In 1961, the plaintiffs purchased Cathedral Mansions, a three-building apartment complex with a large lawn facing the National Zoo. In 1978, plaintiffs filed an application to subdivide the property into nine lots of record. The new configuration consisted of one large lot underneath the existing structures and eight smaller lots carved out of the lawn. In December 1988, plaintiffs filed an application to construct one new townhouse on each of the eight vacant lots. While the construction permit application was pending, an application to designate the Cathedral Mansions property—including the eight vacant lots—as an historic landmark was filed with the D.C. Historic Preservation Review Board (HPRB). The HPRB voted to designate Cathedral Mansions as an historic landmark in May 1989. In July 1989, the HPRB denied plaintiffs' new construction application, noting that the proposed construction would be incompatible with the property's historic landmark status. In January 1992, plaintiffs once again applied for permits to build townhouses on the eight vacant lots, and the HPRB again recommended denial of the permits. The Mayor's Agent adopted the Board's recommendation and further observed that the plaintiffs had failed to carry their burden on the issues of unreasonable economic hardship and special merit. On March 22, plaintiffs filed this 42 U.S.C. § 1983 action in federal district court, arguing that the permit denial had rendered the eight vacant lots economically valueless and thus worked a "total taking" under Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). On cross-motions for summary judgment, the Court held that: (1) the plaintiffs' takings claim was ripe for judicial review; (2) the relevant parcel of property for takings purposes was the entire Cathedral Mansions property, including the eight vacant lots; (3) because the permit denial did not eliminate all economically viable use of the entire parcel, the Lucas per se rule did not apply; and (4) the permit denial did not effect a taking under the three-part test articulated in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978).
Ripeness: A takings claim is not ripe for judicial review in federal court until: (1) the responsible state agency has made a final decision as to the application of the challenged regulation; and (2) the claimant has sought compensation through state inverse condemnation procedures. Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). The district court held that the plaintiffs had cleared both of these procedural hurdles in this case. First, the Court noted that when "the Mayor's Agent issued his final order denying their permits, plaintiffs [had] exhausted their administrative remedies under § 5-1007." Second, "District law does not provide a procedure to compensate plaintiffs for denial of their building permit applications."
Relevant Parcel: The Court held that the entire Cathedral Mansions property—including the eight vacant lots—was the relevant parcel of property for takings purposes, noting that the Supreme Court's takings jurisprudence "does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." (Quoting Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 130 (1978)). Citing the approach of the United States Court of Federal Claims, the district court noted that "in determining what constitutes the relevant parcel, factors such as the degree of continuity, the dates of acquisition, the extent to which the parcel has been treated as a single unit, the extent to which the protected lands enhance the value of remaining lands, and no doubt many others would enter the calculus." Each of these factors, according to the district court, militated in favor of defining the relevant parcel as the entire property: "First, there is contiguity among all the subdivided lots of the formerly unified property. Second, plaintiffs bought all of [the property] ... at one time, and have owned it in its entirety since the date of acquisition. Third, the District of Columbia tax authorities assessed the land, including the site of the building, as a single parcel."
Categorical Takings: Because the plaintiffs failed to demonstrate that the permit denial had rendered the entire Cathedral Mansions property economically valueless, the district court held that the per se rule of Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), did not apply in this case. The proper framework for analysis, according to the district court, was the Penn Central three-part test.
Penn Central and Partial Regulatory Takings: Because the "denial of plaintiffs' applications arguably effected a partial, yet compensable [regulatory] taking, plaintiffs' claim must ... be assessed through the case-specific framework fashioned by the Supreme Court in Penn Central," which considers "1) the economic impact of the regulation on the claimant; 2) the regulation's interference with the owner's investment-backed expectations; and 3) the character of the governmental action." The Court held that the denial of the new construction permit in this case did not effect a taking under this standard. Addressing the character of the governmental action, the district court noted that "the denial of plaintiffs' permit applications was non-physically intrusive, was part of a more general ‘public program,' and was aimed specifically at promoting the congressionally recognized public interest in preserving the open space opposite the National Zoo." (internal citations omitted) The district court also believed that "denial of the permit applications [did] ... not interfere unnecessarily with plaintiffs' investment-backed expectations," because such expectations did not exist during much of the plaintiffs' ownership of the property. Moreover, "plaintiffs were on notice that their property was subject to designation as an historic landmark, and to the restricted uses that accompany such designation." Finally, the district court noted that "while denial of the permits may prevent plaintiffs from maximizing the value of their property, it does not as a matter of law work such a significant diminution as to effect a compensable taking." The plaintiffs have merely alleged that "the lawn has no economic value when divorced from the rest of the property." However, "since it has been established that the proper denominator in the takings calculus is the entirety" of the Cathedral Mansions property, "a valuation of a hypothetically detached lawn is irrelevant."
The Court held that a successful demonstration of unreasonable economic hardship merely authorizes, but does not require, the Mayor's Agent to issue permits over the objections of the Historic Preservation Review Board.
Decision and Order of the Mayor's Agent, HPA Nos. 92-213 through 92-220 (March 18, 1992).
District Intown Properties Ltd. v. DCRA, 680 A.2d 1373 (D.C. 1996).


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Source: Jennifer Reid, “The Doctrine of Discovery and Canadian Law,” The Canadian Journal of Native Studies, vol. 30, no. 2 (2010): 335-359.
Most non-Aboriginal Canadians are aware of the fact that Indigenous peoples commonly regard land rights as culturally and religiously significant. Fewer non-Natives, I suspect, would consider their own connection with property in the same light; and fewer still would regard the legal foundation of all land rights in Canada as conspicuously theological. In fact, however, it is. The relationship between law and land in Canada can be traced to a set of fifteenth century theological assumptions that have found their way into both common law and the Canadian Constitution. These assumptions, collectively referred to as the Doctrine of Discovery, were initially formulated to mediate rivalries among European states vying for sovereignty rights in the New World. Although there were antecedents to the doctrine, it was Pope Alexander VI who applied them to the Atlantic World of the fifteenth century, in a two-part papal bull known as Inter caetera. The Doctrine of Discovery was the legal means by which Europeans claimed rights of sovereignty, property, and trade in regions they allegedly discovered during the age of expansion. These claims were made without consultation with the resident populations in these territories – the people to whom, by any sensible account, the land actually belonged. The Doctrine of Discovery is a critical component of historical relations between Europeans, their descendants, and Indigenous peoples; and it underlies their legal relationships to this day, having smoothly transitioned from Roman Catholic to international law. Upon discovery of a territory, the doctrine held that Indigenous peoples could not claim ownership of their land, but only rights of occupation and use. In this way, colonial powers claimed preemptive rights while conceding only restricted title to a territory’s owners (Miller 2006: 4).
It has been suggested that law regarding Aboriginal peoples is the “most uncertain and contentious body of law in Canada,” the result of the fact that no legal principles relating to the rights of Indigenous peoples existed at the time of the assumption of British sovereignty (McNeil 1997: 117). This is not entirely accurate, since the Doctrine of Discovery was a firmly entrenched principle of international law that guided earliest British relations with First Nations and, as I will presently point out, the drafting of the Royal Proclamation of 1763 which has loomed large in the history of Aboriginal rights in Canada. Issues relating to Aboriginal title, sovereignty, and self-government, for instance, are complicated precisely because underlying title was assumed by the British Crown in 1763. The principle of discovery thus forced Aboriginal peoples into an ongoing position of dependence on colonial governments and courts for the recognition of rights that Aboriginals take for granted (Assembly of First Nations 2005). Neither the Constitution nor common law, however, has been able to define these rights in a comprehensive manner (Asch and Zlotkin 1997: 212). Attempts to do so were a focus of a series of constitutional conferences in the wake of their inclusion in s.35 of the Constitution Act, 1982, but no resolution was reached; and the courts, which have consequently been the principle arena for adjudicating this issue, have had limited success. Despite this lack of resolution, one principle has never been called into question: namely, the legitimacy of the Crown’s assumption of underlying title and the attendant limitation of Aboriginal rights to those of occupation and use.
Aboriginal Canadians do not generally regard their title to land as merely involving these kinds of usufructuary rights. Rather, they trace title back to pre-contact relationships with land and rights of self-governance. Fundamentally, then, title is not considered something that should be subject to the legal or political system; and s.35 of the Constitution is regarded as having acknowledged already existing rights. From this perspective, the courts’ struggle to define the scope of these rights, rather than to implement them, has been an error; and the Canadian government’s claim to underlying title is based on a misconception. Leroy Little Bear described the mistake in this fashion: “[Aboriginal peoples] are not the sole owners under the original grant from the Creator; the land belongs to past generations, to the yet-to-be-born, and to the plants and animals. Has the Crown ever received a surrender of title from these others?” (Little Bear 1986: 247, Asch and Zlotkin 1997: 215-217). From the standpoint of dominant voices in the ongoing conflict over issues of sovereignty, title, and self-government, however, Native rights are considered to be common law rights stemming from—and subordinate to— the British Crown’s earliest sovereignty claims.
The Doctrine of Discovery is not simply an artifact of colonial history. It is the legal force that defines the limits of all land claims to this day and, more fundamentally, the necessity of land claims at all. To call it into question, even now, would change the rules of the argument entirely. As one journalist puts it: “It is the federal and provincial governments of Canada who are trying to make a claim to land, a claim based on the Doctrine of Discovery” (Steinhauer 2006). The roots of the doctrine can be traced back at least as far as the Crusades, although some would claim that its foundation rests in Augustine’s teachings on “just war,” through which the Catholic Church became morally obligated to meddle in international affairs (Washburn 1995: 4-5). It was during the Crusades, however, that the Church had to fully confront the thorny issues of invading other peoples’ territories and determining the property rights, or dominium, of Muslims. One of the most significant pronouncements on the subject came from Pope Innocent IV, who concluded in 1240 that despite the fact that infidels possessed natural rights, they could be legally deprived of these by virtue of the pope’s obligation to oversee the spiritual needs of all people. The issue of property rights was at the core of Innocent’s influential statement, as it dealt specifically with the question of the legitimacy of invading non-Christian territories and claiming sovereignty therein. He ruled, not surprisingly, that invasions of this kind were “just wars” fought in the service of Christendom (Miller 2006: 12-13, Miller 2005: 8-9).
Contention over control of Lithuania in the early fifteenth century led to a church ruling that would impact directly on the development of the Doctrine of Discovery. In staking a claim against that of the Teutonic knights, Poland turned to Innocent IV’s earlier ruling in favor of just war, and the Council of Constance ruled in 1414 that Poland did indeed have the right to disregard the natural law rights of (in this case, Lithuanian) pagans if they violated Catholic notions of natural law. Conquest and subjugation were thus permissible in the interest of spreading Christianity. It was Pope Nicholas V who established the legal principle by which Europeans could claim enemy territories. In two Bulls, Dum diversas (1452) and, especially, Romanus Pontifex (1455), Nicholas sanctioned the conquest of north Africa by the Portuguese, and ultimately provided the legal foundation for European colonialism and the slave trade (Miller 2005: 9, Miller 2007). Although the fifteenth century papal bulls served Portugal well, they effectively barred Spain from African exploration. In response, Spain turned its attention westward with the voyages of Christopher Columbus, who was instructed by the Crown to assume the admiralty of the territories he was to “discover and acquire.” Upon his return to Spain, King Ferdinand and Queen Isabella immediately sought papal validation of their title to Columbus’ discoveries in the Caribbean, and Pope Alexander VI subsequently issued three bulls legitimizing the claim, the most important of which was Inter caetera, which fully articulated the Doctrine of Discovery with specific reference to the Americas. Alexander’s bulls divided the globe from the North to the South Poles along a line running about 500 kilometers west of the Azores. In order to pursue the “holy and laudable work” of expanding the Christian world, Spain was given title to all discovered and later to be discovered territories west of this boundary. While the bull defined the limits of Iberian discovery claims, Spain and Portugal mutually agreed to shift the boundary through the Treaty of Tordesilla in 1494. The pope endorsed the agreement with another bull, Ea qua in 1506, which allowed Portugal limited access to the Atlantic world. As a result it was able to claim discovery rights in Brazil (Alexander VI: 1493).
Papal constraint on discovery claims would be the object of a great deal of re-interpretation by European crowns and their legal and theological advisors; but on two points, at least, they were in agreement: (i) the pope’s primary authority to grant sovereignty, and (ii) the assumption that Indigenous peoples lost underlying title to their land. The latter would remain a point of European international law. Initially, discovery claims could be made through any one of a number of symbolic acts: the planting of a cross or a flag, the burying of coins, or, in the case of the Spanish conquistadors, the reading of an official pronouncement called the “Requerimiento” (requirement). The document, written by the Spanish jurist Palacios Rubios in 1510, asserted that the Spanish Crown had sovereign rights in the Americas based on Inter caetera. By the turn of the sixteenth century, canon and international law had melded with respect to the Doctrine of Discovery largely through the application of the doctrine to Portuguese and Spanish claims in the New World. England and France followed the Iberians closely into the age of exploration, and the crowns of both were guided by the doctrine not merely as a point of international law. Rather, the law was regarded as originating in papal bulls, and since both nations were Catholic at the time of their early explorations, concern over contravening the Church’s mandate for Spain loomed large in their respective imaginations, and resulted in the emergence of new legal concepts that became associated with the original doctrine. Intellectuals in both nations scrutinized the bulls and other Church law in order to find justification for new claims to title in the New World that would not undermine the original papal regulations. English scholars, in particular, became adept at the practice, advising Henry VII that he would not be in contravention of the 1493 bull if claims to title were limited to territories not yet discovered by Spain or Portugal (or any other Christian nation). Those advising Elizabeth I honed the theory further by arguing that claims to sovereignty could not be made by sym- bolic acts alone, but required actual occupation of a territory (Miller 2006: 18).
“…full and free authority, faculty and power to sail to all parts, regions and coasts of the eastern, western and northern sea, under our banners, flags and ensigns,…to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians. We have also… given licence to set up our aforesaid banners and ensigns…acquiring for us the dominion, title and jurisdiction of the same towns, castles, cities, islands and mainlands so discovered…” (Biggar 1911: 7-10).
The French and English also developed the idea of terra nullius (“vacant land”) to further sub- stantiate their right to assert sovereignty over regions belonging to non-Europeans. By this principle, land could be regarded as empty, and underlying title could be claimed, if non-Europeans were failing to make use of it in accordance with European expectations or if they had migratory subsistence patterns. Despite these refinements of the doctrine, however, England and France continued to accompany their claims to title in the New World with the established symbolic acts of planting crosses and flags, burying items such as coins, or reading from a commission (Miller 2005: 18-19). Propagation of the Christian faith and assertions of political sovereignty continued to be melded with one another such that explorers (especially those representing the French Crown) generally erected insignia on discovered territory that bore both religious and political symbols.
“placed on his new-found land a large cross, with one flag of England and another of St. Mark, by reason of his being a Venetian, so that our banner has floated very far afield” (Williamson 1929: 29).
“marched through the Countrey with Ensigne displaied, so far as thought needfulle, and now and then heaped up stones on high mountaines, and other places, in token of possession, as likewise to signifie unto such as hereafter may chance to arrive there, that possession is taken in behalfe of some Prince, by those who first found out the countrey…” (Hakluyt 1903: 32, Green 1989: 11-12).
“openly read and interpreted his commission; by vertue thereof he tooke possession in the same harbour of St. John, and 200 leagues every way, invested the Queenes Majestie with the title and dignities thereof…. And signified unto all men, that from this time forward, they should take the same land as a territories appertaining to the Queen of England, and himself authorized under her Majestie to possesse and enjoy it” (Hakluyt 1903: 53-54, Green 1989: 12).
“Of this wood I made a Cross which I set up at one end of the island, on a high and prominent point, with the arms of France, as I had done in the other places where I had stopped. I named this place Saint-Croix island…. Before I left, I built a Cross, bearing the arms of France, which I set up in a prominent place on the shore of the lake, and begged the Indians to be kind enough to preserve it, as well as those they would find along the trails by which we had come” (Biggar 1925: 272, 297, Green 1989: 9-10).
We might note that such symbolic acts of possession continued to be employed well into the nineteeth and twentieth centuries. When William McDougall was sent by the Canadian government to Rupert’s Land in 1869 to assume his post as lieutenant governor of the soon to be acquired territory, he was prevented from entering the colony at Red River by a group of armed Métis who did not recognize Ottawa’s sovereignty in the region. He was forced to retreat across the US border where he remained for a month before he decided to re-enter the territory one night after dark to read an official statement asserting Canadian sovereignty despite the fact that there was no one there to hear it.
“you can hold a territory by right of discovery or by claiming it under some sector theory but where you have great powers holding different points of view the only way to hold that territory, with all its great potential wealth, is by effective occupation” (Marcus 1995: 49, 53, 57-59).
The Inuit were, as many have since described them, “human flagpoles.” Their initial move was accompanied by promises that they would be assisted in returning to northern Quebec, if they chose to do so, after two years; but the promise was not kept. While some were provided with support to move back to their original communities in the 1970s, most had to wait until the late 1980s (Marcus 1995: 59, 77-78, Tester and Kulchyski 1994: 114).
Fifteenth-century papal bulls were the legal foundation upon which North America was colonized. The basic principle of the doctrine they set down — that Indigenous peoples had no sovereign rights in relation to their own land — remained unaltered through centuries of international jurisprudence. The Doctrine of Discovery is not simply a relic of colonial history; it is the legal force that defines the limits of all land claims issues to this day, and it was integrated into North American law from an early period. There are, in particular, two documents that have been principally responsible for keeping the doctrine alive in Canadian law: (i) the Royal Proclamation of 1763 and (ii) the US Supreme Court’s 1823 holding in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
“the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions or territories as, not having been ceded to or purchased by Us, are reserved to them;” and it forbade any administrator or private citizen from “making any Purchases…or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purchase first obtained.” Thus the document ensured that “if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name” (Royal Proclama- tion, 1763, Miller 2006: 31-32, Green 1989: 102-103, Borrows 1997: 159- 160).
“And we do further expressly conjoin and require all officers whatever, as well Military as those Employed in the Management and Direction of Indian Affairs, within the Territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all Persons whatever, who standing charged with Treason, Misprisons of Treason, Murders, or other Felonies or Mis- demeanors, shall fly from Justice and take refuge in the said Territory, and to send them under a proper guard to the Colony where the crime was committed, and of which they stand accused, in order to take their Trial for the same” (Royal Proclamation, 1763).
The Royal Proclamation was steeped in the Doctrine of Discovery. In this document, the British Crown asserted sovereignty over former French territories by virtue of France’s cession of its own discovery rights and despite the fact that no First Nation had ever ceded its land to either France or Britain. On the basis of the doctrine, France’s authority to transfer sovereignty to England needed no justification.
“This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was occupied by the Indians…. The proclamation issued by the King of Great Britain, in 1763, has been considered, and, we think, with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, ‘all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest,’ and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands” (Johnson v. McIntosh, 21 U.S. [8 Wheat.] 543, 593 ).
“In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dis- pose of the soil at their own will, to whomsoever they pleased, was de- nied by the original fundamental principle, that discovery gave exclusive title to those who made it” (Id. at 574).
“Documentary evidence was referred to, to shew the nature and character of the Indian title. It was contended that the effect of it was to shew that from the earliest times the Indians had, and were always recognized as having, a complete proprietary interest, limited by an imperfect power of alienation. British and Canadian legislation was referred to, to shew that such complete title had been uniformly recognized…to have the same force as a statute, under which the lands in suit were reserved to the Indians in absolute proprietary right…. The proclamation in 1763 was uniformly acted on and recognized by the Government as well as the legislature, and was regarded by the Indians as their charter. It was not superseded by the Quebec Act…but it was held by the Supreme Court of the United States to be still in force in 1823: see Johnson v. McIn- tosh.” (St. Catherine’s Milling & Lumber Co. v. The Queen,  L.R. 14 App. Cas. 46, 48 [P.C. 1915] [appeal taken from the Supreme Court of Canada], see generally McNeil 1997a: 142, Bell and Asch 1997: 47-48).
“entirely consistent with the opinion of the Privy Council in St. Catherine’s, and both were consonant with the principles of the Royal Proclamation” (Id. at 631).
The Proclamation, he wrote, “had the effect of a statute,” and it was “declaratory and confirmatory of… ab- original rights” (Id. at 653). He stated, further, that “the principles there laid down [in the Royal Proclamation] continued to be the charter of Indian rights through the succeeding years to the present time – recognized in the various Treaties with the United States in which Indian rights were involved and in the successive land Treaties made between the Crown and the Hudson’s Bay Co. with the Indians” (Id.at 653).
“The Proclamation was made on the basis of a claim to dominion and its protective provisions became applicable in fact to Indians as their lands (the Indian Territory) came under the de facto dominion of representatives of the British Crown” (R. v. White and Bob) (Id. at 661).
“Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means…” (Calder et al. v. Attorney-General of British Columbia,  S.C.R. 313 ¶ 26).
This was the first time that the court had approached some kind of acknowledgment of the fact that Native peoples lived in legitimate societies and had rights of self-determination that were not extinguished at the time that Canada claimed sovereignty over their land. This opinion had a substantial impact, and is considered to have directly influenced the decision to include the recognition of Aboriginal and treaty rights in the Constitution Act, 1982. While the case initiated major strides with respect to Aboriginal land rights, the dissenting justices (who in this instance supported the Native appellants in their claim that their title to land in northwestern British Columbia had never been legally extinguished) upheld the tenets of Crown sovereignty and preemptive rights; and they did so on the basis of the Doctrine of Discovery as articulated in the Royal Proclamation and by Justice Marshall in McIntosh. The Royal Proclamation, according to Justice Hall, was a “fundamental document upon which any determination of fundamental rights rests;” and citing White and Bob, he called it a “charter of Indian rights” (Id. at ¶ 138, Hall J., dissenting). As for Johnson v. McIntosh, Justice Hall called the case “the locus classicus of the principles governing aboriginal title” (Id. at ¶ 121). Thus, notwithstanding his assertion that Aboriginal title was a “legal right,” it could nonetheless be extinguished “by surrender to the Crown or by competent legislative authority” (Id. at ¶ 118, see also Bell and Asch 1997: 48, Asch 1997: ix, Borrows 1997: 155, Asch and Zlotkin 1997: 210).
“In Johnson v. M’Intosh Chief Justice Marshall, although he acknowledged the Royal Proclamation of 1763 as one basis for recognition of Indian title, was none the less of the opinion that the rights of Indians in the lands they traditionally occupied prior to European colonization both predated and survived the claims to sovereignty made by various European nations in the territories of the North American continent” (Id. at ¶ 84).
“The principle of discovery which justified these claims gave the ultimate title in the land in a particular area to the nation which had discovered and claimed it. In that respect, at least, the Indians’ rights in land were obviously diminished; but their rights of occupancy and possession remained unaffected…. Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown” (Id. at ¶ 93).
“An Indian band is prohibited from directly transferring its interest to a third party. Any sale or lease of land can only be carried out after a surrender has taken place, with the Crown then acting on the band’s behalf. The Crown first took this responsibility upon itself in the Royal Proclamation of 1763” (Id. at ¶ 83).
Thus, although Justice Dickson clearly rejected the tradition of regarding the Royal Proclamation as the source of Aboriginal title, his description of Aboriginal title as sui generis did not fundamentally define the scope of interest in land beyond the principle articulated in the Proclamation (Bell and Asch 1997: 49, Fairweather 2006: 99, Borrows 1997: 161).
35(1) The existing aboriginal and treaty rights of the aborigi- nal peoples of Canada are hereby recognized and affirmed.
“It is worth recalling that while British policy towards the native population was based on respect for their right to occupy their traditional lands, a proposition to which the Royal Proclamation of 1763 bears witness, there was from the outset never any doubt that sovereignty and legislative power, and indeed the underlying title, to such lands vested in the Crown; see Johnson v. M’Intosh (1823)…” (Id. at ¶ 49).
Sparrow had broader implications with respect to the issue of Aboriginal title. Although the majority opinion concerning the salmon fishery in British Columbia was not intended to speak to the general question of the scope and nature of Aboriginal rights, Chief Justice Dickson and Justice La Forest linked the issue of title to “traditional activities recognized by the aboriginal society as integral to its distinctive culture” (Id. at ¶ 40). Thus, since Sparrow, courts have generally required that in making a claim, Aboriginal appellants demonstrate that their ancestors exclusively occupied given territories that were loci for activities deemed “integral” (Id., see Bell and Henderson; Macklem 1997: 527, McNeil 1997: 144-145).
“what s. 35(1) does is provide the constitutional framework through which the fact that Aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and rec- onciled with the sovereignty of the Crown” (R. v. Van der Peet,  2 S.C.R. 507, ¶ 31).
“set out the rules by which the British proposed to govern the territories of much of what is now Canada. The Proclamation, while not the sole source of aboriginal rights, recognized the presence of Aboriginals as existing occupying peoples. It further recognized that they had the right to use and alienate the rights they enjoyed the use of those territories. The assertion of British sovereignty was thus expressly recognized as not depriving the aboriginal people of Canada of their pre-existing rights; the maxim of terra nullius was not to govern here” (Id. at 270).
“In Johnson v. M‘Intosh…the first of the Marshall decisions on aboriginal title, the Supreme Court held that Indian land could only be alienated by the U.S. Government, not by the Indians themselves. In the course of his decision (written for the court), Marshall C. J. outlined the history of the exploration of North America by the countries of Europe and the relationship between this exploration and aboriginal title. In his view, aboriginal title is the right of aboriginal people to land arising from the intersection of their pre-existing occupation of the land with the assertion of sovereignty over that land by various European nations. The substance and nature of aboriginal rights to land are determined by this intersection” (Id. at ¶ 36).
“I agree with Professor Slattery both when he describes the Marshall decisions as providing ‘structure and coherence to an untidy and diffuse body of customary law based on official practice’ and when he asserts that these decisions are ‘as relevant to Canada as they are to the United States. . .’ I would add to Professor Slattery’s comments only the observation that the fact that aboriginal law in the United States is significantly different from Canadian aboriginal law means that the relevance of these cases arises from their articulation of general principles, rather than their specific legal holdings” (Id. at 35).
“Aboriginal rights cannot be inexorably linked to aboriginal title given that some aboriginal peoples were nomadic…. Moreover, some Aboriginal peoples varied the location of their settlements both before and after contact. The Mohawks are one such people…. That this is the case may (although I take no position on this point) preclude the establishment of Aboriginal title to the lands on which they settled…” (R. v. Adams,  3 S.C.R. 101, ¶ 27).
The absurdity of suggesting such a gauge in determining title is hard to disregard. European colonials were patently more nomadic than Aboriginal North Americans, having shifted their settlement a span of nearly 5,000 kilometers at the time they asserted sovereignty in the North America, yet the underlying title of their descendants is not disputed. It appears that because of the Doctrine of Discovery, First Nations are expected to demonstrate a pattern of occupancy to which the Crown has never been under any obligation to conform.
“More specifically, in a situation of expropriation, one asks whether fair compensation is available to the aboriginal peoples…. Indeed, the treatment of ‘aboriginal title’ as a compensable right can be traced back to the Royal Proclamation, 1763…. Clearly, the Proclamation contemplated that aboriginal peoples would be compensated for the surrender of their lands…” (Delgamuukw v. Brit- ish Columbia,  3 S.C.R. 1010, ¶ 203, La Forest, J. dissenting/concurring).
According to international law as it was established by European colonial states, sovereignty in the New World was possessed by whatever European state claimed discovery and settlement. Later claims to the same territory could be made by other states through the negotiation of treaties or through successful military bids. It has never been necessary for any state to settle an entire territory in order to maintain its title; rather, it need only prevent all other states from challenging claims to sovereignty. The land rights of Indigenous peoples have never been recognized by the European-based system of international law as having priority over the rights of colonizing states; and although international law has undergone dramatic shifts in terms of recognizing human rights, there has never been an attempt to revisit the injustice inherent in the notion of sovereignty based on the Doctrine of Discovery. Consequently, Indigenous peoples have been forced to deal with judicial systems that are wedded to an archaic and racist principle of papal law. In the Canadian context, recourse to Johnson v. McIntosh and the Royal Proclamation have ensured that rights of sovereignty based on the Doctrine of Discovery have remained definitive in common law. Sovereignty is presumed to reside in the Crown, and thus the Crown has the right to own Native land. Native peoples are regarded as having an Aboriginal claim on land, but this claim is not equivalent to ownership. Aboriginal title relates to rights of occupation and use, not underlying title. Thus, all Aboriginal land rights are limited in Canada. Any land right can be contravened if the government deems such a move necessary for economic or other reasons. Regardless of the negotiations and payment of compensation that are now by convention considered to be necessary components of the process of extinguishing Aboriginal rights, the fact that extinguishment is possible, and that limits on alienability continue to be imposed on Native peoples, underscore the Crown’s preemptive rights that are founded in the Doctrine of Discovery. These rights have a long legal history in Canada, tracing back to the Royal Proclamation, which was regarded as the source of Aboriginal title until the Supreme Court ruled in Sparrow, Van der Peet, and Delgamuukw that it was merely formal recognition of existing rights (Green 1989: 125-126, Asch 1997: 47, Miller 2006: 9, Thom).
(a) anyrightsorfreedomsthathavebeenrecognizedbythe Royal Proclamation of October 7, 1763….
As we have noted throughout this essay, the rights recognized by the Royal Proclamation are double-edged: the protections it provides in respect to use and occupation of land are countervailed by limits on alienability and the Crown’s assertion of preemptive right. Title to land is, according to the Proclamation, an Aboriginal right that is inherently limited. It appears that the Doctrine of Discovery is not only well-established in common law, but has been entrenched in the Constitution as well. And while the Royal Proclamation may not be the source of Aboriginal rights in Canada, it has unmistakably served to define the outer-most parameters of these rights – parameters that were established by Pope Alexander VI in 1493.
To begin the process the federal, provincial and territorial governments…commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility….
It should not be surprising that among RCAP’s key recommendations was also the following: “To begin the process, the federal, provincial and territorial governments,…and national Aboriginal organizations,… commit themselves to building a renewed relationship based on the principles of mutual recognition, mutual respect, sharing and mutual responsibility; these principles to form the ethical basis of relations between Aboriginal and non-Aboriginal societies in the future and to be enshrined in a new Royal Proclamation and its companion legislation” (Indian and Northern Affairs Canada 1996, my stress).
Most constitutional law experts have agreed that the reference to God in the Preamble is purely symbolic, and that it does not conflict with the later clause protecting religious freedom (Barnett 2006). The Preamble, however, might have a more literal meaning than we conventionally assume. The inclusion of the Royal Proclamation in s.25 of the Charter constitutionally entrenches a principle of international law that was created by the Roman Catholic Church to limit the property rights of Indigenous peoples. Furthermore, this principle impacts on the definition, and compromises the scope, of “inherent rights” referred to in s.35(1). The Preamble’s melding of secular and religious law might well be less that purely symbolic in the context of constitutional treatment of Aboriginal rights.
 While the Catholic Church attempted on occasion to speak officially on behalf of the rights of Indigenous peoples, no pope addressed the fundamental issue of territorial sovereignty which was integral to European claims throughout the colonial period. Thus Paul II, in his bull, Sublimis dues sic dilexit (1537), declared that Native Americans should not be treated like “dumb brutes created for our service …[but] as true men…capable of understanding the Catholic faith… [Moreoever] the said Indians and other peoples who may be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they may be outside the faith of Jesus Christ…nor should they be in any way enslaved.” Similarly, Urban VIII declared that anyone who denied Indigenous peoples the right to freely occupy their land would face excommunication.
 The Commission was created under Prime Minister Brian Mulroney, and announced by Chief Justice Brian Dickson, in 1991. The Prime Minister’s hope was that it would help to resolve all outstanding land claims by the year 2000. The Commission’s report was submitted to the government late in 1996. It encompassed five volumes and made over 400 recommendations aimed at improving the relationship between Aboriginal peoples and other Canadians.
Pope Alexander VI, 1493, Inter caetera. May 4. At:Link Accessed January 2009.
Anglican Church of Canada and Evangelical Lutheran Church of Canada. 2001. “Doctrine of Discovery and Terra Nullius.” General Synod. At: Link Accessed October 2008.
Asch, Michael (ed.). 1997. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: University of British Columbia Press.
Asch, Michael & Norman Zlotkin. 1997. “Affirming Aboriginal Title: A New Basis for Comprehensive Claims Negotiations.” In Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: University of British Columbia Press: 208-229.
Assembly of First Nations. 2005. “First Nations-Federal Crown Political Accord and Cabinet Retreat Signal Steps Towards Self-Determination and Self-Government for First Nations.” June 1. At: Link Accessed November 2008.
Barnett, Laura. 2006. “Freedom of Religion and Religious Symbols in the Public Sphere.” Canada: Library of Parliament, Parliamentary Information and Research Service: Law and Government Division, 2006. At: Link. Accessed January 2009.
Bell, Catherine & William B. Henderson. n/d. “Aboriginal Rights: Canadian Law.” The Canadian Encyclopedia. At: Link. Accessed November 2008.
Bell, Catherine & Michael Asch. 1997. “Challenging Assumptions: The Impact of Precedent in Aboriginal Rights Litigation.” In Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: University of British Columbia Press: 38-74.
Biggar, H. P. (ed.). 1911. The Precursors of Jacques Cartier 1497-1534: A Collection of Documents Relating to the Early History of the Dominion of Canada. Ottawa: Government Printing Bureau.
Biggar, H. P. (ed.). 1925. The Works of Samuel de Champlain. Vol. 2. Toronto: Champlain Society Publications.
Borrows, John. 1997 “Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government.” In Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference. Vancouver: University of British Columbia Press: 155-172.
Department of Justice Canada. n/d. Canadian Charter of Rights and Freedoms, Constitution Act, 1982. At: Link. Accessed January 2009.
Fairweather, Joan G. A Common Hunger: Land Rights in Canada and South Africa. Calgary: University of Calgary Press.
Green, L. C. 1989 “Claims to Territory in Colonial America.” In L. C. Green and Olive P. Dickason. The Law of Nations and the New World. Edmonton, AB: University of Alberta Press: 1-140.
Green, L. C. & Olive P. Dickason. 1989. The Law of Nations and the New World. Edmonton, AB: University of Alberta Press.
Hakluyt, Richard. 1903. The Principal Navigations, Voyages, Traffiques and Discoveries of the English Nation. Vol. 3. Glasgow: James MacLehose.
Hurley, Mary C. & Jill Wherrett. 2000. “The Report of the Royal Commission on Aboriginal Peoples.” Canada, Library of Parliament, 2000. At: Link. Accessed January 2009.
Indian and Northern Affairs Canada. 1996. Report of the Royal Commission on Aboriginal Peoples. Volume 1, part 3, Appendix E. At: Link. Accessed January 2009.
Johnson v. M’Intosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543 (1823).
Little Bear, Leroy. 1986. “Aboriginal Rights and the Canadian ‘Grundnorm.’” In J. R. Ponting, ed. Arduous Journey: Canadian Indians and Decolonization. Toronto: McClelland and Stewart.
Macklem, Patrick, K. E. Swinton, R.C.B. Risk, C.J. Rogerson, L.E. Weinrib, & J.D. Whyte (eds.). n/d. Canadian Constitutional Law. Toronto: Emond Montgomery Publications.
Macklem, Patrick. 1997. “First Nations Self-Government and the Borders of the Canadian Legal Imagination.” In P. Macklem, K. E. Swinton, R. C. B. Risk, C. J. Rogerson, L. E. Weinrib, and J. D. Whyte, eds., Canadian Constitutional Law. Toronto: Emond Montgomery Publications: 526-529.
Marcus, Alan Rudolph. 1995. Relocating Eden: The Image and Politics of Inuit Exile in the Canadian Arctic. Hanover: University Press of New England.
McNeil, Kent. 1997a. “Aboriginal Title and Aboriginal Rights: What’s the Connection?” Alberta Law Review, 36, 1: 117-148.
McNeil, Kent. 1997b. “The Meaning of Aboriginal Title.” In Michael Asch, ed. Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and respect for Difference. Vancouver: University of British Columbia Press: 135-154.
Miller, Robert J. 2005. “The Doctrine of Discovery in American Indian Law.” Idaho Law Review, 42: 1-122.
Miller, Robert J. 2006. Native America, Discovered and Conquered: Thomas Jefferson, Lewis and Clark, and Manifest Destiny. Westport, CT: Praeger.
Miller, Robert J. 2007. “Finders Keepers in the Arctic? The Doctrine of Discovery is Still Alive in the Modern World.” Los Angeles Times, August 6, 2007. At: Link. Accessed October 2008.
The NationTalk Project. 2007. “Looking Back, Looking Forward: RCAP In Review.” 2007. At: Link. Accessed January 2009.
Pope Nicholas V. 1455. Romanus Pontifex. January 8. At: Link. Accessed November 2008.
Ponting, J. R. (ed.). 1986. Arduous Journey: Canadian Indians and Decolonization. Toronto: McClelland and Stewart.
Privy Council. 1888. St. Catherine’s Milling and Lumber Company v. The Queen (1888), 14 A.C. 46.
Royal Proclamation, 1763. 1763 At: Link. Accessed November 2008.
Steinhauer, Stewart. 2006 “Canadian Land Claims.” The Dominion, May 13. At: Link. Accessed October 2008.
Supreme Court of Canada. 1996. R. v. Adams, 3 S.C.R. 101.
—-. 1997 Delgamuukw v. British Columbia. 3 S.C.R. 1010.
—-. 1973 Calder et al. v. Attorney-General of British Columbia, S.C.R. 313.
—-. 1984 Guerin v. The Queen, 2 S.C.R. 335.
—-. 1990 R. v. Sparrow, 104 S.C.C.
—-. 1996 R. v. Van der Peet, 2 S.C.R. 507.
—-. 1964 R. v. White and Bob, 50 D.L.R. (2d) 613.
Supreme Court of the United States. 1823. Johnson and Graham’s Lessee v. McIntosh, 21 U.S. 543, 5 L.Ed. 681, 8 Wheat. 543.
Thom, Brian. n/d. “Aboriginal Rights and Title in Canada After Delgamuukw.” At: Link. Accessed November 2008.
Tester, Frank James & Peter Kulchyski. 1994. Tammarniit (Mistakes): Inuit Relocation in the Eastern Arctic, 1939-63. Vancouver: University of British Columbia Press.
Washburn, Wilcomb. 1995. Red Man’s Land, White Man’s Law: The Past and Present Status of the American Indian. 2nd Ed. Norman: University of Oklahoma Press.
Williamson, J. H. 1929. The Voyages of the Cabots. London.
Interpretation 1: Reid, "The Doctrine of Discovery and Canadian Law" by Sean Kheraj and Tom Peace is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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We are still in the “phoney war” phase of Brexit. There is a constant stream of news and statistics on the potential economic impact. Equally there is a constant stream of information as to the political implications, domestically, in relation to the EU as a whole, and internationally. However, it has recently become reasonably clear that the essential negotiating position of the EU is that the UK will not be allowed a special status. To allow this would be to encourage other dissident elements.
A relationship equivalent to membership of the EEA, as with Norway, would no doubt be available, but it entails acceptance of the basic principle of free movement.
There is, however, some indication that elements of free movement are negotiable. Citizenship of the EU carries in principle the right to free movement but this is subject to conditions imposed under the treaties. Art 45 TFEU (Treaty on the Functioning of the European Union) specifically grants the right of free movement in order to take up an offer of work actually received. This is the only right specifically enshrined in the Treaty. The additional rights contained in the citizens’ rights directive (Directive 2004/38/EC) of short-term freedom of movement, and long-term freedom of movement for students and those of independent means, are not as such controversial. The Directive does reflect the case law of the CJEU, which has expanded free movement to include work seekers. The case law in question dates back to the 1970s, at a time when it was very difficult to ascertain what employment was available without travelling to the area in question. Under 21st-century conditions special treatment of jobseekers may be unnecessary. The CJEU has in cases such as Dano (Case C-313/13) and Alimanovic (Case C- 67/14) established that the rights in the Directive do not apply to those who are not economically active. There is therefore scope for reconsideration of the precise scope of the right of free movement, giving the UK greater control.
Interpreting the ECA 1972 in the light of the constitutional background referred to above, we consider that it is clear that Parliament intended to legislate by that Act so as to introduce EU law into domestic law (and to create the category (ii) rights) in such a way that this could not be undone by exercise of Crown prerogative power. With the enactment of the ECA 1972, the Crown has no prerogative power to effect a withdrawal from the Community Treaties on whose continued existence the EU law rights introduced into domestic law depend (rights in categories (i) and (iii)) and on whose continued existence the wider rights of British citizens in category (ii) also depend. The Crown therefore has no prerogative power to effect a withdrawal from the relevant Treaties by giving notice under Article 50 of the TEU (Para 92).
Category (i) rights include rights capable of being replicated in domestic law following Brexit, such as rights under the Working Time Directive. Category (ii) are rights such as freedom of movement enjoyed by British citizens in other EU Member States, and category (iii) are rights in relation to candidacy for or voting in EU elections (see paras 58 – 61).
The EU constitutes a new legal order. Traditionally treaties were regarded as creating rights and obligations only for the high contracting parties, but rights and obligations under the EU treaties apply also to natural and legal persons. This was established by the CJEU in the seminal case of van Gend en Loos (Case 26/62). It is particularly significant that one of the directly effective rights is that of citizenship of the EU. Doubtless it is the contention of government that leaving the EU will result in UK citizens being deprived of EU citizenship.
The conclusion of the High Court that these categories of rights have been conferred by virtue of the European Communities Act implies that any attempt to abrogate them by negotiating exit from the EU will interfere with these rights and cannot therefore be undertaken under the prerogative since it would amount to dispensing with the existing law contrary to Art 2 of the Bill of Rights 1689 (and to the Case of Proclamations (1611) 12 Co Rep 74). The decision of the High Court is extremely robust. It has in effect declared that the principal argument presented by the Crown is fundamentally misconceived.
Miller proceeded on the assumption that notification under Art 50 is irrevocable. It suited all parties to argue this, but the consensus of informed opinion is to the contrary. A definitive ruling could only be given by the CJEU, as it is a question of interpretation of an EU instrument. No doubt the Supreme Court will seek to address the issues in the case in such a way that it is not necessary to make a reference to the CJEU, since this would involve significant further delay and, although this is not a legitimate reason for declining a reference, would only lead to a further outburst of absurd abuse.
In some respects the Miller litigation is a side issue. Although a substantial majority of members of both the House of Commons and House of Lords were personally opposed to Brexit, there appears to be general agreement that whatever procedure is required to be undertaken within Parliament to enable the Art 50 notification to be given will not be objected to. This reflects the fact that there is currently no political narrative which challenges the legitimacy of the referendum and the “mandate” it gives for Brexit. Logically this is incoherent. The referendum was advisory only. This is made very clear in para 106 of Miller. The vote was a vote to leave the EU, not a vote in favour of any particular alternative. The alternatives proposed by various proponents of Brexit are mutually inconsistent, even when they are not logically impossible.
Perhaps the greatest constitutional crisis created has been the assumption that the decision by a bare majority in circumstances where the country is split geographically, generationally and educationally has such iconic status that it cannot be challenged.

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The case of the day is Bleier v. Bundesrepublik Deutschland (N.D. Ill. 2011). The case is a putative class action. The plaintiffs claim that they are the holders of pre-WWII German bonds, on which Germany ceased making repayments in 1933. The substantive point in the case was whether the court had subject-matter jurisdiction in light of requirements of German law, and of a post-war treaty between the US and Germany, that only bonds that had been “validated” through an administrative procedure prescribed by German law are enforceable. A second substantive question was whether Germany, its ministry of finance, and its central bank were immune from suit under the FSIA. The point relevant to Letters Blogatory was procedural: Germany also raised a defense of insufficient service of process under the FSIA.
The plaintiffs first sought to make service via the German central authority under the Hague Service Convention, but the central authority refused to execute the request under Article 13, which permits a state to refuse to execute a request that “would infringe its sovereignty or security.” Rather than seeking to comply with FSIA, the plaintiffs moved for leave to effect service by email to Germany’s counsel of record. Ordinarily, this is an appropriate tactic, but in the context of FSIA—well, let’s just say that it’s a good thing that when the case was assigned to a new judge, the new judge didn’t just adopt the position of the prior judge, else any victory by the plaintiffs at trial would surely have been reversed on appeal. The FSIA’s four methods of service, attempted in the prescribed order, are mandatory and must be strictly complied with (at least when attempting service on a foreign state rather than an instrumentality of a foreign state).
If the German court has ruled by now on the motion to quash, and has quashed service, Plaintiffs may re-file the motion to serve by an alternate method, § 1608(b)(3)(C), but Plaintiffs must explain specifically how the proposed alternative is “consistent with the law of the place where service is to be made,” id. If the German court has not quashed service, then Plaintiffs may move to deem service effectuated if [the bank] still disputes the effectiveness of service.
The United States has made such a declaration. So under Article 15(2), the US court is free to enter a default judgment. As in Scheck v. Republic of Argentina, another sovereign debt case, the foreign central authority probably would have been better off expressly refusing to execute the request on Article 13 grounds rather than simply refusing to be explicit about its refusal. If Scheck is rightly decided, then there would seem to be no FSIA exception to Article 15(2). See also Box v. Dallas Mexican Consulate General, 2009 WL 3163551, at *6 (N.D. Tex. 2009), judgment set aside on other grounds, 2010 WL 5437246 (N.D.Tex. 2010); Daly v. Llanes, 1999 WL 1067876, at *1 (S.D.N.Y. 1999).
I’d also direct everyone’s attention to FRCvP 4, 1993 Advisory Committee Notes on subdivision (f), paragraph 5, which interprets Article 15 as authorizing alternative service.
Louis M. Solomon has commented on Sovereign Bonds Exchange LLC v. Federal Republic of Germany, another German pre-war bond case, at his blog. His post focuses on the need to follow the treaty provisions for validation of the bonds originating in what was West Germany, and it follows a Second Circuit decision holding that the court did not have jurisdiction to rule on bonds originating in the former East Germany.
My book History’s Greatest Fraud sheds light on this issue.
If plaintiff is successful in service & the bonds are validated, is Germany obligated to make payments on the bonds? How can this be enforced?
Steve, if I understand your question, you’re asking how one could go about enforcing a judgment against Germany, assuming that the plaintiff ultimately gets a judgment. I’m assuming that this is an academic question and that you’re not looking for legal advice about any particular case.
In general, US judgments for money damages are enforced in the United States by writ of execution, but when the judgment debtor is a foreign sovereign, the FSIA makes foreign sovereign property generally immune from execution, with exceptions. You may want to look at 28 U.S.C. §§ 1609-1611 to get a basic sense of the rule. Of course, one could also seek recognition and enforcement of the US judgment in a foreign court, subject to the foreign country’s laws, but I’m not sure that that was your question.


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SUMMERFIELD, Postmaster General et al. CIVIL AERONAUTICS BOARD v. SUMMERFIELD, Postmaster General et al.
In 1948 the Board, on applications made by C & § in 1944 and 1945, fixed a prospective annual subsidy for its domestic operations beginning January 1, 1948, which the Board Estimated would yield a net return after taxes of 7.4 percent on that part of its investment allocable to those operations. 9 C.A.B. 786. The following three years—1948, 1949, and 1950—the rates in operation produced a subsidy of more than $654,000 in excess of a 7.4 percent return.
In 1946 C & § applied for subsidy mail pay on its Latin American routes. On October 18, 1951, the Board issued its opinion and order. Rates were fixed retroactively from November 1, 1946, to December 15, 1950, and prospectively from December 16, 1950. The subsidy awarded was designed to give the carrier a 7 percent return, on the property. allocable to foreign operations, after taxes for the past period, and 10 percent for the future. 14 C.A.B. 681.
On the Postmaster General's petition for review the Court of Appeals reversed the Board. 92 U.S.App.D.C. 256, 207 F.2d 207. The cases are here on certiorari and were argued with 347 U.S. 67, 74 S.Ct. 347.
The mandate is that the Board 'shall take into consideration' what 'the need' of the carrier is. The Act thus poses as the initial question for the Board whether the financial condition of the carrier is such that it needs a subsidy or has no need for one. The Board did not find that Delta had a 'need' for an additional $654,000. It merely concluded that those exces domestic profits should not 'as a matter of economic policy' be taken into account in computing a subsidy for international operations. In that posture the decision of the Board seems not in conformity with the law.
The Board answers to the effect that under § 406(b) it 'may fix different rates for different air carriers or classes of air carriers, and different classes of service.' It may, therefore, fix a rate for international service. Since it may do that, it may, consistently with rate-making decisions (see, e.g., American Toll Bridge Co. v. Railroad Commission, 307 U.S. 486, 494, 59 S.Ct. 948, 953, 83 L.Ed. 1414) fix the rate at a level which will sustain the particular unit. Therefore the Board need do no more under § 406(b) when it fixes a rate for international service than offset revenue attributable to the class of service for which the rate is made. That is the argument.
There are aspects of traditional rate-making that are carried over into the Act. Thus we held in Transcontinental & Western Air v. Civil Aeronautics Board, 336 U.S. 601, 69 S.Ct. 756, 93 L.Ed. 911, that rates under the Act are made retroactive only to the date of the application. We also noted in that case that the 'need' clause in § 406(b) is not wholly at war with traditional rate-making functions. Id., 336 U.S. at page 604, 69 S.Ct. at pages 757, 758. But the application of the 'need' clause which the Board has made in this case is at war with the language of § 406(b). The standard is 'the need of each such air carrier.' The 'need' of the carrier is measured by the entirety of its operations, not by the losses of one division or department. The measure of 'the need' is an amount of compensation necessary to carry the mail and 'together with all other revenue of the air carrier' adequate for maintenance and development. And the Act defines 'air carrier' as 'any citizen of the United States who undertakes * * * to engage in air transportation * * *.' § 1(2). Thus the wording of the Act precludes measuring 'the need' of the carrier by any other unit than the carrier as an entity.
As we read the Act, Congress has established a special formula for the fixing of a subsidy rate. While the rate may be for a class of service, the return in form of a subsidy must be computed with reference to the entire operations of the carrier. The requirement is that the Board offset all of a carrier's revenues in determining the subsidy; there is no discretion in the Board to disregard any portion of the revenue because of economic or other policy considerations. In other words, an air carrier's subsidy need is an amount which, 'together with all other revenue' of the carrier, will enable it to meet and maintain the objectives of the Act. The carrier's 'need' is therefore a limiting factor in the sense that the subsidy may not exceed it. Since the Board did not construe and apply the Act in that manner, the Court of Appeals was correct in reversing the rate order.
The Board makes an extended argument of policy against that position in elaboration of the reasons it advanced for not offsetting the excess earnings from domestic operations against the international subsidy rate.2 It maintains that maximum operating efficiency on the part of air carriers and the development of air transportation—prominent objectives of the Act3—will be better served by setting subsidy rates on a divisional rather than on a system basis. This may be so. But that is a matter of policy for Congress to decide. As we read § 406(b) Congress adopted in the present Act a rate formula based on 'the need' of the carrier as measured by its entire operations, even when a rate was being fixed for a class of service.
'If an offset policy were adopted, the almost invariable result would be that, as in the instant case, the profits from a carrier's domestic operation would be used to sustain any international operations it might have. Recognizing this likelihood, we hesitate to burden the more robust segment of the industry with the obligations of the economically weaker part. For if the domestic air transport system can be kept financially sound, the public must ultimately benefit, putting aside any consideration of the obvious advantage of reduced rates of mail compensation. Thus, we anticipate that if the carriers' earning position continues strong, reductions in the domestic fare level will be possible, thereby giving impetus to the further development of the industry. In addition, with improved earnings, the domestic operators should be able to benefit the public and themselves with more modern aircraft, and with improved methods affording safer and more efficient operations. We cannot escape the thought that if we allow international operations to be carried on the back of domestic operations, we shall be subjecting the latter to an unjustifiable strain. Many of the domestic operators are well along the road to self-sufficiency. It is our duty to speed them on their way, not thwart them.
'It also appears desirable to maintain the comparative status between those domestic operators which have foreign routes as against those which do not have foreign routes. Since carriers fall into fairly well-defined classes, the Board is enabled to fix uniform domestic mail rates for groups of carriers provided, of course, that their comparative status is preserved by excluding consideration of any international operations. A carrier operating under a class rate has every incentive to operate efficiently because it may retain any profits it earns inexcess of the estimated return to be afforded by the uniform rate. It is also administratively desirable to preserve a comparative status between carriers because the Board has been able to analyze the operations of each carrier within a class in the light of the results achieved by others within the same class. The comparison technique of rate-making has proved to be the most satisfactory and practicable available to the Board. If we were required to fix rates for both domestic and international operations at the same time, it would be difficult, if not impossible, to find a suitable basis for a comparison technique of analysis.
'In view of the foregoing, we find that the earnings from C & S' domestic routes should not be used to offset the 'need' resulting from the carrier's international routes. This conclusion stems from considerations of economic policy; we are not deciding the question of our legal power to make such an offset.' 14 C.A.B. 683.