said:
"The Formosan situation as set out in my various messages is one
for settlement-in the Japanese peace treaty with the -allies who fought
in the Japanese war and with those occupation forces--by those na-
tions that have -occupying forces in Japan now.
794A.00/97-150
Memorandum Prepared in the'Preliminary Tripartite Meetings for
the Tripartite Foreign Ministers Meeting'
TOP SECRET [WASHIN GTON,] September 1, 1950.
Document 11 [D 6/2a] 2
FORMOSA
A. AREAS OF AGREEMENT
1. The Cairo Declaration must be taken into consideration in any
study of the ultimate status of Formosa.
2. The problems of temporary "military neutralization" and of
ulti-
mate disposition of Formosa are distinct.
3. The charge of aggression laid by the Peiping regime, is n ow prop-
erly in the United Nations Security Council. The U.K. and French
Complete documentation on the Foreign Ministers meeting and the prelimi-
nary meetings is scheduled for pulblication in volume In. This document
was
approved on September 1 by the French, British and United States Delegations
headed by Ambassador Bonnet, Sir Derick Hoyer Millar, and Philip Jessup,
respectively, and referred to the Foreign Ministers who took up the question
of
Formosa on September 14: see p. 500O.
'Brackets appear in the original.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0492&id=FRUS.FRUS1950v06&isize=text
2. There remained open -the question of the most desirable long-term
political solution for Formosa. Mention was made of various alterna-
tives, including consolidation with the mainland, independence, and
UN Trusteeship.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0494&id=FRUS.FRUS1950v06&isize=text
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&entity=FRUS.FRUS1950v06.p0497&id=FRUS.FRUS1950v06&isize=M
794A.00/9-450: Telegram
The Charge in China (Rankin) to the Secretary of State
SECRET PRIORITY TAIPEI , September 4,1950-2 p. m.
340. Foreign Minister Yeh called me urgently this morning to say
that Generalissimo had summoned him and Prime Minister to discuss
as yet unidentified news agency report of negotiations between US
and India involving China. Report is to effect US offers support
project of trusteeship for Formosa in return for India's foregoing
sponsorship of Peiping regime for UN membership.
adding-that word "trusteeship" is being loosely used in press and
elsewhere without general realization either of its legal significance
under UN charteror practical implications'in case of Formosa.
'Ostensible reason
would be: security but more- important would be unwillingness swallow
arrival of enemy representatives to investigate anythting on Formosa
when everyone else agrees it is the Communists Who-need inveStigat-
ing. Bulk of Formosan population would-interpret UN investigations
as directed against Chinese Government rather than US aggression.
Yeh expressed hope US recognized fact that Formosa today one
of most peaceful and'stable parts of Asia with state of law and order
better even than Hong Kong; also that substantial progress has been
made in improving effectiveness of government: and'economic and
military conditions, besides extending democratic processes. Believes
it would be most helpful if US Government could take public cog-
nizance these facts ,and contribute further to allaying uncertainty
caused by recent events and rumors by stating definitely that future
status of Formosa must await peace settlement with Japan. Alter-
native time limits involving "consideration by UN" or taking of
"in-
ternational action" are being freely interpreted to mean that any
morning people in Formosa may wake up to learn that they have
been turned over to some international authority, with reasonable
certainty that in resulting confusion Chinese Communists will actually
be onesto take over.
Department pass New Delhi; sent Department 340; repeated in-
formation New Delhi 2.
RANKIN
Long history US relations with China and President's statement
of July 19 respe',ting Formosa constitute eloquent testimony-that we
neither have been nor are preparing any ;aggressive action. Our sup-
port on Aug 29 for including on SC agenda "Complaint of Armed
Invasion of Taiwan" is further strong evidence our good faith. Note
finally that President in press conference Aug 31 said it will
Editorial Note
In the course of a radio and television report to the American
people on the situation in Korea on the evening of September 1, Presi-
dent Truman expressed the hope that the people. of China would not
be misled or forced into fighting against the UnitedNations or the
American people. lie went on to :say that the future of Formosa should
be settled peacefully by international action and not by the decision of the United States or any other nation alone. The United States,
he said, did not want Formosa for itself, and the mission of the
Seventh Fleet was solely to keep Formosa out of the Korean conflict.
(Public Papers of the Presidents of the United States':Harry S.
Truman, 1950, page 609)
[this statement can only mean that for domestic US constitutional purposes, Formosa was domestic in a foreign sense then... she was already under temporary US sovereignty,but that we did not intend that the status quo should become permanent thru incorporation with the US...]
FYI it is appreciated Chi Govt will doubtless have recurring wor-
ries arising from its concept that it is the only legal Ohi Govt and
shld receive international treatment as such. This concept not held
generally by rest of world, with views others ranging all way from
that of US to that Of Peiping, and Chi Govt wld therefore be well
advised to appreciate realities of tenuous position it now occupies.
You will wish keep this in mind in your contacts with Nat Govt
officials.
ACHESON
794A.00/9-656
211emoraduwnb by Mr. Robert C. Strong of the Office of Chinese
Affairs' to the Director of the Office of Chinese Affairs (Clubb)
CONFIDENTIAL [WASHINGTON,] September 6, 1950.
Subject: Summary of Views on Formosa as of Late August 1950
Politically and militarily, Formosa is on the downgrade. Eco-
nomically, the island seems to have reached a temporary balancing
point which is more easily tipped to the unfavorable side.
A concerted effort seems to be in progress to tighten the personal
control of the Generalissimo over political and military affairs while
at the same time creating the impression abroad that sincere efforts
at self-improvement are under way. Failing to understand the basic
reasons for loss of the mainland and deeply suspicious of the inten-
tion of the United States Government with respect to himself, the
Generaissimo is emulating the control of the Communists over their
subjects in order to preserve his personal power.
There is no question that the Generlissimo fears the Formosans
and Sun Li-jen, both of whom are receiving tioo much American sup-
port for his taste. He also fears his own party because of the discontent
among them over his rule and, the increasing importance of Chiang
Ching-kuo.
Therefore, exerting his full authority as teacher, head of the party,
and head of the Government, the Generalissimo has forced through
1Mr. Strong had returned to the Department of State from his PreviouS po)st
as ChUarg in1Taipei6...i .-
the party measure which is called reform but which in actuality cen-
ters in his elder son great power in police, party, military and political
affairs. The several secret police organizations are being unified under
his control; the work of political iindooctrination and political espio-
nage within the armed forces is directed by him; dealings with over-
seas Chinese insofar as political and secret affairs are concerned are
under his jurisdiction; and the bulk.of the propaganda and subversive
activities against and on the mainland is in his hands.
The result is a reign of terror, more silken than in other countries
or in other times but nevertheless in progress. Criticism of the Gov-
ernment, even in a mild form, is almost out of question; the critic
is in dire danger of being arrested as a Communist and disappearing.
There is no such thing as a system of justice, as we know it. Extreme
measures are being used to prevent political contacts between residents
of Formosa and political and military representatives of the United
States Government accredited to the Nationalist Government. In some
cases, persons with such contacts have been arrested, in other cases
warned, and in others closely questioned. The few who'still maintain
contact either are approved by the secret police or are courageous and
anti-Communist enough to avoid persecution.
19 FRUS China Aug 1958 296 Formosa operation might continue indefinitely
19 FRUS China 297 The President asked that this be done (Chiang out of the offshore islands)
19 FRUS China 297 Norway treats Formosa separately from offshore islands
19 FRUS China 298 SOS says Taiwanese not organized politically and had no way of making their wishes felt... US sees no way of bringing them into the present Government at this time. Norway inquired whether UN Trusteeship to develop the Taiwanese in the direction of political maturity after the death of Chiang would be feasible
SOS replied that the long term development of the island seemed to be n that direction...
SOS observed Chiang attaches importance to these islands because they are the last remnant of mainland territory he holds, since we persuaded him to abandon the Tachens in 1955.
19 FRUS China 303 the Secretary added that the only thing we are interested in is Taiwan...
19 FRUS China 304 the Prime Minister of New Zealand said that Formosa should be given to the Taiwanese and that the islands should be demilitarized... protect the Chinese on Taiwan... let the Chinese stay there as individuals but not occupy the dominating position
6 FRUS China 370 Macarthur may visit Formosa when he wants to, its under his command, the Macarthur "visit" was for the US, to advise the US, and not for the UN forces
6 FRUS China 373 Generallisimo recalled that he took over Formosa as Allied Commander of Chinese theater pending peace treaty while General Macarthur took over Japan and other areas as SCAP;now Chinese government was here, but he hoped despite this fact Struble wouldnot feel he was coming to foreign territory in visiting Formosa
7 FRUS FORMOSA (TAIWAN) p. 425 fn occupation of the island by the Chinese on October 25, 1945... secret meeting between Macarthur and Generallissimo at which time the sale of Taiwan to the United States was arranged in return for a huge sum
7 FRUS FORMOSA (TAIWAN) p. 430 UN joint administration in Formosa until and cut political and economic concern with China proper for years until Formosa becomes independent
228 massacre reportage
6 FRUS China 428 the Generalissimoin Formosa and with respect to China, the basic conflict of interest between the US and the Generalissimo'sposition as to the future of Formosa... Perhaps the best way would be through the medium of the UN to establish an independence government
Macarthur thought it might be a good idea to let CKS land and get rid oh him that way.
7 FRUS FORMOSA (TAIWAN) 433 1947 Formosans strongly desire status as Chinese nationals... Formosans stress American responsibility through Cairo decision and have published intent to appeal for American help in seeking UN intervention pending final transfer sovereignty to China... Possibilities of interim administration under SCAP openly discussed
Formosans ... direct intervention here justifiable for UN under present Japanese de jure sovereignty status
7 FRUS FORMOSA (TAIWAN) 429 SCAP military mission to Formosa
under General Alonso p. Fox
7 FRUS FORMOSA (TAIWAN) 434 government of Formosa by Formosans
reckless or unfriendly Government forces jealous of American opularity among people...US armed military force quartered in Consulate...
evacuate mainland refugees from Consulate
6 FRUS China 430 The Generalissimo considers Formosa part of China.
withdraw objections to Chiang attacking mainland (is US actually controls Chiang)
9 FRUS 447 official and public receptivity (a) US milit occupation
(b) UN trusteeship
9 FRUS China 428 Formin Huang equates ROC presence in Formosa with US in Western Pacific
9 FRUS China 429 (1958) Formin Huang :The faith and hope of these Chinese people must be kept alive and nurtured at all costs... Any indication by this Government which suggests its contentment with its present status of exile and its willingness to see such a state of affairs perpetuated... We value our international position and we are conscious of the precariousness of our diplomatic front...
The Chinese Government appreciates Secretary Dulles' suggestion
that we should redouble our efforts on education,art and other aspects of Chinese culture.
Our primary concern, however, must be the preservation and strenghtening of the foundation of this Government.
9 FRUS 454 US military occupation... An unnegotiated occupation...However, US military control through advisors with authority if entirely feasible at this point and has been suggested by Chinese officials.Many highest Chinese officials have repeatedly requested maximum US military cooperation, even suggesting military condominium.
Over million Chinese civilians here look hopefully to remporary US take-over to save selves and what they have salvaged from mainland. Mass of Taiwanese hate kmt, fear Communists and would welcome US military occupation.
9 FRUS US policy toward Formosa 455
Chinese armies and civil administration here be placed under SCAP supervisory control... Expect Chinese military and official cooperation would eliminate need large bodies US soldiers.
Best impetus would, of course, be US declaration of interest in island
9 FRUS 456 Dec 23 1949 re pres statement Dec 22 that Formosa is a part of Nationalist China... British Embassy asked for internprretation of the meaning of this statement
7 FRUS Formosa (Taiwan) 467 profound belief, here concurred in,t hat Formosa must pass under temporary United Nations or American supervisory control
Before March 8 Formosans discussed the fact that sovereignty has not yet passed to China. The public refused tobelieve that America would permit the massacre to develop or the Chinese thereafter to remain in unlimited control.
(following withdrawal of troops)...or if advantage could be taken of the de jure status of Formosa to insist on a supervisory body to reduce and check current excesses, the island might be reserved under temporary international control
Military arrests in central Taiwan probably largely for private gain since persons arrested usually released on payment money or goods
7 FRUS China 470 Gimo... virtualautonomy ... Formosa... Gimo was aware of the situation and expressed hearty endorsement in principle of some form of joint Chinese-American administration of Formosa for a limited period of years
7 FRUS China 471 Sin Min Wan Pao accused US of attempting to wrest Formosa (Taiwan) from China and charged that the Island already had "fallen under American control"... USIS Director saying "The US intends to apply the Atlantic Charter to Taiwan. Then the Taiwanese can decide freely for themselves to whom they owe allegiance."
7 FRUS China 473 St Louis Post and Manila bulletin suggest the best thing to do was to let the Americans take over...Director USIS views were: (1) Although the Cairo Conference declaration, the Postdam declaration and the Yalta pact defined the ownershipof Taiwan yet prior to the conclusion of the Sino-Japanese peace treaty the ownership of Taiwan cannot be formally established, (2) apply the Atlantic Charter to Taiwan. Then the Taiwanese can decide freely for themselves to whom they owe allegiance, (3) At present Taiwan is under General Macarthur's control.If there is anything the Taiwanese want they can address their petition to Macarthur, (4) If the Taiwanese want to free themselves from Chinese domination the United States can help them, (5)If the Taiwanese wish toplace themselves under American trusteeship they can set forth the terms they hope for as well as the period of trusteeship. (7) After Taiwan is placed under American trusteeship allthose arrested in connection with February 26th civil commotion as well as politicalprisoners can be released immediately and allsuch pilitical measures as conscription and collection ofland tax in kind can be immediatelyabolished.
See: http://www.fbodaily.com/archive/2006/01-January/21-Jan-2006/FBO-00969211.htm Department of the Navy, Naval Air Systems Command, Naval Air Warfare Center Training Systems Division, 12350 Research Parkway Code 253, Orlando, FL, 32826-3224. The Program Executive Office for Simulation, Training, and Instrumentation (PEO STRI) Customer Support Group (CSG), intends to award a sole sources bridge contract for technical services support for the United States Pacific Command (USPACOM). USPACOM has a requirement for continuation of technical services for Joint Training System Specialist (JTSS) support for Han Kuang Joint Exercise Life Cycle (JELC) development and management and provide JTSS support to assist in development and preparation of the Taiwan Joint Training Management System (TJTMS) implementation plan and prototype documents, required for rapid TJTMS development for a for a base period of performance of seven months from 1 March 2006 through 31 September 2006, with additional one month options that may be exercised beginning on 1 October 2006 for a possible total period of performance from 1 March 2006 to 28 February 2007. … The above services are currently being performed by Camber Corporation for USPACOM under contract whose period of performance will expire on or about 28 February 2006. No other company has knowledge of the classified information necessary, nor has performed joint training system support in Taiwan. Camber Corporation is the only contractor that can supply the unique exercise services for the following reasons: - the only company that has performed the joint training system tasks with the client since 2003 - the only company that has synchronized these tasks, with other classified documents and events, and understands the unique political sensitivities related to this work - the only company with extensive experience in helping Taiwan design, execute, and assess their joint exercise program in accordance with lessons learned from previous exercises - if this effort were competed at this late date, the Government would incur costs in excess of their current very tight budget. To continue these services without interruption, and to provide a smooth transition to a new contractor requires that this bridge contract be awarded to Camber Corporation.
Also see: Spencer Yang, Navy Commander ( O-5) (http://spencer5896.spaces.live.com/),Joint Operation Training Division, December 2004 — Present (4 years 10 months) , 1.Joint Operation Exercise Training and Assessment
2.HK Exercise MPC work with USPACOM J7 in Honolulu, HI, in Mar 2007.
3.Have 5 years work experience with USPACOM J7,Cubic and Camber company since 2005 till now, and focus on " after action review" phase of Joint Operation Training Exercise
4.Doctrine Exchange between Taiwan with US
5.Have detail discussion with US military and learn new concepts to enhance Taiwan military doctrine development.
6.In charge Joint Operation Training Exchange Cooperation Program, have experienced for Joint Operation transformation exchange& cooperation with US DoD, JFCOM and PACOM, help Taiwan enhanced JOP’s capability since 2007 to now.
And see: This effort will include services required for implementation, integration, and life cycle support of Taiwan Military Operations. Any questions/comments are to besubmitted in writing to both the Contracting Officer, Carla J. Brown, e-mailaddress carla.brown@navy.mil, and to the Contract Specialist, Kelly Smith, at e-mail address kelly.m.smith@navy.mil. http://www.fbodaily.com/archive/2009/06-June/11-Jun-2009/FBO-01839860.htm
And see: program to provide enhanced Command, Control, Communications, Computer, Intelligence, Surveillance, and Reconnaissance (C4ISR) capability for Taiwan Air, Sea, Land, and Joint Defense Platforms and Command/Operation Centers. http://www.fbodaily.com/archive/2002/07-July/05-Jul-2002/FBO-00110983.htm
And see: The Program Executive Office for Simulation Training & Instrumentation has a requirement for the final phase of the Taiwan Joint Training Management System, exercise integration, and interoperability between Taiwan and the US Pacific Command. The Government intends to solicit on a Sole Source basis with Camber Corporation under the authority of FAR, 6.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements. Corretta Benton, 407-384-5100. Email your questions to PEO STRI Acquisition Center at corretta.mcgriff@us.army.mil (http://www.fbodaily.com/archive/2007/11-November/18-Nov-2007/FBO-01453960.htm)
PACOM maintains an office in the District of Columbia pursuant to 10 USC authority, where Fondren, age 62, worked at the Pentagon and, from August 2001 through Feb. 11, 2008, was the Deputy Director, Washington Liaison Office, U.S. Pacific Command (PACOM). (http://washingtondc.fbi.gov/dojpressrel/pressrel09/wfo061109.htm)
the affidavit of Shuibian Chen in SCUS 09-33 and USCAAF Misc. Docket October 2009 shows (http://api.ning.com/files/SHE1XnGnhHJDH8PAMRQHXsdElMqJ-9csj-*m7Mgx6VdDIBtJ75v*yz5YCudjHvdxCJ9DFeKRZ-bsZ1ORSxezYlD6olUYBKTN/ChenShuibian.pdf)
United States Department of State / Foreign relations of the United States diplomatic papers, 1942. China
(1942)
General wartime relations between the United States and China, with emphasis on China's military position and United States efforts to give military assistance to China, pp. 1-190 PDF (70.5 MB)
________________________________________
Page 186
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1942China&entity=FRUS.FRUS1942China.p0196&q1=formosa&q2=trusteeship
FOREIGN RELATIONS, 1942, CHINA
In certain colonial areas it will hardly be desirable to restore the
previous regimes in full, even if that were possible. It may be possi-
ble in many instances to find a solution through a new legal application
of the concept of trusteeship. Some such trusteeship might be en-
trusted to a single nation, others to boards of trustees composed of
nationals of several nations. These boards of trustees would repre-
sent an advance over the mandate of the League of Nations because
they could be used to define more clearly the importance of time and
the principle of "coming of age." This would be analogous to the
principle of successive stages of self-government embodied in the
American schedule for Philippine independence. The President finds
[tells me] 58 that Mr. Churchill heartily welcomes [is interested in] 58
the principle of trusteeship.
The President is much impressed
by your clear view that only bases in the two key areas of Liaotung and
Formosa can effectively coordinate land, sea and air power for the
long term prevention of renewed aggression.59
Secretary Rusk replied that Mr. Gromyko's comment about Chinese policy being a reaction to US policy might be a possible explanation if only Washington had trouble with Peiping. But, there was also trouble between Peiping and Moscow. Ten days ago we had held our 127th meeting with Peiping in Warsaw. For the 127th time Peiping had rejected any kind of discussions with us unless we first were prepared to surrender Formosa. We replied we could not surrender 11 million people. If we were to offer recognition to Peiping tomorrow morning, without Formosa, they would say no.
SECRETARY'S DELEGATION TO THE TWENTIETH SESSION OF
THE UNITED NATIONS GENERAL ASSEMBLY
New York, September-October 1965
SUBJECT
USSR Foreign Minister Gromyko's Dinner for Secretary Rusk
http://www.fas.org/spp/starwars/offdocs/lbj/j.htm
FOREIGN RELATIONS OF THE UNITED STATES
1964-1968, Volume XI
Arms Control and Disarmament
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1949v09&entity=FRUS.FRUS1949v09.p0217&q1=formosa&q2=trusteeship
United States Department of State / Foreign relations of the United States, 1949. The Far East: China
Volume IX (1949)
Policy of the United States with respect to the question of recognition, pp. 1-260 PDF (89.2 MB)
________________________________________
Page 207
Next the Senator brought up the question of Formosa. He stated
that he had talked to "many military authorities" in the Far East
who
had told him that they regarded the retention of Formosa as of the
utmost strategic importance to the United States. He said that his
own personal view was that it was to our compelling interest to hold on
to the island by any means short of actual war, and that he felt we
should pursue the possibility of adopting one of two alternatives by
way of protecting our interests in that area-(1) to arrange, if pos-
sible, a trusteeship of the island by the United Nations (he conceded
that this was probably not practicable) or (2) a military occupation
on our part of Formosa. It was his thought that such a military oc-
cupation would protect our strategic interests in that area which
he regarded as "still strictly speaking a part of Japan," even
though
by the Cairo Declaration 51 we had permitted the Chinese to take over.
The Senator stated that he felt "it would be better for Communists
to try to dislodge us from the island first before we would have to
come in later and try to do the same thing with them". The Secretary
said he felt the Senator should know that this subject is receiving
constant consideration, that there had been a half dozen meetings with
the National Defense on the subject, with another one arranged for
this week, and that there is some difference of opinion among military
authorities as to the strategic importance of the island. The Secre-
tary said he hoped a firm decision concerning the matter would be
forthcoming at an early date.
who can permit a usufruct... only an owner or trustee... we permitted the ROC to administer Formosa..
. while the ROC was still a sovereign nation she had an inchoate, but inferior usufructuary interest, pending the treaty of peace...
as CKS admits in FRUS...(VI FRUS 1950 Page 373 ) so JCS 1651 we already fulfilled the Cairo promise and by virtue of allowing and permitting Chinese administration by military government in occupation on Formosa, Formosa has been returned to the ROC... then comes the time for actual de jure sovereignty transfer, and alas the ROC has died, and moved its mausoleum to Formosa, but the aged family members keep the mummy on public display even though the chance of resuscitation from its post-mortis state is not likely... so who has an interest... well the deceased occupant does, through their estate and the competing claimants thereto... but the US actually has legal title and real control to determine the disposition independent of any other power, so we have sovereignty for a while, in trust... and we are bound to respect the competing claims, and preserve the trust for those claims ultimate resolution... but the superior interest, the paramount interest, is not the competing claims of the dead estate and its stakeholders... but rather the actual bulk of the trust itself... which we must steward to self-determination, in the face of the obstinant and rather grotesque, morbid and putrid decaying mummy
every time the US says that Formosa could be the subject of a trusteeship, that means it already is a trust territory... only trust territories can be the subject of trusteeship agreements... this is very common in US law in conquest... many native lands are trust lands even though they are not held pursuant to trusteeship agreements or cessions or peace treaties... the act of conquest imposes a trust... that is why the war is lawful, because it ultimately accrues to your benefit... I conquer you, big white man me, to help little different colored you...
if I permit you to use my child's bicycle, then you have the rights and duties of administering the usufructuary interest which I as trustee of my child's property during their minority while guiding them into their majority and maturity and self-determination may control for their paramount interest, you may not claim the bicycle is actually your property... now assume you had a bike, and a big bully demanded it from you as compensation for a fight with them, in which they were actually the aggressor... and you agreed and gave them title to the bike, reluctantly, but not in the actual heat of the moment... to make peace as it were... then I come along and beat up the big bully... now the bike has come into my control... and I want to give it back to you, but you have taken ill, mentally ill, and are non compos mentis... so even if I want to give legal title to you, you are incompetent to hold that form of title... but I can permit you to use your bicycle, and we will call it your bicycle, but actually it is my bicycle, even though you ride and care for it and I let you issue your own license for the bike to affix on it, and you did your cute logo and everything for it, name brand (Free Formosan Flyer), model number, what have you... and when you become incompetent, I demand the bully give me a clear bill of title to the bicycle, so I can hold the legal title for you in trust during your incapacity... and for the sake of the bicycle itself, to repair it, keep it clean and safe and usable, because a bicycle also an interest in being itself, that is a self-determinative interest... but then your big brother comes and says he wants to be your trustee... but I rightly do not trust he has your true best interests at heart nor will care after the bike... but because I want peace with him, I say, look I understand that both you and your brother cherish this bicycle which you inherited down through the family from the elders... so lets not discuss this idea about who holds the legal title and what the future will hold, because you both agree the bike is yours, and I do not agree that that is how things ought rightly be... now did I just grant you the legal title... NO... I told you that I am keeping the legal title, but I respect your right to have wishes in the matter... the right to assert a claim against the property which I am continuing to manage in my capacity as trustee... but which your brother continues to enjoy the uses and fruits of... and it does not concern me that you both say it is properly your bike and not the others... so long as you do not erupt into violence... and so long as neither or both of you try to actually affect the legal title, which I hold you, both for you and for the bike itself... and being trustee accords with my own self interest too... so the title I hold is full and complete and lawful and includes both trust, fiduciary aspects, self-determination aspects, management of the duty of preservation of the object of the trust for the ultimate resolution of the competing claims as by law permitted for example by maturity through self-determination, and for myself... and because it really used to be your family's bike, etc... the trust need not be written, but is obviously, necessarily, naturally implied... Formosa for the Formosans is not an incredible mantra, but common sense... other formulations are quite incredulous... so when we say American Formosa, we mean a Formosa entitled of right to American protection... and that is indeed the status quo... that Formosa belongs to Formosa within America... it is foreign in a domestic sense... and thus insular... and this is in no way contradictory to it being putatively Chinese territory which may one day peacably, lawfully be restored to China... indeed this is in no way incompatible with the desire of the incompetent to regain their competence and sit as the eldest at the table of their national fellowship and restore their national dignity through securing liberty to their people and the people's property in their own land as a renewed free China...
so how critical is Formosa to world peace? China would be nowhere without Formosan managers, markets, know how and capital... the US would be up the creek without a paddle now were it not for Formosa and her sacrifices for us... the ROC would not be anywhere but in unused sections of libraries were it not for Formosa... and the PRC would have to redirect all her nationalistic violent tendencies against her neighbors were it not for the Formosan steam valve... and Japan would have nowhere where it could feel commisseration in the way it does with Formosa, as a parent sees a long lost child who has grown up without them, such anguish and pain and loss... so Formosa can make a good argument for her value to the world, the entire world, and to peace...
equal to the rights of any other of the Principal
Allied and Associated Powers in whose favor Germany renounced her
rights in those territories. That position has been made clear in
official correspondence with other governments concerned, in our
Peace Treaty with Germany of 1921,9 and in our Treaty of 1922 with
Japan in which we assented to the mandate given to Japan.'0
It is unnecessary to consider at this stage whether violation by
Japan of the terms of the mandate ipso facto terminated the mandate
because existence of the mandate does not present any legal obstacle
to an American military administration of the islands during
occupation.
It is unnecessary to consider at this stage whether violation by
Japan of the terms of the mandate ipso facto terminated the mandate
because existence of the mandate does not present any legal obstacle
to an American military administration of the islands during
occupation.
The United States, as belligerent occupant of the territory, super-
sedes the Japanese Government as the actual and lawful government
of the territory. There is no question of the lawfulness under interna-
tional law of the American occupation.
Belligerent occupation is a temporary rather than a permanent
status and does not transfer sovereignty to the occupant although
during such occupation the belligerent occupant is entitled to exercise
the rights of sovereignty subject to the rule of international law
dealing with military occupation.
The fact of occupation does not operate to terminate the mandate
although it may suspend its operation. The belligerent occupant is
not subject to the terms of the mandate or responsible to the League of
Nations. The military administration of the belligerent occupant is
not bound by the mandate provision concerning the establishment of
bases and fortifications and is not required to make reports to the
Council of the League of Nations. Any rights of the League of
Nations in the mandated territory are in abeyance during belligerent
occupation and need not be of concern to the military administration.
The belligerent occupation does not confer United States nationality
upon the inhabitants of the Japanese Mandated Islands. The man-
date, however, did not confer Japanese nationality upon them. Native
inhabitants, therefore, should not be treated as enemy aliens.
Prepared and reviewed by the Inter-Divisional Area Committee on
the Far East.
LA: ALMoffat (drafting JA: ERDickover
officer) BRJohansen
TS: GHBlakeslee FSWilliams
HBorton CA: JCVincent
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1255&q1=mandated&q2=islands&q3=military%20government
It is urged, therefore, that no action be taken on policies adopted
during the period of military government which might impair com-
plete latitude of decision by the United States Government at the
conclusion of the war.
During the period of military government, the military authorities
(a) should be guided by accepted international law, (b) should under-
take no mass segregation, internment or removal except such as may
actually be required by military necessity, and (c) should not attempt
to anticipate a decision which must be predicated on agreements
which it is not likely will be concluded with other countries until after
the war.
Formosa has been under Japanese sovereignty for half a century.
Although technically all Formosans, therefore, are enemy nationals,
the State Department looks upon the Chinese Formosans and the
Formosan aborigines as quite apart from the persons of Japanese
blood who live on the island. It anticipates that the Military Gov-
ernor will act generally on the assumption that the Chinese For-
mosans, who speak Chinese and are of Chinese or of mixed Chinese
and aborigine origin, are to be restored to Chinese citizenship after
the war, and that the tribal aborigines, who are akin to the non-
Christian peoples of Northern Luzon, are neither Japanese nor Chi-
nese, but more properly to be considered as wards of whatever
government has control of the island.
The Marshall, Caroline and Marianas Islands, on the other hand,
have been held by Japan only under mandate and the natives of these
islands have never become Japanese nationals. They should be treated
as wards of the military government. A number of Koreans may be
found in the islands. If so, special consideration should be given them.
About half of the Japanese civilian population of Formosa com-
prise officials, corporation executives, technicians and some business
entrepreneurs; the other half are largely urban laborers and small
businessmen.
In the Mandated Islands, a far greater proportion of the Japanese
civilian population will be found to be farmers and laborers, primarily
workers on the sugar plantations in the Marianas, brought for such
purpose from the Liuchiu Islands.
It is quite possible that if there is intensive fighting in Formosa
the Japanese civilians will be found segregated at one or more points,
in which event, clearly, the United States military authorities should
continue such segregation at least until stable conditions are restored.
In the Mandated Islands, such segregation of the Japanese civilians
does not seem probable.
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1255&isize=text&q1=mandated&q2=islands&q3=military%20government
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1278&q1=mandated&q2=islands&q3=military%20government
United States Department of State / Foreign relations of the United States diplomatic papers, 1944. The Near East, South Asia, and Africa, the Far East
Volume V (1944)
Japan, pp. 919-1289 PDF (138.1 MB)
--------------------------------------------------------------------------------
Page 1266
FOREIGN RELATIONS, 1944, VOLUME V
890.0146/6-2344
Memorandumn by the Director of the Office of Far Eastern Affairs
(Grew) to the Secretary of State
[WASHINGTON,] June 23, 1944.
MR. SECRETARY: Major General George V. Strong, Senior Army
Member of the Joint Post War Committee, came to see me this
morning at the request of Lt. General Stanley D. Embick, of the Joint
Strategic Survey Committee, and showed me the record of the dis-
cussions of the Joint Chiefs of Staff in January and March last on the
subject of the ultimate disposition of the Mandated Islands in the
Pacific.
In January the Joint Chiefs of Staff recommended that no action
should be taken which directly or indirectly would prejudice the
ultimate disposition of these islands.
In March the Joint Chiefs of Staff recommended that in the interest
of future security the Japanese Mandated Islands north of the equator
should pass to the title and sole control of the United States.
Some concern had been caused the Joint Chiefs of Staff by the
agreement between Australia and New Zealand envisaging eventual
control by these countries of certain of the Mandated Islands.'6 It
was pointed out that Australia and New Zealand with their limited
resources would not be able to defend these islands against any strong
Pacific power; that if these islands should be attacked by some Pacific
power, as in the case of the present -war, the United States would again
have to come to the rescue.
The United States would, however, not be directly concerned with
the eventual disposition of the Mandated Islands south of the equator
provided that the United States should enjoy operational rights
therein.
J EOSEPH] C. G[REW]
Lot 122, Box 53
Memnoranduam Prepared by the Inter-Divisional Area Committee on
the Far East
PWC-184a [WVASEIINGTON,] June 28, 1944.
PAPERS CONCERNING MILITARY GOVERNMENT IN FORMOSA
The Inter-Divisional Area Committee on the Far East has prepared
fourteen papers on military government in Formosa to answer twenty-
eight questions submitted to the Department by the Civil Affairs
Ed Signed at Canberra, January 21; see telegram 12, January 22, from Canberra,
vol. III, p. 169.
1266
http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1944v05&entity=FRUS.FRUS1944v05.p1280&q1=mandated&q2=islands&q3=military%20government
re US application of the Refugee Convention as applying to Saipan: http://digicoll.library.wisc.edu/cgi-bin/FRUS/FRUS-idx?type=turn&id=FRUS.FRUS1948v08&entity=FRUS.FRUS1948v08.p0934&q1=saipan&q2=refugees
The comments above are in reply to the portions of the rule excerpted below:
We will confirm whether new CHIP
applicants' declarations of citizenship are consistent with the
information in our records by verifying the submitted names, SSNs, and
DOBs against our Enumeration System records and provide those
verification results, including indicator codes of citizenship data
that may be part of the record.
A citizenship code that identifies the number holder
status as a U.S. citizen or the work authorization of a non-citizen;
4. To the Department of Homeland Security, United States
Citizenship and Immigration Services, for identifying and locating
aliens in the United States pursuant to requests received under section
290(b) of the Immigration and Nationality Act (8 U.S.C. 1360(b)).
10. To the Department of State for administering the Social
Security Act in foreign countries through facilities and services of
that agency.
11. To the American Institute, a private corporation under contract
to the Department of State, for administering the Social Security Act
on Taiwan through facilities and services of that agency.
12. To the Department of Veterans Affairs (DVA), Regional Office,
Manila, Philippines, for administering the Social Security Act in the
Philippines and other parts of the Asia-Pacific region through
facilities and services of that agency.
Respectfully submitted,
Dr. Paul Maas Risenhoover
Concerned American Citizens of American Formosa United To Honor the Fallen USMC Officers from the US Invasion and Ultimate Conquest of Formosa begun in 1867 and the Memorial Cemetery of Lt. Cmdr. A.S. MacKenzie in the US War against the Native Formosans resulting in the Treaty of Peace between the United States of America and the Eighteen Southern Confederated Tribes of Formosan Indians under Chief Taukitok establishing the sovereignty of the US over the native Formosans, the allegiance of the native Formosans to the US, and the constitutional nationality of the native Formosans as Americans to this date by repossession of Formosa by the US by conquest of Japan and her unconditional surrender and Aide Memoire of Dulles of October 25, 1950 retaking Formosa for the US albeit in trust nevertheless for the native Formosan peoples pending their self-determination as the Congress may authorize
27-1 Yu Nung Rd. 5th Fl. 1-2, 5A3, East District, Tainan City, 70164 American Formosa
Comment on FR Doc # E9-27846
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