Argument on behalf of the French Government:

“That the privileges of the nationals of the United States of America in Morocco are only those which result from the text of Articles 20 and 21 of the Treaty of September 16th, 1836, and that since the most-favored-nation clause contained in Article 24 of the said treaty can no longer be invoked by the United States in the present state of the international obligations of the Shereefian Empire, there is nothing to justify the granting to the nationals of the United States of preferential treatment which would be contrary to the provisions of the treaties ; That the Government of the United States of America is not entitled to claim that the application of al1 laws and regulations to its nationals in Morocco requires its express consent; That the nationals of the United States of America in Morocco are subject to the laws and regulations in force in the Shereefian Empire and in particuIar the regulation of December 3oth, 1948, on imports not involving an allocation of currency, without the prior consent of the United States Government; That no treaty has conferred on the United States fiscal immunity for its nationals in Morocco, either directly or through the effect of the most-favored-nation clause”

Argument on behalf of the Government of the United States 

“The treaty rights of the United States in Morocco forbid Morocco to impose prohibitions on American imports, Save those specified by the treaties, and these rights are still in full force and effect. 3. The jurisdiction conferred upon the United States by the Treaties of 1787 and 1836 was jurisdiction, civil and criminal, in al1 cases arising between American citizens. In addition, the United States acquired in Morocco jurisdiction in al1 cases in which an American citizen or protégé was defendant through the effect of the most-favored-nation clause and through custom and usage. Such jurisdiction was not affected by the surrender by Great Britain in 1937 of its rights of jurisdiction in the French Zone of Morocco. Such jurisdiction has never been renounced, expressly or impliedly, by the United States. 4. Under the regime of extraterritorial jurisdiction now exercised by the United States in Morocco, United States citizens are not subject, in principle, to the application of Moroccan laws. “The treaty rights of the United States in Morocco forbid Morocco to impose prohibitions on American imports, save those specified by the treaties, and these rights are still in full force and effect.”

“By the Treaty of Commerce with Great Britain of December 8th, 1856, as well as by Treaties with Spain of November 20th, 1861, and with Germany of June ~st, 1890, the Sultan of Morocco guaranteed certain rights in matters of trade, including imports into Morocco. These States, together with a number of other States, including the United States, were guaranteed equality of treatment by virtue of most-favored-nation clauses in their treaties with Morocco. In another Note from the French Ambassador to the Secretary of State, dated November 14th, 1918, it was declared that the benefit of commercial equality in Morocco results, not only from the most-favoured-nation clause, but also from the clause of economic equality which is inserted in the Act of Algeciras and reproduced in the Franco-German Convention of 1911. These various facts show that commercial or economic equality in Morocco was assured to the United States, not only by Morocco but also by France as the protecting State.  This conclusion can also be derived from the Treaty between the United States and Morocco of September r6th, 1836, Article 24, where it is “declared that whatever indulgence, in trade or otherwise, shall be granted to any of the Christian Powers, the citizens of the United States shall be equally entitled to them.”

The Court will now consider the extent of the consular jurisdiction of the United States of America in the French Zone of Morocco. The French Submission in this regard reads as follows:

“That the privileges of the nationals of the United States of America in Morocco are only those which result from the text of Articles 20 and 21 of the Treaty of September 16th, 1836, and that since the most-favored-nation clause contained in Article 24 of the said Treaty can no longer be invoked by the United States in the present state of the international obligations of the Shereefian Empire, there is nothing to justify the granting to the nationals of the United States of preferential treatment which would be “That the privileges of the nationals of the United States of America in Morocco are only those which result from the text of Articles 20 and 21 of the Treaty of September 16th, 1836, and that since the most-favored-nation clause contained in Article 24 of the said Treaty can no longer be invoked by the United States in the present state of the international obligations of the Shereefian Empire, there is nothing to justify the granting to the nationals of the United States of preferential treatment which would be contrary to the provisions of the treaties.”

“The United States Submission concerning consular jurisdiction reads as follows: “3. The jurisdiction conferred upon the United States by the Treaties of 1787 and 1836 was jurisdiction, civil and criminal, in all cases arising between American citizens. In addition, the United States acquired in Morocco jurisdiction in al1 cases in which an American citizen or protégé was a defendant through the effect of the most-favored-nation clause and through custom and usage. Such jurisdiction was not affected by the surrender by Great-Britain in 1937 of its rights of jurisdiction in the French Zone of Morocco. Such jurisdiction has never been renounced, expressly or impliedly, by the United States.”

“There is a common element to be found in the most-favored-nation clauses which have brought about and maintained a situation in which there could be no discrimination as between any of the Powers in Morocco, regardless of specific grants of treaty rights. When the most extensive privileges as regards consular jurisdiction were granted by Morocco to Great Britain in 1856 and to Spain in 1861, these ensured automatically and immediately to the benefit of the other Powers by virtue of the operation of the most-favored-nation clauses.”

“The Treaty of 1836 replaced an earlier treaty between the United States and Morocco which was concluded in 1787. The two treaties were substantially identical in terms and Articles 20 and 21 are the same in both. Accordingly, in construing the provisions of Article 20 -and, in particular, the expression “shall have any dispute with each other it is necessary to take in to account the meaning of the word “dispute at the times when the two treaties were concluded. For this purpose it is possible to look at -the way in which the word “dispute” or its French counterpart was used in the different treaties concluded by Morocco e.g., with France in 1631 and 1682, with Great Britain in 1721, 1750, 1751, 1760 and 1801.”

“It is clear that in these instances the word was used to cover both civil and criminal disputes. It is also necessary to take into account that, at the times of these two treaties, the clear-cut distinction between civil and criminal matters had not yet been developed in Morocco. Accordingly, it is necessary to construe the word “dispute”, as used in Article 20, as referring both to civil disputes and to criminal disputes, in so far as they relate to breaches of the criminal law committed by a United States citizen or protégé upon another’ United States citizen or protégé.” “It is necessary to give special attention to the most-favored-nation clauses of the United States Treaty of 1836.”

“There were two grants of most-favored-nation treatment. Article 14 provides :” The commerce with the United States shall be on the same footing as is the commerce with Spain, or as that with the most favored nation for the time being; and their citizens shall be respected and esteemed, and have full liberty to pass and repass Our country and seaports whenever they please, without interruption.” “Article 24 deals with the contingencies of war, but it contains a final sentence: “…. and it is further declared, that whatever indulgence, in trade or otherwise, shall be granted to any of the Christian Powers, the citizens of the United States shall be equally entitled to them.”

Citing “Case concerning rights of nations of the United States of America in Morocco, Judgment of August 27th, 1952: I.C. J. Reports 1952, p. 176.” See Introduction to Moorish treaties 1662-1856

“The U.S. Government sent its first official communication to the Sultan of Morocco in December 1780. It read: “We the Congress of the 13 United States of North America, have been informed of your Majesty’s favorable regard to the interests of the people we represent, which has been communicated by Monsieur Etienne d’Audibert Caille of Sale, Consul of Foreign nations unrepresented in your Majesty’s states. We assure you of our earnest desire to cultivate a sincere and firm peace and friendship with your Majesty and to make it lasting to all posterity. Should any of the subjects of our states come within the ports of your Majesty’s territories, we flatter ourselves they will receive the benefit of your protection and benevolence. You may assure yourself of every protection and assistance to your subjects from the people of these states whenever and wherever they may have it in their power. We pray your Majesty may enjoy a long life and uninterrupted prosperity.”

Source: History of the U.S. and Morocco

“Decisions of the International Court of Justice (ICJ) interpreting treaties, however, have “no binding force except between the parties and in respect of that particular case.”312 Sanchez-Llamas v. Oregon, 548 U.S. at 354, quoting Statute of the International Court of Justice, Art. 59, 59 Stat. 1062, T.S. No. 933 (1945) (emphasis added by the Court).ICJ decisions “are therefore entitled only to the ‘respectful consideration’ due an interpretation of an international agreement by an international court.”Sanchez-Llamas v. Oregon, 548 U.S. at 355, quoting Breard v. Greene, 523 U.S. 371, 375 (1998) (per curiam).”

“Justice Stevens, concurring, noted that, even though the ICJ decision “is not ‘the supreme Law of the Land,’ U.S. Const., Art VI, cl. 2,” it constitutes an international law obligation not only on the part of the United States, but on the part of the State of Texas. Id. at 1374. This, of course, does not make it enforceable against Texas, but Justice Stevens found that “[t]he cost to Texas of complying with [the ICJ decision] would be minimal.” Id. at 1375. Justice Breyer, joined by Justices Souter and Ginsburg, dissented, writing that “the consent of the United States to the ICJ’s jurisdiction[ ] bind[s] the courts no less than would ‘an act of the [federal] legislature.’” Id. at 1376. Even when an ICJ decision has binding force as between the governments of two nations, it is not necessarily enforceable by the individuals affected. If, for example, the ICJ finds that the United States violated a particular defendant’s rights under international law, and such a decision “constitutes an international law obligation on the part of the United States,” it does not necessarily “constitute binding federal law enforceable in United States courts. . . . [W]hile treaties may comprise international commitments . . . they are not domestic law unless Congress has either enacted implementing statutes or the treaty itself conveys an intention that it be self-executing and is ratified on these terms.”

Source: The United States and the International Court of Justice: Coping with Antinomies Sean D. Murphy

“In the spirit of institutionalism, ICJ judgments in contentious cases are binding on the parties, final, and without appeal. See, e.g., Robert O. Keohane et al., Legalized Dispute Resolution: Interstate and Transnational, 54 Int’l Org. 457, 458 (2000). Among other things, it has led to the acknowledgment that final judgments of the International Court are binding as a matter of international law, but to assertions by the Executive Branch that such judgments have no direct effect within the national legal system. Second, although treaties are recognized by our Constitution as the supreme law of the land, that status is no less true of provisions of the Constitution itself, to which rules of procedural default apply. We have held “that an Act of Congress . . . is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.” Reid v. Covert, 354 U.S. 1, 18 (1957) (plurality opinion) . . . .”

Source: The United States and the International Court of Justice: Coping with Antinomies Sean D. Murphy

“When interpreting treaties, “[courts] must be governed by the text — solemnly adopted by the governments of . . . separate nations.” Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 134, 109 S.Ct. 1676, 1683, 104 L.Ed.2d 113 (1989). “To alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on [the] part [of courts] an usurpation of power, and not an exercise of judicial functions.” Id. at 135, 109 S.Ct. at 1684 (quoting The Amiable Isabella, 6 Wheat 1, 71 (1821)).”

“Altering the meaning of treaty language also eventually would render the art of treaty draftsmanship obsolete and diminish the ability of a country to rely on the very words for which it negotiated. See id. at 133, 109 S.Ct. at 1683. Fleming v. Yamaha Motor Corp.”

“(a) The Supremacy Clause, of its own force, does not create rights enforceable under § 1983. The Clause “is not a source of any federal rights”; rather, it “secure[s]’ federal rights by according them priority whenever they come in conflict with state law.” Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 441 U. S. 613. Pp.493 U. S. 107-108.  See Golden St. Trans. v. Los Angeles, 493 U.S. 103 (1989)”

“In that sense, all federal rights, whether created by treaty, by statute, or by regulation, are ‘secured’ by the Supremacy Clause. Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.’ Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777 (footnote omitted); see Bemis Bros.Bag Co. v. United States, 289 U.S. 28, 36, 53 S.Ct. 454, 457, 77 L.Ed. 1011 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433, 42 S.Ct. 159, 161, 66 L.Ed. 299 (1922) (Holmes, J.).

Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice. The state courts may deal with that as they think proper in local matters but they cannot treat it as defeating a plain assertion of Federal right. The principle is general and necessary. Ward v. Love County, 253 U.S. 17, 22, 40 S. Sup. Ct. 419. See Davis v. Wechsler 263 U.S. 22 (1923)

“Where  rights  secured  by the  Constitution are involved, there can be no rulemaking or legislation which would abrogate them.”  See Miranda v. Arizona, 384 US 436, 491.”

“The very fact of repeated treaties with them recognizes it, and the settled doctrine of the law of nations is that a weaker power does not surrender its independence — it’s right to self-government — by associating with a stronger and taking protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government and ceasing to be a state. Examples of this kind are not wanting in Europe. “Tributary and feudal states,” says Vattel. See Worcester v. Georgia, 31 U.S. 515 (1832)”

“Breard v. Pruett 134 F.3d 615 (4th Cir. 1998) (Stating that…a self-executing treaty — provides rights to individuals rather than merely setting out the obligations of signatories.) When interpreting a treaty, we “first look to its terms to determine its meaning.” United States v. Alvarez-Machain, 504 U.S. 655, 663, 112 S.Ct. 2188, 119 L.Ed.2d 441 (1992).”

“When the text is ambiguous or unclear, we turn to nontextual sources for guidance. See United States v. Li, 206 F.3d 56, 63 (1st Cir. 2000) (en banc); Tabion v. Mufti, 73 F.3d 535, 537-538 (4th Cir. 1996). When looking at nontextual sources, we are reminded that “[a]lthough not conclusive, the meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U.S. 176, 184-185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982); see also Iceland Steamship Co. v. United States Dep’t of the Army, 201 F.3d 451, 458 (D.C. Cir. 2000) (giving “great weight” to the State Department’s interpretation of a U.S.-Iceland defense treaty).”

“Therefore, because the State Department is charged with the responsibility of enforcing the Vienna Convention, we give “[s]ubstantial deference” to the State Department’s interpretation of that treaty’s provisions. Tabion, 73 F.3d at 538; see also Li, 206 F.3d at 63. U.S. v. Al-Hamdi 356 F.3d 564 (4th Cir. 2004) See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829) (stating that a treaty must “be regarded in courts of justice as equivalent to an act of the legislature”).”

“Murphy v. Netherland 116 F.3d 97 (4th Cir. 1997) Treaties are contracts between sovereigns, and as such, should be construed to give effect to the intent of the signatories. United States v. Stuart, 489 U.S. 353, 365-66 (1989); Nielsen v. Johnson, 279 U.S. 47, 51 (1929). The court should look at the treaty’s language, considering the context in which the words were used. Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991).”

“Treaties generally are liberally construed: courts “may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties” to ascertain the meaning of a difficult or unclear passage. Id. at 535 (internal quotation omitted); see also Nielsen, 279 U.S. at 51-52. Tabion v. Mufti 73 F.3d 535 (4th Cir. 1996)”

The district court recognized that “ ‘[t]reaties are proper evidence of customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the States parties to them.’ ” Hasan I, 747 F.Supp.2d at 633 (quoting Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 137 (2d Cir.2010)).”

“According to the court, “[w]hile all treaties shed some light on the customs and practices of a state, ‘a treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles.’ ” Id. (emphasis omitted) (quoting Kiobel, 621 F.3d at 137).”

“In this regard,” the court emphasized, “it is also important to understand that a treaty can either ‘embod[y] or create[ ] a rule of customary international law,’ and such a rule ‘applies beyond the limited subject matter of the treaty and to nations that have not ratified it.’ ” Id. (alterations in original) (quoting Kiobel, 621 F.3d at 138), citing United States v. Dire 680 F.3d 446 (4th Cir. 2012)”

“To alter, amend, or add to any treaty, by inserting any clause, whether small or great, important or trivial, would be on [the] part [of courts] a usurpation of power, and not an exercise of judicial functions.” Id. at 135, 109 S.Ct. at 1684 (quoting The Amiable Isabella, 6 Wheat 1, 71 (1821)).”

See Usurpation of Treaty, Constitutional and Legislative Power by the Courts

“Fulfilling the Equal Justice Clause of Moorish Treaties of The United States Is A Compelling Interest. See Gibson v. Bruce Babbitt – Court of Appeals – 11th Circuits the Federal Courts agreed that the obligation of the United States to fulfill pre-existing treaty commitments was a Compelling Interest. For our primary duty is to apply and enforce settled law, not to revise that law to accord with our own notions of sound policy. U.S. Supreme Court Correctional Services Corp. v Malesko 534 U.S. 61 (2001) Decided Nov. 27, 2001.”

“See Paul Charlton v. James Kelly, 229 U.S. 447, 459 (U.S. 1913) in connection with § 5270, Revised Statutes, which is applicable to all treaties. Every requirement of the law, whether it appears in the treaty or in the act of Congress, was substantially complied with. A construction of a treaty by the political department of the government, while not conclusive upon a court called upon to construe such a treaty in a matter involving personal rights, is nevertheless of much weight. Section 25 of the Act of Sept. 24, 1789, 1 Stat. 85-86, as the First Judiciary Act was also known, provided for review only if the validity of a treaty or of a federal or state statute or “authority,” or the construction of a federal treaty, statute, or commission of the Constitution was drawn in question, and then only if “the decision [was] against their validity” or “against the title, right, privilege or exemption” claimed.”

“By virtue of the supremacy clause, the treaty overrides state methods…United States Court of Appeals Third Circuit DeJames v. Magnificence Carriers, Inc. 654 F.2d 280 (3d Cir. 1981) Decided July 23, 1981.”

“The Supreme Court has recognized that treaties can in some circumstances create individually enforceable rights. See United States v. Alvarez-Machain, 504 U.S. 655, 659-60 (1992). See Chapman v. Houston Welfare Rights Organization Gonzalez v. Young, 441 U.S. 600, 612 (U.S. 1979)”

“For even though that Clause is not a source of any federal rights, it does ‘secure’ federal rights by according them priority whenever they come in conflict with state law. 29 In that sense, all federal rights, whether created by treaty, by statute, or by regulation, are ‘secured’ by the Supremacy Clause. Where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief.’ Bell v. Hood, 327 U.S., at 684, 66 S.Ct., at 777 (footnote omitted); see Bemis Bros. Bag Co. v. United States, 289 U.S. 28, 36, 53 S.Ct. 454, 457, 77 L.Ed. 1011 (1933) (Cardozo, J.); The Western Maid, 257 U.S. 419, 433, 42 S.Ct. 159, 161, 66 L.Ed. 299 (1922) (Holmes, J.).”

“The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 US 22, at 24 “Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them.” Miranda v. Arizona, 384 US 436, 491.”

“The claim and exercise of a constitutional right cannot be converted into a crime.” Miller v. US, 230 F 486, at 489. There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights.” Sherer v. Cullen, 481 F 946.”

“Judge Aldisert was not only correct in recognizing in Brawer v. Horowitzthat the Department of Justice could undertake to protect private rights in which the United States had a governmental interest; he was acting consistently with historical precedent antedating the Department of Justice Act by 30 years. In 1841, when Daniel Webster was Secretary of State, he directed the United States Attorney to appear on behalf of Alexander McLeod, a Canadian militiaman indicted by the State of New York for murder in the death of a New Yorker who was running guns to the Canadian insurrectionists of 1837. The United States was interested in McLeod’s defense because his prosecution was a matter interfering with Webster’s efforts to negotiate a treaty settling a boundary dispute. Webster not only arranged for the United States to defend McLeod, but to guard the courthouse with federal troops to prevent violence. See People v. McLeod, 25 Wend. 483 (N.Y.1841), I. H. Bartlett, Daniel Webster, 178, 191, 192 (1978).”

“The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U.S. 491, 506 (2008). “We also take into account the signatories’ intentions and expectations.” Yaman v. Yaman, 919 F. Supp. 2d 189, F.3d, No.13-1240, 2013 WL 4827587, at *7 (1st Cir. Sept. 11, 2013).”

“Further, “[i]t is well settled that the Executive Branch’s interpretation of a treaty ‘is entitled to great weight.'” Abbott v. Abbott, 130 S. Ct. 1983, 1993 (2010) (quoting Sumitomo ShojiAm., Inc. v. Avagliano, 457 U.S. 176, 185 (1982)) See United States v. Kin-Hong, 110 F.3d 103, 106 (1st Cir. 1997) (“[S]eparation of powers principles . . . preclude us from rewriting the treaties which the President and the Senate have approved.”).”

“One similar case can be found in James Hagey’s, 93 Muslim slaves, Abducted Moors, African Jews, Misnamed Turks from Carologue a publication of the South Carolina Historical Society. This work is particularly interesting because this incident also took place in the state of South Carolina around the same time that the Sundry petition was submitted. “In 1786 two Muslim men appeared in Charleston, SC “dressed in the Moorish habit” and aroused a great deal of suspicion by their strange ways. An officer of the law attempted to question them and found they were Moors who did not speak English. They were taken to an interpreter who found out they came from Algeria and sailed to Virginia where they had been arrested. Then they traveled overland to South Carolina …”

“In the same work by Hagey, he mentions an earlier situation involving Moors in South Carolina, “March 3, 1753, Muslims from North Africa, appear in the records of South Carolina. In the South Carolina Council Journal, No. 21, Pt. 1, pp. 298-299. Two men by the name Abel Conder and Mahamut (Mahomet) petitioned the South Carolina royal authorities in Arabic for their freedom. They came from Asilah (Sali) on the Barbary Coast of Morroco. Their story is that they were in a battle in 1736, with the Portuguese when they lost the battle and was captured. An officer named Captain Henry Daubrib, asked them would they be willing to serve him for five years in Carolina. When they arrived in South Carolina they were transferred to Daniel LaRoche, who then enslaved them for fifteen years until 1753.”

“The Moslem legal system is a system of unquestionable originality. Its autonomy is evident, as a legal system largely governed by the distinctive character of a social community very different from that in which other legal systems have reached normative maturity. The International Congress on Comparative Law which was held at The Hague in 1932 decided that Moslem Law is an entirely independent source of comparative law. In 1938 when the question of the relationship between Roman Law and Moslem Law was brought to the consideration of the Second Congress on Comparative Law, the Congress stated explicitly that Moslem Law was an autonomous legal system that did not depend on other established systems.”

“The Court discussed whether individuals have the standing to invoke treaty-based rights, and acknowledged that typically they do not. Id. at 1533. However, it also noted that if a treaty expressly or impliedly provides a private right of action, it is self-executing and can be invoked by the individual. Id. at 1533 (citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. at 253-54, 28 L.Ed. 798 (1884))”

“Treaties are as binding within the territorial limits of the United States as they are elsewhere throughout the dominion of the United States. Baldwin v. Franks, 120 U.S. 678, 7 S. Ct. 656, 32 L. Ed. 766 (1887)”

“Treaties are binding not only upon the government but upon every citizen. Kennett v. Chamber, 55 U.S. 38, 14 How. 38, 14 L. Ed.316 (1852).”

“The provision of the treaty supersedes and renders nugatory all conflicting provisions in the laws or constitution of any state. Clark v. Allen, 331 U.S. 503, 67 S. Ct. 1431, 91 L. Ed. 1633, 170 A.L.R. 953 (1947).”

“Treaties are “not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers but are to be construed in the sense in which naturally the Indians [aboriginals] would understand them.” United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938).”

“A cardinal rule in the interpretation of a document is that words and phrases be given “the natural meaning or that meaning most commonly understood when considered in reference to subject matter and circumstances.” Rupp Hotel Operating Co. v. Donn, 29 So.2d 441 (Fla. 1947).”

“Thus, the effect of a treaty is not to nullify a conflicting statue, but rather to suspend its application to a citizen or subject of the country with which the treaty is made. Ahrens v. Ahrens, 144 Iowa 48, 123 N.W. 14 (1909).”

“A Self-executing Treaty is a municipal law as well as an international contract Foster v. Neilson, 27 U.S. 253, 7 L. Ed. 415 (1829).”

“The Supreme Court has already explained that courts of law are required to interpret treaties as any other contract by giving effect to the intent of the parties as manifested by the terms thereof. Zscher More specifically, in Seufert Bros. v. Hoptowit et al, 193 Or 317, 322-23, 237 P2d 949 (1951), cert den, 343 US 926 (1952).”

“In Jim, 178 Or App at 556, we explained that “[t]he criminal jurisdiction of the state, the federal government, and the Indian [aboriginals] nations is a complex matter that may depend on the nature of the crime, the location of its commission, and the nationalities of the defendant and any victims.”

“With regard to treaties, the United States Supreme Court has stated that it is the settled policy of the United States to deal fairly with Indian [aboriginals] tribes. Treaties are “not to be interpreted narrowly, as sometimes may be writings expressed in words of art employed by conveyancers but are to be construed in the sense in which naturally the Indians [aboriginals] would understand them.” United States v. Shoshone Tribe, 304 U.S. 111, 116 (1938).”

“Words having a definite legal meaning that are intentionally used should be given the definite legal meaning. Langley v. Owens, 42 So. 457 (Fla. 1906).”

“It is reasonable to conclude therefore that the Indians [aboriginals] in 1960 would have understood that tribal lands meant something similar to those lands already held in trust as formal reservations. “It is well established that, in construing a treaty between the United States and Indians [aboriginals], the courts will construe it liberally in favor of the Indians [aboriginal], and in the sense in which its provisions would naturally be understood by the Indians [aboriginals]. However, despite this rule of liberal construction, treaties cannot be rewritten or expanded beyond their clear terms, and the obvious, palpable meaning of their words cannot be disregarded, in order to achieve the asserted understanding of the parties. Of course, treaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties. Especially is this true in interpreting treaties and agreements with the Indians [aboriginals]; they are to be construed, so far as possible, in the sense in which the Indians [aboriginals] understood them, and in a spirit which generously recognizes the full obligation of this nation to protect the interests of a dependent people. But even Indian [aboriginals] treaties cannot be rewritten or expanded beyond their clear terms to remedy a claimed injustice or to achieve the asserted understanding of the parties.” (Citations and internal quotation marks omitted.) See also Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n, 443 US 658, 675, 99 S Ct 3055, 61 L Ed 2d 823 (1979)”

“(“A treaty, including one between the United States and an Indian tribe, is essentially a contract between two sovereign nations. When the signatory nations have not been at war and neither is vanquished, it is reasonable to assume that they negotiated as equals at arm’s length.” (Citation omitted.) ; Antoine, 420 US at 199-200 (treaty must be interpreted by liberally construing any ambiguities in the text in favor of the tribe). Treaty interpretation, then, is a form of contract interpretation. When interpreting a contract, we first examine the text and context to determine if the contract provision is ambiguous. Berry v. Lucas, 210 or App 334, 338, 150 P3d 424 (2006). A contract is ambiguous if it is susceptible to more than one reasonable interpretation. Batzer Construction, Inc. v. Boyer, 204 Or App 309, 313, 129 P3d 773, rev den, 341 Or 366 (2006). At that first level, we also consider extrinsic evidence of “the circumstances underlying the formation of the contract.” Id. at 317. Finally, if the “provision remains ambiguous after the first two steps have been followed, the court relies on appropriate maxims of construction” to determine the provision’s meaning. Yogman v. Parrott, 325 Or 358, 364, 937 P2d 1019 (1997).”

“In general, one of those maxims is that ambiguous language in a contract is construed against the drafter. Berry, 210 or App at 339. The analog in construing treaties between the United States and Native Americans is, as the court stated in Seufert Bros., that ambiguities should be construed in favor of the Native Americans, at least when the treaty terms are drafted by the United States. 193 Or at 323.”

“The Treaty-Making Power And The Reserved Rights Of The States – The supremacy of a federal treaty over a conflicting state law, with reference to matters not reserved to the States, has not been questioned since the time it was established that a federal statute, enacted within either the concurrent or exclusive constitutional competency of Congress, operates to nullify all inconsistent state legislation. In this respect, as the Constitution expressly declares, treaties and acts of Congress are upon precisely the same footing.”

“In Ware v. Hylton, 7 decided in 1796, Justice Chase says: “There can be no limitation on the power of the people of the United States. By their authority the state constitutions we made, and by their authority, the Constitution of the United States was established; and they had the power to change or abolish the state constitutions, or to make them yield to the General Government and to Treaties made by their authority. It is the declared will of the people of the United States that every treaty made by the authority of the United States shall be superior to the constitution and laws of any individual State.  The people of America have been pleased to declare, that all treaties made before the establishment of the national Constitution, or laws of any of the States, contrary to a treaty, shall’ be disregarded.”

“The attempt has been made to detract from the force of Chase’s doctrine as declared in Ware v. Hylton, by emphasizing the fact that in that case, the treaty in question was one which had been originally entered into under the Confederation, that is, at a time when the States were severally sovereign, and that, therefore, it was a treaty to which the States may be said to have individually asserted. There would not, however, seem to be much force in this, for if, after the adoption of the Constitution, the treaty in question could be considered in any way as still an instrument deriving its validity from the consent of the State, it could have been abrogated by subsequent state action, but this, of course, was expressly denied by the court in Ware v. Hylton. The truth is that the Constitution puts treaties, made and to be made, upon exactly the same footing, and in the latter cases which are cited above, the doctrine of Ware v. Hylton is considered as controlling with reference to treaties made after the adoption of the Constitution. It may, then, be considered as established that a treaty entered into by the Federal Government with respect to a matter within the federal jurisdiction is supreme over conflicting state law.”

“The Court discussed whether individuals have the standing to invoke treaty-based rights and acknowledged that typically they do not. Id. at 1533. However, it also noted that if a treaty expressly or impliedly provides a private right of action, it is self-executing and can be invoked by the individual. Id. at 1533 (citing Head Money Cases, 112 U.S. 580, 598-99, 5 S.Ct. at 253-54, 28 L.Ed. 798 (1884)).”

Citing Bey v. New Jersey State Police “It is, therefore, hardly surprising that the bulk of the provisions of the Barbary Treaties: (a) focused on the issues of maritime/admiralty, war, merchant purchases/sales, and akin matters; and (b) were set forth in terms of protections of “vessels.””

“A state cannot refuse to give foreign nationals their treaty rights because of fear that valid international agreements may possibly not work completely to the satisfaction of state authorities See Kolovrat v. Oregon, 366 U.S. 187, 81 S. Ct. 922, 6 L. Ed. 2d 218 (1961).”

“In United States v. Valencia-Trujillo, 573 F.3d 1171 (11th Cir. Fla. 2009), it was held that not all treaties give defendants’ rights that can be asserted in the courts of the United States.  Only if the treaty contains stipulations which are self-executing, that is, require no legislation to make them operative, will they have the force and effect of a legislative enactment.”

“In De Los Santos Mora v. New York, 524 F.3d 183 (2d Cir. 2008), it was held that a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nation’s residing in the territorial limits of the other, which partake of the nature of municipal (i.e., domestic) law, and which are capable of enforcement as between private parties in the courts of the country.  The Supremacy Clause of the United States Constitution places such provisions in the same category as other laws of Congress. Thus, whenever provisions of a treaty prescribe a rule by which the rights of the private citizen or subject may be determined and when such rights are of a nature to be enforced in a court of justice; that court resorts to the treaty for a rule of decision for the case before it as it would a statute.”

“In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision. But when the terms of the stipulation import a contract—when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court.” Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314(1829). See THE FEDERALIST No. 75 (J. Cooke ed. 1961), 504-505.”

“To the same effect, but more accurate, is Justice Miller’s language for the Court a half-century later, in the Head Money Cases: “A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties of it… But a treaty may also contain provisions which confer certain rights upon the citizens or subjects of one of the nations residing in the territorial limits of the other, which partake of the nature of municipal law, and which are capable of enforcement as between private parties in the courts of the country.” 112 U.S. 580, 598(1884). For treaty provisions operative as “law of the land” (self-executing), see S. Crandall, supra, at 36-42, 49-62, 151, 153-163, 179, 238-239, 286, 321, 338, 345-346. For treaty provisions of an “executory” character, see id. at 162-63, 232, 236, 238, 493, 497, 532, 570, 589. See also CRS Study, supra, at 41-68; Restatement, Foreign Relations, supra, §§ 111-115.”

“Treaty guarantees were obvious to the Framers who devised Article VI, paragraph 2, to take care of the situation. The Convention at first leaned toward giving Congress a negative over state laws which were contrary to federal statutes or treaties, 1 M. Farrand, supra, at 47, 54, and then adopted the Paterson Plan which made treaties the supreme law of the land, binding on state judges, and authorized the Executive to use force to compel observance when such treaties were resisted. Id. at 245, 316, 2 id. at 27-29. In the draft reported by the Committee on Detail, the language thus adopted was close to the present supremacy clause; the draft omitted the authorization of force from the clause, id. at 183, but in another clause, the legislative branch was authorized to call out the militia too, inter alia, “enforce treaties”. Id. at 182. The two words were struck subsequently “as being superfluous” in view of the supremacy clause. Id. at 389-90.”

“In Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314-15 (1829). Chief Justice Marshall explained that a treaty is to be regarded in courts “as equivalent to an act of the legislature, whenever it operates of itself, without the aid of any legislative provision.”

“As one authority says: “Practically this distinction depends upon whether or not the courts and the executive are able to enforce the provision without enabling legislation. Fundamentally it depends upon whether the obligation is imposed on private individuals or on public authorities….” Treaty provisions that define the rights and obligations of private individuals and lay down general principles for the guidance of military, naval or administrative officials in relation thereto are usually considered self-executing. Thus, treaty provisions assuring aliens equal civil rights with citizens, defining the limits of national jurisdiction, and prescribing rules of prize, war, and neutrality, have been so considered ….” “On the other hand certain treaty obligations are addressed solely to public authorities, of which may be mentioned those requiring the payment of money, the cession of territory, the guarantee of territory or independence, the conclusion of subsequent treaties on described subjects, the participation in international organizations, the collection and supplying of information, and direction of postal, telegraphic or other services, the construction of buildings, bridges, lighthouses, etc. Q. Wright, supra, at 207-208. See also. Henkin, Foreign Affairs And The constitution 156-162 (1972).”

“Noting that treaties “are declared the supreme law of the land,” Justice Holmes for the Court said: “If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government. Missouri v. Holland, 252 U.S. 416, 432 (1920).”