TITLE
28 >
PART IV
>
CHAPTER
97 > Sec. 1603.
Sec. 1603.
- Definitions
For purposes of this chapter -
(a) A ''foreign state'', except as used in
section 1608 of this title, includes a political subdivision of
a foreign state or an agency or instrumentality of a foreign state
as defined in subsection (b).
(b) An ''agency or instrumentality of a foreign state''
means any entity -
(1) which is a separate legal person, corporate or otherwise,
and
(2) which is an organ of a foreign state or political subdivision
thereof, or a majority of whose shares or other ownership interest
is owned by a foreign state or political subdivision thereof, and
(3) which is neither a citizen of a State of the United
States as defined in section 1332 (c) and (d) of this title, nor
created under the laws of any third country.
TITLE 8 >
CHAPTER 12 >
SUBCHAPTER I > § 1101
§ 1101. Definitions
(a) As used
in this chapter—
(14) The term “foreign state” includes outlying possessions of
a foreign state, but self-governing dominions or territories under
mandate or trusteeship shall be regarded as separate foreign states.
Black's Law Dictionary, Sixth Edition, p. 648:
"Foreign states.
Nations which are outside the United States. Term may also refer
to another state; i.e. a sister state.
"The term "foreign
nations," as used in the statement of the rule that the laws of foreign
nations should be proved in a certain manner, should be construed to
mean all nations and states other than that in which the action is brought;
and hence one state of the Union is foreign to another, in the sense
of that rule.
"A "foreign state"
within statute providing for expatriation of American citizen who is
naturalized under laws of foreign state is a country which is not the
United States, or its possession or colony, an alien country, other
than our own. Kletter v. Dulles, D.C.D.C., 111 F.Supp. 593, 598."
[Black's Law Dictionary, Sixth Edition, p. 648]
81A Corpus Juris Secundum (C.J.S.), United States, §29:
"Generally, the states of the Union sustain
toward each other the relationship of independent sovereigns or independent
foreign states, except in so far as the United States
is paramount as the dominating government, and in so far as the states
are bound to recognize the fraternity among sovereignties established
by the federal Constitution, as by the provision requiring each state
to give full faith and credit to the public acts, records, and judicial
proceedings of the other states..."
[81A Corpus Juris Secundum (C.J.S.), United States, §29 (2003):]
“The
United States Government
is a foreign corporation
with respect to a state.”
[N.Y. v. re Merriam 36 N.E. 505; 141 N.Y. 479; affirmed 16 S.Ct.
1073; 41 L. Ed. 287] [underlines added]
Black's
Law Dictionary, Sixth Edition, p. 498
Dual citizenship.
Citizenship in two different
countries.
Status of citizens of United States who reside within a state; i.e.,
person who are born or naturalized in the U.S. are citizens of the U.S.
and the state wherein they reside.
[Black's Law Dictionary, Sixth Edition, p. 498]
28 U.S.C. §97
TITLE 28>
PART I >
CHAPTER
13 > Sec. 297.
Sec. 297. -
Assignment of judges to courts of the freely associated compact states
(a)
The Chief Justice or the chief judge of the United States Court of
Appeals for the Ninth Circuit may assign any circuit or district judge
of the Ninth Circuit, with the consent of the judge so assigned, to
serve temporarily as a judge
of any duly constituted court of the freely associated compact states
whenever an official duly authorized by the laws of the respective compact
state requests such assignment and such assignment is necessary for
the proper dispatch of the business of the respective court.
(b)The
Congress consents to the acceptance and retention by any judge so authorized
of reimbursement from the
countries referred to in subsection (a) of all necessary
travel expenses, including transportation, and of subsistence, or of
a reasonable per diem allowance in lieu of subsistence. The judge shall
report to the Administrative Office of the United States Courts any
amount received pursuant to this subsection
§ 10. Of states forming a federal republic.
Finally, several sovereign and independent states may unite themselves together by a
perpetual confederacy, without ceasing to be, each individually, a perfect
state. They will together constitute a federal republic: their joint
deliberations will not impair the sovereignty of each member, though
they may, in certain respects, put some restraint on the exercise of
it, in virtue of voluntary engagements. A person does not cease to be
free and independent, when he is obliged to fulfil engagements which
he has voluntarily contracted.
Such were formerly
the cities of Greece; such are at present the Seven United Provinces
of the Netherlands, (13) and such the members of the Helvetic body.
[The Law of Nations, Book I, §10, MONSIEUR DE VATTEL]
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.
To deny a sovereign this privilege “would manifest a want of comity
and friendly feeling.”
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[p.775]the
foreign state.
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.
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.
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.
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.
[Annotated
Constitution, Article III, Congressional Research Service]
We have held, upon full consideration, that although under existing
statutes a circuit court of the United States has jurisdiction upon
habeas corpus to discharge from the custody of state officers or
tribunals one restrained of his liberty in violation of the Constitution
of the United States, it is not required in every case to exercise
its power to that end immediately upon application being made for
the writ. 'We cannot suppose,' this court has said, 'that Congress
intended to compel those courts, by such means, to draw to themselves,
in the first instance, the control of all criminal prosecutions
commenced in state courts exercising authority within the same territorial
limits, where the accused claims that he is held in custody in violation
of the Constitution of the United States. The injunction to hear
the case summarily, and thereupon 'to dispose of the party as law
and justice require' [R. S. 761], does not deprive the court of
discretion as to the time and mode in which it will exert the powers
conferred upon it. That discretion should be exercised in the light
of the relations existing, under our system of government, between
the judicial tribunals of the Union and of the states, and in recognition
of the fact that the public good requires that those relations be
not disturbed by unnecessary conflict between courts equally bound
to guard and protect rights secured by the Constitution.
When the petitioner
is in custody by state authority for an act done or omitted to be
done in pursuance of a law of the United States, or of an order,
process, or decree of a court or judge thereof; or where, being
a subject or citizen of a foreign state, and domiciled therein,
he is in custody, under like authority, for an act done or omitted
under any alleged right, title, authority, privilege, protection,
or exemption claimed under the commission, or order, or sanction
of any foreign state, or under color thereof, the validity and effect
whereof depend upon the law of nations; in such and like cases of
urgency, involving the authority and operations of the general government,
or the obligations of this country to, or its relations with, foreign
nations, [180 U.S. 499, 502] the courts of the United
States have frequently interposed by writs of habeas corpus and
discharged prisoners who were held in custody under state authority.
So, also, when they are in the custody of a state officer, it may
be necessary, by use of the writ, to bring them into a court of
the United States to testify as witnesses.' Ex parte Royall,
117 U.S. 241, 250 , 29 S. L. ed. 868, 871, 6 Sup. Ct. Rep. 734;
Ex parte Fonda,
117 U.S. 516, 518 , 29 S. L. ed. 994, 6 Sup. Ct. Rep. 848; Re
Duncan,
139 U.S. 449 , 454, sub nom. Duncan v. McCall, 35 L. ed. 219,
222, 11 Sup. Ct. Rep. 573; Re Wood,
140 U.S. 278 , 289, Sub nom. Wood v. Bursh, 35 L. ed. 505, 509,
11 Sup. Ct. Rep. 738; McElvaine v. Brush,
142 U.S. 155, 160 , 35 S. L. ed. 971, 973, 12 Sup. Ct. Rep.
156; Cook v. Hart,
146 U.S. 183, 194 , 36 S. L. ed. 934, 939, 13 Sup. Ct. Rep.
40; Re Frederich,
149 U.S. 70, 75 , 37 S. L. ed. 653, 656, 13 Sup. Ct. Rep. 793;
New York v. Eno,
155 U.S. 89, 96 , 39 S. L. ed. 80, 83, 15 Sup. Ct. Rep. 30;
Pepke v. Cronan,
155 U.S. 100 , 39 L. ed. 84, 15 Sup. Ct. Rep. 34; Re Chapman,
156 U.S. 211, 216 , 39 S. L. ed. 401, 402, 15 Sup. Ct. Rep.
331; Whitten v. Tomlinson,
160 U.S. 231, 242 , 40 S. L. ed. 406, 412, 16 Sup. Ct. Rep.
297; Iasigi v. Van De Carr,
166 U.S. 391, 395 , 41 S. L. ed. 1045, 1049, 17 Sup. Ct. Rep.
595; Baker v. Grice,
169 U.S. 284, 290 , 42 S. L. ed. 748, 750, 18 Sup. Ct. Rep.
323; Tinsley v. Anderson,
171 U.S. 101, 105 , 43 S. L. ed. 91, 96, 18 Sup. Ct. Rep. 805;
Fitts v. McGhee,
172 U.S. 516, 533 , 43 S. L. ed. 535, 543, 19 Sup. Ct. Rep.
269; Markuson v. Boucher,
175 U.S. 184 , 44 L. ed. 124, 20 Sup. Ct. Rep. 76.
There are cases that come within the exceptions to the general
rule. In Loncy's Case,
134 U.S. 372 , 375, sub nom. Thomas v. Loney, 33 L. ed. 949,
951, 10 Sup. Ct. Rep. 584, 585, it appeared that Loney was held
in custody by the state authorities under a charge of perjury committed
in giving his deposition as a witness before a notary public in
Richmond. Virginia, in the case of a contested election of a member
of the House of Representatives of the United States. He was discharged
upon a writ of habeas corpus sued out from the circuit court of
the United States, this court saying: 'The power of punishing a
witness for testifying falsely in a judicial proceeding belongs
peculiarly to the government in whose tribunals that proceeding
is had. It is essential to the impartial and efficient administration
of justice in the tribunals of the nation, that witnesses should
be able to testify freely before them, unrestrained by legislation
of the state, or by fear of punishment in the state courts. The
administration of justice in the national tribunals would be greatly
embarrassed and impeded if a witness testifying before a court of
the United States, or upon a contested election of a member of Congress,
were liable to prosecution and punishment in the courts of the state
upon a charge of perjury, preferred by a disappointed suitor or
contestant, or instigated by local passion or prejudice.' So, in
Ohio v. Thomas,
173 U.S. 276, 284 , 285 S., 43 L. ed. 699, 702, 19 Sup. Ct.
Rep. 453, 456, which was the case of the arrest of the acting governor
[180 U.S. 499, 503] of the Central Branch of the National
Home for Disabled Volunteer Soldiers, at Dayton, Ohio, upon a charge
of violating a law of that state, the action of the circuit court
of the United States discharging him upon habeas corpus, while in
custody of the state authorities, was upheld upon the ground that
the state court had no jurisdiction in the premises, and because
the accused, being a Federal officer, 'may, upon conviction, be
imprisoned as a means of enforcing the sentence of a fine, and thus
the operations of the Federal government might in the meantime be
obstructed.' The exception to the general rule was further illustrated
in Boske v. Comingore,
177 U.S. 459, 466 , 467 S., 44 L. ed. 846, 849, 20 Sup. Ct.
Rep. 701, 704, in which the applicant for the writ of habeas corpus
was discharged by the circuit court of the United States, while
held by state officers, this court saying: 'The present case was
one of urgency, in that the appellee was an officer in the revenue
service of the United States whose presence at his post of duty
was important to the public interests, and whose detention in prison
by the state authorities might have interfered with the regular
and orderly course of the business of the department to which he
belonged.'
[State
of Minnesota v. Brundage, 180 U.S. 499 (1901)]
[NOTE:
The federal Courts of the United States as used above do not have
the authority to interpose in foreign countries, but only in states
of the Union for violations of the Constitution, and since they
did interpose above, and since they did so in a "foreign state"
and described that foreign state as a state of the Union, they are
admitting of no federal jurisdiction within any state of the Union]
The Indian tribes, being
within the territorial limits of the United States, were not, strictly
speaking, foreign states; but they were alien nations, distinct
political communities, with whom the United States might and habitually
did deal, as they thought fit, either through treaties made by the president
and senate, or through acts of congress in the ordinary forms of legislation.
The members of those tribes owed immediate allegiance to their several
tribes, and were not part of the people of the United States. They were
in a dependent condition, a state of pupilage, resembling that of a
ward to his guardian. Indians and their property, exempt from taxation
by treaty or statute of the United States, could not be taxed [112 U.S.
94, 100] by any state. General acts of congress did not
apply to Indians, unless so expressed as to clearly manifest an intention
to include them. Const. art. 1, 2, 8; art. 2, 2; Cherokee Nation v.
Georgia, 5 Pet. 1; Worcester v. Georgia, 6 Pet. 515; U. S. v. Rogers,
4 How. 567; U. S. v. Holliday, 3 Wall. 407; Case of the Kansas Indians,
5 Wall. 737; Case of the New York Indians, Id. 761; Case of the Cherokee
Tobacco, 11 Wall. 616; U. S. v. Whisky,
93 U.S. 188 ; Pennock v. Commissioners,
103 U.S. 44 ; Crow Dog's Case,
109 U.S. 556 ; S. C. 3 SUP. CT. REP. 396; Goodell v. Jackson, 20
Johns. 693; Hastings v. Farmer, 4 N. Y. 293.
[Elk
v. Wilkins, 112 U.S. 94 (1884)]
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