The genesis of this clause was in the report of the Committee of Detail which vested the power to resolve such land disputes in the Senate, 1021 but this proposal was defeated in the Convention, 1022 which then added this clause to the jurisdiction of the federal judiciary without reported debate. 1023 The motivation for this clause was the existence of boundary disputes affecting ten States at the time the Convention met. With the adoption of the North west Ordinance of 1787, the ultimate settlement of the boundary disputes, and the passing of land grants by the States, this clause, never productive of many cases, became obsolete. 1024
The scope of this jurisdiction has been limited both by judicial decisions and the Eleventh Amendment. By judicial application of the law of nations, a foreign state is immune from suit in the federal courts without its consent, 1025 an immunity which extends to suits brought by States of the American Union. 1026 Conversely, the Eleventh Amendment has been construed to bar suits by foreign states against a State of the United States. 1027 Consequently, the jurisdiction conferred by this clause comprehends only suits brought by a State against citizens or subjects of foreign states, by foreign states against American citizens, citizens of a State against the citizens or subjects of a foreign state, and by aliens against citizens of a State. 1028
Suits by Foreign States .--The privilege of a recognized foreign state to sue in the courts of another state upon the principle of comity is recognized by both international law and American constitutional law. 1029 To deny a sovereign this privilege ''would manifest a want of comity and friendly feeling.'' 1030 Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign state. 1031 As the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit. 1032 Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the court may decide to be a reasonable incident of bringing the suit. 1033 The rule that a foreign nation instituting a suit in a federal district court cannot invoke sovereign immunity as a defense to a counterclaim growing out of the same transaction has been extended to deny a claim of immunity as a defense to a counterclaim extrinsic to the subject matter of the suit but limited to the amount of the sovereign's claim. 1034 Moreover, certain of the benefits extending to a domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. A foreign state does not receive the benefit of the rule which exempts the United States and its member States from the operation of the statute of limitations, because those considerations of public policy back of the rule are regarded as absent in the case of the foreign sovereign. 1035
Indian Tribes .--Within the terms of Article III, an Indian tribe is not a foreign state and hence cannot sue in the courts of the United States. This rule was applied in the case of Cherokee Nation v. Georgia, 1036 where Chief Justice Marshall conceded that the Cherokee Nation was a state, but not a foreign state, being a part of the United States and dependent upon it. Other passages of the opinion specify the elements essential of a foreign state for purposes of jurisdiction, such as sovereignty and independence.
Narrow Construction of the Jurisdiction .--As in cases of diversity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809, the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as ''late of the district of Maryland,'' but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom. 1037 The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed Sec. 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction when an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party. 1038 This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit. 1039 These rules, however, do not preclude a suit between citizens of the same State if the plaintiffs are merely nominal parties and are suing on behalf of an alien. 1040
[Footnote 1021] 2 M. Farrand, op. cit., n. 1, 162, 171, 184.
[Footnote 1022] Id., 400-401.
[Footnote 1023] Id., 431.
[Footnote 1025] The Schooner Exchange v. McFaddon, 11 U.S. (7 Cr.) 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).
[Footnote 1027] Ibid.
[Footnote 1028] But in the absence of a federal question, there is no basis for jurisdiction between the subjects of a foreign State. Romero v. International Terminal Operating Co., 358 U.S. 354 (1959). The Foreign Sovereign Immunities Act of 1976, P.L. 94-538, 90 Stat. 2891, amending various sections of title 28 U.S.C., comprehensively provided jurisdictional bases for suits by and against foreign states and appears as well to comprehend suits by an alien against a foreign state which would be beyond the constitutional grant. However, in the only case in which that matter has been an issue before it, the Court has construed the Act as creating a species of federal question jurisdiction. Verlinden B. V. v. Central Bank of Nigeria, 461 U.S. 480 (1983).
[Footnote 1030] Ibid. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit or to continue one that has been brought.
[Footnote 1031] Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938), citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley Railroad Company, 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign state is, of course, a political question.
[Footnote 1032] Ex parte Peru, 318 U.S. 578, 589 (1943), distinguishing Compania Espanola v. The Navemar, 303 U.S. 68 (1938), which held that where the Executive Department neither recognizes nor disallows the claim of immunity, the court is free to examine that question for itself. Under the latter circumstances, however, a claim that a foreign vessel is a public ship and immune from suit must be substantiated to the satisfaction of the federal court.
[Footnote 1033] Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938). Among other benefits which the Court cited as not extending to foreign states as litigant included exemption from costs and from giving discovery. Decisions were also cited to the effect that a sovereign plaintiff ''should so far as the thing can be done, be put in the same position as a body corporate.''
[Footnote 1034] National Bank v. Republic of China, 348 U.S. 356, 361 (1955), citing 26 Dept. State Bull. 984 (1952), wherein the Department ''has pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government.''
[Footnote 1035] Guaranty Trust Co. v. United States, 304 U.S. 126, 135 , 137 (1938), citing precedents to the effect that a sovereign plaintiff ''should be put in the same position as a body corporate.''
[Footnote 1039] Coal Co. v. Blatchford, 78 U.S. (11 Wall.) 172 (1871). See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens.