such American citizens, with their descendants, are subjects of foreign States, owing allegiance to the governments thereof; and whereas, it is necessary to the maintenance of public peace that this claim of foreign allegiance should be promptly and finally disallowed: 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. All naturalized citizens of the United States, while in foreign countries, are entitled to and shall receive from this government the same protection of persons and property which is accorded to native-born citizens." The enforcement, or rather the attempted enforcement, of this legislative declaration has led the diplomatic branch of our govcrnment into many difficulties. With reference to a considerable number of countries these difficulties have in a great measure been obviated by the negotiation with them of naturalization treaties. Judicial decisions in the United States as to the existence of a right of expatriation in the absence of statutes creating it have not been uniform. In Talbot v. Janson, decided in 1795, Justice Iredell denied that the individual had a right of expatriation at will. So also in Murray v. The Charming Betsey," The Santissima Trinidad,10 Inglis v. Sailor's Snug Harbor," Shanks v. Dupont,12 the court, while not in each instance passing directly upon the point, showed an inclination to accept the common-law principle which denied the existence of an individual right of expatriation. This same ground was taken by Chancellor Kent in his Commentaries.13 In M'Ilvaine v. Coxe,1 however, it was held that persons born in the colonies and remaining in the country and giving their allegiance to the new governments after the 7 Rev. Stat., §§ 1999, 2000. 12 3 Pet. 242; 7 L. ed. 666. 13 Lecture XXV. 14 2 Cr. 280; 2 L. ed. 279; 4 Cr. 209; 2 L. ed. 598. Declaration of Independence were released from their British allegiance and came under the protection of and bound in allegiance to the newly established American governments. Since 1868 the courts have not questioned the right of the citizen voluntarily to expatriate himself and become a citizen of another country.15 15 See Moore, Digest of International Law, III, § 433, and authorities there cited. See also article by Slaymaker entitled "The Right of the American Citizen to Expatriate" in The American Law Review, XXXVII, 191. The following convenient summary of the attitudes of various foreign governments with reference to the subject of expatriation is given in the Report of the Citizenship Commission. (H. R. Doc. 326, 59th Cong., 2d Sess., p. 12.) "A. The right of voluntary expatriation is wholly denied. A subject has no right to leave the territory of his origin without the express permission of his sovereign; he may not renounce his original allegiance or assume another, and upon his return to the jurisdiction of his origin he is liable to arrest and punishment. (For example, this is the attitude of Russia and Turkey.) B. The right of expatriation is admitted, provided there exists at the time no unperformed obligation to military service; but, in case this obligation exists, naturalization in a foreign country obtained before it is discharged is considered as void. (For example, this is the attitude of France.) C. The right of expatriation is admitted, but naturalization in a foreign country does not become valid from the point of view of the country of origin without an express and formal renunciation of the original citizenship made in the country of origin and in accordance with its forms of law. (For example, this is the attitude of Switzerland.) D. The right of expatriation is admitted, but, while naturalization abroad is freely allowed, in case of a return to the country of origin the person thus naturalized is not denied the rights of citizenship in that country, but is permitted without further formality to retain his rights as a citizen as if he had never departed from the country. (For example, this is the attitude of Venezuela.) E. The right of expatriation is admitted, and citizenship absolutely ceases (although it may afterward be legally recovered) at the moment when the act of naturalization in a foreign country is performed. (This is the attitude of the majority of foreign governments.) F. The right of expatriation is admitted and is assumed to have been accomplished when a citizen absents himself from the parent country for a prolonged period of years. (For example, this is the attitude of the Netherlands.)" CHAPTER XX. THE LEGAL STATUS OF INDIANS. The question of the legal status of Indians, which for many years, and especially during the last quarter of the nineteenth century, decreased in practical importance, has, since the annexation of the Philippine Islands, gained a new constitutional value for the reason that upon the islands there are many tribes which for years to come it may be necessary to govern in ways analogous to, if not identical with, those which, in the past, we have employed in the control of the red men in the United States proper. It will, therefore, be well to treat this subject rather more particularly than we should otherwise have done. The legal relations of the Indians to various governments, established by their white conquerors, have had reference, broadly speaking: (1) to their rights to the lands occupied by them; and (2) to their political status either as tribes or as individuals. § 137. Indian Lands. With reference to the title possessed by Indians in the lands occupied or hunted over by them, the principle was from the first applied by the white settlers that by discovery and occupation the title in fee to all the lands thus taken possession of became vested in the sovereign of the State under whose authority the conquest was made.1 This principle that the original title to all the land within a State is in the sovereign of that State, and that by grant from him all individual titles are obtained, was the feudal one which 1 In earlier years the attempt was made to establish in international law the principle that mere discovery of unoccupied land, or land inhabited by uncivilized tribes, is sufficient to give title to the sovereign by whose subjects the discovery was made. This principle, however, never obtained general recognition, and the present doctrine was established that in order to give a national title which other States are bound to respect, discovery must be followed, within a reasonable time, by effective occupation. the crown lawyers of England had developed; and, after the separation from that country, the American Commonwealths continued to apply the doctrine, substituting, however, of course, the respective States for the English Crown. With the formation of the present Union, and the transfer to it by the several States of their respective claims to public lands, the United States was substituted as the owner of all lands to which private titles had not been obtained. This grant to the Federal Government carried with it whatever interest or title the several States had had in the Indian lands. The first discussion in the Supreme Court of the United States of the title or interest still retained by the Indians in the lands occupied by them, was in the case of Fletcher v. Peck.2 This case involved the question whether the State of Georgia had been seized in fee of certain lands which it had sold, but later resumed possession of. Marshall in his opinion, without attempting any argument, said: "It was doubted whether a State can be seized in fee of lands subject to the Indian title, and whether a decision that they were seized in fee, might not be construed to amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title. The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seizin in fee on the part of the State." 993 26 Cr. 87; 3 L. ed. 162. 3 Justice Johnson dissented from this doctrine, holding that the fee was in the Indians, and that the interest of the United States consisted in a right of pre-emption. He said: "What, then, practically, is the interest of the States in the soil of the Indians within their boundaries? Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors within certain definite limits. All restrictions upon the right of soil in the Indians amount only to an exclusion of all competitors from their markets; and the limitation upon their sovereignty amounts to the right of governing every person within their limits except themselves. If the interest of Georgia was nothing more than a pre-emptive right, how could that be called a fee simple, which was nothing more than a power to acquire a fee simple by purchase, when the proprietors should be In Johnson v. M'Intosh' the question of titles to Indian lands was thoroughly examined and a conclusion reached which was substantially the same as that boldly stated without argument by Marshall in the Fletcher v. Peck case. In substance it was held that while the fee to Indian lands is in the United States, and, therefore, that the Indians are not able to grant titles to the same which will be recognized in the courts of the United States, nevertheless these Indians have certain possessory rights from which they may be dispossessed by the United States only with their consent, and upon compensation therefor. The doctrines thus laid down in 1823 by Marshall in Johnson v. M'Intosh have never been changed, and the practice of the United States government uniformly throughout its history has been in acordance with it. That is to say, where Indians have been dispossessed of their lands their consent, in form at least, has been obtained, and compensation made either in the form of money or other lands. Where tribal relations have been maintained these possessory rights have been held to be vested in the tribes respectively, and not severally in the individual Indians. From time to time, however, as we shall see, the United States Government has provided for the dividing up of these tribal lands and their apportionment in severalty among the individual Indians. § 138. The Legal Status of Indians. From the earliest times the Indians, though treated as subject to the sovereignty first of the foreign colonizing powers, then of the colonies or States, and, finally, of the United States, have been considered not as citizens or subjects, that is, as members of the various bodies politic within whose midst they have lived, but, from the constitutional viewpoint, as aliens, and their tribes as foreign nations to be dealt with as such, namely, by treaties and pleased to sell? And if this was anything more than a mere possibility, it certainly was reduced to that state when the State of Georgia ceded to the United States, by the Constitution, both the power of pre-emption and of conquest, retaining for itself only a resulting right dependent on a purchase or conquest to be made by the United States." 48 Wh. 543; 5 L. ed. 681. |