Bancroft Treaties

The Bancroft treaties, also called the Bancroft conventions, were a series of agreements between the United States and other countries that 1) recognized the right of each party's nationals to become naturalized citizens of the other; and 2) defined circumstances in which naturalized persons were legally presumed to have abandoned their new citizenship and resumed their old one. Named for historian and diplomat George Bancroft (1800-1891), who negotiated the first of these agreements with Prussia, then known officially as the North German Confederation, the Bancroft treaties were mainly intended to prevent individuals from using naturalization as a way to avoid military service and other legal obligations in their native countries.

From 1868 to 1937, the United States entered into 25 Bancroft treaties covering 34 foreign countries. [There were bilateral treaties with Albania, Austria-Hungary, Baden, Bavaria, Belgium, Bulgaria, Brazil, Costa Rica, Czechoslovakia, Denmark, El Salvador, Haiti, Hesse, Honduras, Lithuania, Mexico, Nicaragua, Peru, Prussia, Portugal, the United Kingdom, Uruguay and Wurttemberg. Norway and Sweden were included in a single treaty signed in 1869 when the two countries were joined in a personal union under the Swedish monarchy. The Interamerican Convention of 1906 covered Argentina, Bolivia, Brazil, Cuba, Colombia, Costa Rica, the Dominican Republic, Guatemala, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Paraguay, Peru, Panama and Uruguay. The treaties with each of the German states except Prussia became obsolete when the German Empire was proclaimed in 1871. The treaties with Prussia and Austria-Hungary lapsed with the American declaration of war in 1917 and were never revived. Brazil, Mexico and the United Kingdom terminated their treaties; and Bolivia, Brazil, Cuba, the Dominican Republic, Guatemala, Mexico, Paraguay, Peru and Uruguay withdrew from the 1906 convention.] A typical Bancroft treaty had three major provisions. The first specified the terms under which each party would recognize the naturalization of its citizens by the other. (Five years' uninterrupted residence in the adopted country was the usual requirement.) The second provided that naturalized citizens who returned to their native country could be prosecuted for crimes that they allegedly committed before they emigrated. The third and most important provided that naturalized citizens who returned to their country of origin and stayed there for two continuous years would be presumed to have resumed their former nationality. That would require them to meet any unfulfilled military service obligation in their native country and deny them the diplomatic protection of their adopted one. Article III of the 1908 treaty with Portugal was typical:

If a Portuguese subject naturalized in America, renews his residence in Portugal, without intent to return to America, he shall be held to have renounced his naturalization in the United States. Reciprocally, if an American naturalized in Portugal renews his residence in the United States, without intent to return to Portugal, he shall be held to have renounced his naturalization in Portugal.

The intent not to return may be held to exist when the person naturalized in one country resides more than two years in the other country. [35 U.S. Statues at Large 2082]

Conceived in an era when the right of individuals to change their citizenship was not universally recognized, the Bancroft treaties represented an important step forward in securing recognition by foreign governments of the right of their nationals to become American citizens. But American constitutional law eventually made the treaties obsolete.

In "Schneider v. Rusk", 377 U.S. 163 (1964), the Supreme Court invalidated a section of the Immigration and Nationality Act of 1952 that purported to strip naturalized Americans of their citizenship after "three" years' continuous residence in their country of origin; and in "Afroyim v. Rusk", 387 U.S. 253 (1967), the Supreme Court, reviewing part of the Nationality Act of 1940, held that Congress has no power to strip anyone of their citizenship, whether it is acquired by birth or by naturalization. These decisions strongly implied that if a case of involuntary loss of citizenship under one of the Bancroft treaties came before the Supreme Court, the expatriation provisions would be found unconstitutional. [An earlier Supreme Court ruling — "Reid v. Covert," 354 U.S. 1 (1957) — established that provisions of treaties or executive agreements are unenforceable if they conflict with the Constitution.] Concluding that the Bancroft treaties were unenforceable, the administration of President Jimmy Carter, acting in consultation with the Senate Committee on Foreign Relations, gave notice in 1980 terminating the treaties [ "Department of State Bulletin", v. 80, no. 2045, October 1980, pp. 78-80; and v. 81, no. 2046, January 1981, pp. 39-40.] with 18 of the 21 countries [Argentina, Belgium, Chile, Colombia, Costa Rica, Denmark, Ecuador, El Salvador, Haiti, Honduras, Lithuania, Nicaragua, Norway, Panama, Peru, Portugal, Sweden and Uruguay. Delivery of the termination notice to the Lithuanian consulate in Washington, DC, gave the United States an opportunity to emphasize that it did not recognize the incorporation of Lithuania into the Soviet Union.] with which they were still in force. The treaties with Albania, Bulgaria and Czechoslovakia (now the Czech Republic and Slovakia) remain in force. [ [http://www.state.gov/documents/organization/86771.pdf 7 U.S. Department of State Foreign Affairs Manual 1277(b)] ]

ee also

*Trop v. Dulles

Notes and references

*Michael Walter, "The Bancroft Conventions: Second-Class Citizenship for Naturalized Americans", 12 International Lawyer 825 (1978).