The repeal by Congress of the ''self-executing'' clauses of a treaty as ''law of the land'' does not of itself terminate the treaty as an international contract, although it may very well provoke the other party to the treaty to do so. Hence, the questions arise where the Constitution lodges this power and where it lodges the power to interpret the contractual provisions of treaties. The first case of outright abrogation of a treaty by the United States occurred in 1798, when Congress by the Act of July 7 of that year, pronounced the United States freed and exonerated from the stipulations of the Treaties of 1778 with France. 349 This act was followed two days later by one authorizing limited hostilities against the same country; in the case of Bas v. Tingy, 350 the Supreme Court treated the act of abrogation as simply one of a bundle of acts declaring ''public war'' upon the French Republic.
Termination of Treaties by Notice .--Typically, a treaty provides for its termination by notice of one of the parties, usually after a prescribed time from the date of notice. Of course, treaties may also be terminated by agreement of the parties, or by breach by one of the parties, or by some other means. But it is in the instance of termination by notice that the issue has frequently been raised: where in the Government of the United States does the Constitution lodge the power to unmake treaties? 351 Reasonable arguments may be made locating the power in the President alone, in the President-and-Senate, or in the Congress. Presidents generally have asserted the foreign relations power reposed in them under Article II and the inherent powers argument made in Curtiss-Wright. Because the Constitution requires the consent of the Senate for making a treaty, one can logically argue that its consent is as well required for terminating it. Finally, because treaties are, like statutes, the supreme law of the land, it may well be argued that, again like statutes, they may be undone only through law-making by the entire Congress; additionally, since Congress may be required to implement treaties and may displace them through legislation, this argument is reenforced.
Definitive resolution of this argument appears remotely possible. Historical practice provides support for all three arguments, and the judicial branch seems unlikely to essay any answer.
While abrogation of the French treaty, mentioned above, is apparently the only example of termination by Congress through a public law, many instances may be cited of congressional actions mandating terminations by notice of the President or changing the legal environment so that the President is required to terminate. The initial precedent in the instance of termination by notice pursuant to congressional action appears to have occurred in 1846, 352 when by joint resolution Congress authorized the President at his discretion to notify the British government of the abrogation of the Convention of August 6, 1827, relative to the joint occupation of the Oregon Territory. As the President himself had requested the resolution, the episode is often cited to support the theory that international conventions to which the United States is a party, even those terminable on notice, are terminable only through action of Congress. 353 Subsequently, Congress has often passed resolutions denouncing treaties or treaty provisions, which by their own terms were terminable on notice, and Presidents have usually, though not invariably, carried out such resolutions. 354 By the La Follette- Furuseth Seaman's Act, 355 President Wilson was directed, ''within ninety days after the passage of the act, to give notice to foreign governments that so much of any treaties as might be in conflict with the provisions of the act would terminate on the expiration of the periods of notice provided for in such treaties,'' and the required notice was given. 356 When, however, by section 34 of the Jones Merchant Marine Act of 1920, the same President was authorized and directed within ninety days to give notice to the other parties to certain treaties, with which the Act was not in conflict but which might restrict Congress in the future from enacting discriminatory tonnage duties, President Wilson refused to comply, asserting that he ''did not deem the direction contained in section 34 . . . an exercise of any constitutional power possessed by Congress.'' 357 The same attitude toward section 34 was continued by Presidents Harding and Coolidge. 358
Very few precedents exist in which the President terminated a treaty after obtaining the approval of the Senate alone. The first occurred in 1854-1855, when President Pierce requested and received Senate approval to terminate a treaty with Denmark. 359 When the validity of this action was questioned in the Senate, the Committee on Foreign Relations reported that the procedure was correct, that prior full-Congress actions were incorrect, and that the right to terminate resides in the treaty-making authorities, the President and the Senate. 360
Examples of treaty terminations in which the President acted alone are much disputed with respect both to facts and to the underlying legal circumstances. 361 Apparently, President Lincoln was the first to give notice of termination in the absence of prior congressional authorization or direction, and Congress shortly thereafter by joint resolution ratified his action. 362 The first such action by the President, with no such subsequent congressional action, appears to be that of President McKinley in 1899, in terminating an 1850 treaty with Switzerland, but the action may be explainable as the treaty being inconsistent with a subsequently enacted law. 363 Other such renunciations by the President acting on his own have been similarly explained, and similarly the explanations have been controverted. While the Department of State, in setting forth legal justification for President Carter's notice of termination of the treaty with Taiwan, cited many examples of the President acting alone, many of these are ambiguous and may be explained away by, i.e., conflicts with later statutes, changed circumstances, or the like. 364
No such ambiguity accompanied President Carter's action on the Taiwan treaty, 365 and a somewhat lengthy Senate debate was provoked. In the end, the Senate on a preliminary vote approved a ''sense of the Senate'' resolution claiming for itself a consenting role in the termination of treaties, but no final vote was ever taken and the Senate thus did not place itself in conflict with the President. 366 However, several Members of Congress went to court to contest the termination, apparently the first time a judicial resolu tion of the question had been sought. A divided Court of Appeals, on the merits, held that presidential action was sufficient by itself to terminate treaties, but the Supreme Court, no majority agreeing on a common ground, vacated that decision and instructed the trial court to dismiss the suit. 367 While no opinion of the Court bars future litigation, it appears that the political question doctrine or some other rule of judicial restraint will leave such disputes to the contending forces of the political branches. 368
Determination Whether a Treaty Has Lapsed .--At the same time, there is clear judicial recognition that the President may without consulting Congress validly determine the question whether specific treaty provisions have lapsed. The following passage from Justice Lurton's opinion in Charlton v. Kelly 369 is pertinent: ''If the attitude of Italy was, as contended, a violation of the obligation of the treaty, which, in international law, would have justified the United States in denouncing the treaty as no longer obligatory, it did not automatically have that effect. If the United States elected not to declare its abrogation, or come to a rupture, the treaty would remain in force. It was only voidable, not void; and if the United States should prefer, it might waive any breach which in its judgment had occurred and conform to its own obligation as if there had been no such breach. . . . That the political branch of the Government recognizes the treaty obligation as still existing is evidenced by its action in this case. . . . The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant as one imposed by the treaty as the supreme law of the land as affording authority for the warrant of extradition.'' 370 So also it is primarily for the political departments to determine whether certain provisions of a treaty have survived a war in which the other contracting state ceased to exist as a member of the international community. 371
Status of a Treaty a Political Question .--At any rate, it is clear that many questions which arise concerning a treaty are of a political nature and will not be decided by the courts. In the words of Justice Curtis in Taylor v. Morton: 372 It is not ''a judicial question, whether a treaty with a foreign sovereign has been violated by him; whether the consideration of a particular stipulation in a treaty, has been voluntarily withdrawn by one party, so that it is no longer obligatory on the other; whether the views and acts of a foreign sovereign, manifested through his representative have given just occasion to the political departments of our government to withhold the execution of a promise contained in a treaty, or to act in direct contravention of such promise. . . . These powers have not been confided by the people to the judiciary, which has no suitable means to exercise them; but to the executive and the legislative departments of our government. The y belong to diplomacy and legislation, and not to the administration of existing laws and it necessarily follows that if they are denied to Congress and the Executive, in the exercise of their legislative power, they can be found nowhere, in our system of government.'' Chief Justice Marshall's language in Foster v. Neilson 373 is to the same effect.
In the early cases of Cherokee Nation v. Georgia, 374 and Worcester v. Georgia, 375 the Court, speaking by Chief Justice Marshall, held, first, that the Cherokee Nation was not a sovereign state within the meaning of that clause of the Constitution which extends the judicial power of the United States to controversies ''between a State or the citizens thereof and foreign states, citizens or subjects.'' Second, it held: ''The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, had adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.'' 376
Later cases established that the power to make treaties with the Indian tribes was coextensive with the power to make treaties with foreign nations, 377 that the States were incompetent to interfere with rights created by such treaties, 378 that as long as the United States recognized the national character of a tribe, its members were under the protection of treaties and of the laws of Congress and their property immune from taxation by a State, 379 that a stipulation in an Indian treaty that laws forbidding the introduction, of liquors into Indian territory was operative without legislation, and binding on the courts although the territory was within an organized county of a State, 380 and that an act of Congress contrary to a prior Indian treaty repealed it. 381
Present Status of Indian Treaties .--Today, the subject of Indian treaties is a closed account in the constitutional law ledger. By a rider inserted in the Indian Appropriation Act of March 3, 1871, it was provided ''That hereafter no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty: Provided, further, that nothing herein contained shall be construed to invalidate or impair the obligation of any treaty heretofore lawfully made and ratified with any such Indian nation or tribe.'' 382 Subsequently, the power of Congress to withdraw or modify tribal rights previously granted by treaty has been invariably upheld. Thus the admission of Wyoming as a State was found to abrogate, pro tanto, a treaty guaranteeing certain Indians the right to hunt on unoccupied lands of the United States so long as game may be found thereon and to bring hunting by the Indians within the police power of the State. 383 Similarly, statutes modifying rights of members in tribal lands, 384 granting a right of way for a railroad through lands ceded by treaty to an Indian tribe, 385 or extending the application of revenue laws respecting liquor and tobacco over Indian territories, despite an earlier treaty exemption, 386 have been sustained.
When, on the other hand, definite property rights have been conferred upon individual Native Americans, whether by treaty or under an act of Congress, they are protected by the Constitution to the same extent and in the same way as the private rights of other residents or citizens of the United States. Hence it was held that certain Indian allottees under an agreement according to which, in part consideration of their relinquishment of all their claim to tribal property, they were to receive in severalty allotments of lands which were to be nontaxable for a specified period, acquired vested rights of exemption from State taxation which were protected by the Fifth Amendment against abrogation by Congress. 387
A regular staple of each Term's docket of the Court is one or two cases calling for an interpretation of the rights of Native Americans under some treaty arrangement vis-a-vis the Federal Government or the States. Thus, though no treaties have been negotiated for decades and none presumably ever will again, litigation concerning old treaties seemingly will go on.
[Footnote 349] 1 Stat. 578 (1798).
[Footnote 350] 4 Dall. (4 U. S.) 37 (1800). See also Gray v. United States, 21 Ct. Cl. 340 (1886), with respect to claims arising out of this situation.
[Footnote 351] The matter was most extensively canvassed in the debate with respect to President Carter's termination of the Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). See, e.g., the various views argued in Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979). On the issue generally, see Restatement, Foreign Relations, op. cit., n.262, Sec. 339; CRS Study, 158-167; L. Henkin, op. cit., n.315, 167-171; Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties--The Original Intent of the Framers of the Constitution Historically Examined, 55 Wash. L. Rev. 1 (1979); Berger, The President's Unilateral Termination of the Taiwan Treaty, 75 Nw. U. L. Rev. 577 (1980).
[Footnote 352] Compare the different views of the 1846 action in Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 160-162 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), and in Taiwan, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 300 (memorandum of Senator Goldwater).
[Footnote 353] S. Crandall, op. cit., n.264, 458-459.
[Footnote 354] Id., 459-462; Q. Wright, op. cit., n.302, 258.
[Footnote 355] 38 Stat. 1164 (1915).
[Footnote 357] 41 Stat. 1007. See Reeves, The Jones Act and the Denunciation of Treaties, 15 Am. J. Int'l. L. 33 (1921). In 1879, Congress passed a resolution requiring the President to abrogate a treaty with China, but President Hayes vetoed it, partly on the ground that Congress as an entity had no role to play in ending treaties, only the President with the advice and consent of the Senate. 9 J. Richardson, op. cit., n.42, 4466, 4470-4471. For the views of President Taft on the matter in context, see W. Taft, The Presidency, Its Duties, Its Powers, Its Opportunities and Its Limitations (New York: 1916), 112- 113.
[Footnote 358] Since this time, very few instances appear in which Congress has requested or directed termination by notice, but they have resulted in compliance. E.g., 65 Stat. 72 (1951) (directing termination of most-favored-nation provisions with certain Communist countries in commercial treaties); 70 Stat. 773 (1956) (requesting renunciation of treaty rights of extraterritoriality in Morroco). The most recent example appears to be Sec. 313 of the Anti-Apartheid Act of 1986, which required the Secretary of State to terminate immediately, in accordance with its terms, the tax treaty and protocol with South Africa that had been concluded on Decemberr 13, 1946. P. L. 99-440, 100 Stat. 3515, 22 U.S.C. Sec. 5063.
[Footnote 359] 5 J. Richardson, op. cit., n.42, 279, 334.
[Footnote 360] S. Rept. No. 97, 34th Congress, 1st sess. (1856), 6-7. The other instance was President Wilson's request, which the Senate endorsed, for termination of the International Sanitary Convention of 1903. See 61 Cong. Rec. 1793-1794 (1921). See CRS Study, op. cit., n.262, 161-162.
[Footnote 361] Compare, e.g., Treaty Termination, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 156-191 (memorandum of Hon. Herbert Hansell, Legal Advisor, Department of State), with Taiwan, Hearings before the Senate Committee on Foreign Relations, 96th Congress, 1st sess. (1979), 300-307 (memorandum of Senator Goldwater). See CRS Study, op. cit., n.262, 164-166.
[Footnote 362] 13 Stat. 568 (1865).
[Footnote 363] The treaty, see 11 C. Bevans, Treaties and Other International Agreements of the United States of America (Washington: 1970), 894, was probably at odds with the Tariff Act of 1897. 30 Stat. 151.
[Footnote 364] Compare the views expressed in the Hansell and Goldwater memoranda, op. cit., n.361. For expressions of views preceding the immediate controversy, see, e.g., Riesenfeld, The Power of Congress and the President in International Relations, 25 Calif. L. Rev. 643, 658-665 (1937); Nelson, The Termination of Treaties and Executive Agreements by the United States, 42 Minn. L. Rev. 879 (1958).
[Footnote 365] Note that the President terminated the treaty in the face of an expression of the sense of Congress that prior consultation between President and Congress should occur. 92 Stat. 730, 746 (1978).
[Footnote 366] Originally, S. Res. 15 had disapproved presidential action alone, but it was amended and reported by the Foreign Relations Committee to recognize at least 14 bases of presidential termination. S. Rept. No. 119, 96th Congress, 1st sess. (1979). In turn, this resolution was amended to state the described sense of the Senate view, but the matter was never brought to final action. See 125 Cong. Rec. 13672, 13696, 13711, 15209, 15859 (1979).
[Footnote 367] Goldwater v. Carter, 617 F.2d 697 (D.C.Cir.) (en banc), vacated and remanded, 444 U.S. 996 (1979). Four Justices found the case nonjusticiable because of the political question doctrine, id., 1002, but one other Justice in the majority and one in dissent rejected this analysis. Id., 998 (Justice Powell), 1006 (Justice Brennan). The remaining three Justices were silent on the doctrine.
[Footnote 370] Id., 473-476.
[Footnote 372] 23 Fed. Cas. 784 (No. 13,799) (C.C.D. Mass. 1855).
[Footnote 373] 27 U.S. (2 Pet.) 253, 309 (1829). Baker v. Carr, 369 U.S. 186 (1962), qualifies this certainty considerably, and Goldwater v. Carter, 444 U.S. 996 (1979), prolongs the uncertainty. See L. Henkin, op. cit., n.315, 208-216; Restatement, Foreign Relations, op. cit., n.262, Sec. 326.
[Footnote 376] Id., 558.
[Footnote 382] 16 Stat. 566; Rev. Stat. Sec. 2079, now contained in 25 U.S.C. Sec. 71.
[Footnote 387] Choate v. Trapp, 224 U.S. 665, 677 -678 (1912); Jones v. Meehan, 175 U.S. 1 (1899). See also Hodel v. Irving, 481 U.S. 704 (1987) (section of law providing for escheat to tribe of fractionated interests in land representing less than 2% of a tract's total acreage violates Fifth Amendment's taking clause by completely abrogating rights of intestacy and devise).