to expatriation. The act also provides for the naturalization of resident aliens of countries whose laws or treaties permit expatriation, and declares such naturalized citizens entitled to the protection of Great Britain everywhere except in the respective countries of their original allegiance. By a number of foreign States, among them Turkey and Russia, the doctrine of inalienable allegiance is still asserted. In many others it is partially upheld. With most of these countries the United States has entered into special treaties governing the subject of naturalization.* § 136. Right Recognized by United States. Since 1868 the right of expatriation has been uniformly asserted by all the departments of the United States Government. Prior to that time, the executive, judicial, and legislative branches were not always in harmony upon this point. During the early years, the executive branch of the government, while asserting the right of aliens to become naturalized citizens of the United States, did not affirm that this change in political status should be recognized by the States of their respective original allegiance. Mr. Jefferson as Secretary of State in 1793 wrote: "Our citizens are certainly free to divest themselves of that character by emigrating, and other acts manifesting their intention, and may then become the subjects of another power, and free to do whatever the subjects of that power may do."5 A little later, Marshall, as Secretary of State, while affirming the right of an alien without the consent of his native State to seek naturalization, observed that other States should recognize such naturalization "unless it be one which may have a conflicting title to the person adopted." At various times the Executive Department of the United States Government asserted that a naturalized American citizen was entitled, 4 For the various attitudes of, and treaty relations with, foreign States, see Moore, Digest of International Law, Vol. III; Van Dyne, Citizenship, Pt. IV, Chap. II; The American Passport, pp. 127 et seq.; and Report on Citizenship of the United States, Expatriation, and Protection Abroad, 59th Cong., 2d Sess., Doc. 324. 6 Jefferson's Works (Washington ed.), IV, 37. while abroad, to the same protection at the hands of the American Government as that to which a native-born citizen was entitled. Mr. Buchanan was, however, the first Secretary of State to declare in unqualified terms that the naturalized American citizen was entitled to the full protection of the American Government while abroad, and even in the State of his original allegiance, whatever might be the doctrines and laws of that country with reference to expatriation. Later Secretaries of State did not continue to state the American doctrine as absolutely as had Buchanan. Since 1868, however, an express legislative declaration has prevented the Executive Department from qualifying the doctrine in words, but in fact, it has not been rigorously applied in cases where neither justice nor expediency has demanded it. Since the first years of the Constitution the legislation of Congress upon the subject of naturalization has implied the right of expatriation. By the act of 1868 which is still in force, the right of expatriation was explicitly declared in the most unqualified manner. "Whereas," the act reads, "the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights 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 rights of citizenship; and whereas, it is claimed that 6 Moore (Am. Dip., p. 174) writes: "A comprehensive examination of our unpublished diplomatic records enables me to say that the first Secretary of State to announce the doctrine of expatriation in its fullest extent the doctrine that naturalization in the United States not only clothes the individual with a new allegiance but also absolves him from the obligations to the old was James Buchanan." In 1848, writing to the American minister in London, Buchanan said: "We can recognize no difference between the one and the other, nor can we permit this to be done without protesting and remonstrating against it in the strongest terms. The subjects of other countries who from choice have abandoned their native land, and, accepting the invitation which our laws present, have emigrated to the United States and become American citizens, are entitled to the very same rights and privileges as if they had been born in the country. To treat them in a different manner would be a violation of our plighted faith as well as our solemn duty." 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.7 The enforcement, or rather the attempted enforcement, of this legislative declaration has led the diplomatic branch of our government 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. 8 9 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,1o Inglis v. Sailor's Snug Harbor," Shanks v. Dupont,' 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,14 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 Nether lands.)" 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. |