Aquaman’s Citizenship

We’ve written previously about Superman’s U.S. citizenship (and his brief flirtation with renouncing it), but he isn’t the only superhero with potential citizenship issues.  Believe it or not, Aquaman has troubles of his own, even if they aren’t addressed explicitly in the comics.  As astute reader Frank asked, “[DC New 52] Aquaman is half-American, on his father’s side. As a citizen, can he hold a title of nobility, namely “King of Atlantis,” in a foreign country?”  As the question implies, there are two issues here: Can Aquaman be King of Atlantis while remaining a U.S. citizen?  And can a U.S. citizen hold a foreign title of nobility?

I. Renunciation

As discussed previously, 8 U.S.C. § 1481 provides several ways in which someone can lose their U.S. citizenship, if they are done “with the intention of relinquishing United States nationality.”  In Aquaman’s case, subsection (a)(4)(A) is the most likely route to renunciation:

accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state

Since Aquaman is an Atlantean citizen, assuming the office of King of Atlantis would seem to be sufficient.  Strictly speaking, he would also have to do so with the intention of relinquishing United States nationality, but intent can be inferred from actions.  Perkins v. Elg, 99 F.2d 408, 412 (D.C. Cir. 1938) (“expatriation is a matter of intent on the part of the person concerned, which intent must be shown by some express act or some other act from which it can be gathered”).  In fact, the State Department considers accepting a policy-level position in a foreign government to be prima facie evidence of intent to relinquish citizenship.  The fact that Aquaman remains a citizen of Atlantis means that he is not at risk of becoming stateless, which is one of the major policy reasons prohibiting the involuntary imposition of expatriation.  Tropp v. Dulles, 356 U.S. 86 (1958).

Notably, Aquaman later abdicated the throne to be a full-time superhero based in Boston.  Could this abdication signal that he never intended to relinquish his American citizenship?  Probably not.  “After an American citizen has performed an overt act which spells expatriation under the wording of the statute he cannot preserve for himself a duality of citizenship by showing his intent or understanding to have been contrary to the usual legal consequences of such an act.”  Grassi v. Acheson, 101 F.Supp. 431, 432 (D.D.C. 1951); see also Terrazas v. Muskie, 494 F.Supp. 1017, 1020 (N.D.Ill. 1980) (“plaintiff’s struggle to retain his citizenship is likely evidence of his realization of the gravity of his earlier decision to relinquish his citizenship”).

So is there any hope for Aquaman?  There is a slim thread.  Any doubts or ambiguities in these kinds of cases must be resolved in favor of retaining citizenship.  Dulles v. Katamoto, 256 F.2d 545, 548 (9th Cir. 1958) (“in construing § 401(d) as to such a dual national … the facts and the law should be construed as far as reasonably possible in favor of the citizen.”); Nishikawa v. Dulles, 356 U.S. 129, 133 (1958) (“when a citizenship claimant proves his birth in this country or acquisition of American citizenship in some other way, the burden is upon the Government to prove an act that shows expatriation by clear, convincing and unequivocal evidence”).  Unfortunately for him, the only issue is whether Aquaman intended to relinquish his citizenship: the fact that he voluntarily assumed the throne of Atlantis is established beyond doubt.

II. Titles of Nobility

The Title of Nobility Clause of the U.S. Constitution forbids both the federal government and the states from granting titles of nobility.  U.S. Const. art. 1 § 9 cl. 8; U.S. Const. art. 1 § 10 cl. 1.  Furthermore, “no person holding any office of profit or trust under [the United States], shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”  But these clauses do not prohibit private citizens from holding such titles,  so Aquaman is in the clear in that regard.  He could hold a title of nobility as long as he did not “accept, serve in, or perform the duties of any office, post, or employment under the government of” Atlantis.

By the by, the reason why U.S. citizens are granted honorary knighthoods rather than proper ones (e.g. Bill Gates, who is a KBE but may not use the title “Sir”) is not because of the Title of Nobility Clause but rather because proper knighthoods are only granted to British subjects.

There is a proposed constitutional amendment to prohibit private citizens from holding titles of nobility, on pain of expatriation, but it has not been ratified by three-fourths of the states.  Interestingly, the twelve ratifications it has received so far still “count,” and so if 28 more states ratified it then it would become part of the Constitution.  Such a long period between proposal and adoption is not unheard of: The Twenty-Seventh (and currently last) Amendment was adopted 203 years after its proposal in 1788.

III. Conclusion

Once again Aquaman has been overshadowed by better-known superheroes, even when it comes to fictional legal troubles.  Where was the Fox News outrage that the former King of Atlantis was allowed to roam the streets of Boston without being deported?  Where are the Republican candidates on this issue?  Superman merely threatened to renounce his citizenship in a non-canon side-story, whereas Aquaman actually went and did it, as far as the law is concerned, yet there is only silence.  Aquaman just can’t catch a break.

28 Responses to Aquaman’s Citizenship

  1. Does it make a difference if the United States (in DC comics) has never officially recognized Atlantis?

    For obvious reasons, it’s tough to send a diplomat there, but that’s a practical thing, not a barrier to recognizing the nation. I think it more probable that they’ve refused to recognize Atlantis because it would play havoc with their existing rules about the 2/10/100 mile limit and the extraterritoriality of the ocean waters.

    • I believe that Atlantis is internationally recognized, at least in the old continuity. I don’t know about the New 52.

      In any case, there are some cases that try to define “foreign state” within the meaning of the predecessor statute to § 1481. “Mr. Chief Justice Marshall defines it to be one exclusively within the sovereignty of a foreign nation, and without the sovereignty of the United States. The foreign nation must be independent and not governed by another. A nation which exercises its own will or judgment without the guidance or control of another.” Etsuko Arikawa v. Acheson, 83 F.Supp. 473, 475 (S.D.Cal 1949) (holding that Japan was not a “foreign state” during the 1946 election because “Japan in fact was under the authority and supreme power conferred upon the United States by the Allies, who delegated to the United States supreme independent authority, power and control over Japan prior to and at the time of the election, and who conceived, ordered and supervised it.”).

      On the other hand, the same court later held that Japan was a foreign state at the time of the 1946 election! Akio Kuwahara v. Acheson, 96 F.Supp. 38 (S.D.Cal 1951) (“The court is bound by the determination of the Executive Department as to whether or not Japan was a ‘foreign state’ at the time the plaintiff voted in the elections of Japan, and may not make an independent determination on the basis of evidence introduced at the trial relating to the manner in which such government is conducted.”)

      Other cases held that occupied Japan wasn’t a foreign state but that occupied Germany was. Basically the law is all over the map on this one.

  2. Does Booster Gold have citizenship in this time, given he is from an America in the future? [Although he may now be Canadian in the New 52??]

    • It’s hard to say because there’s really no real-world analogy to time-travel from the future. But first, consider a time-traveler from the past who comes to the future. The future version of the time-traveler’s country is undeniably a continuation of the past version. In legal terms they are in privity, and the time-traveler’s citizenship would seem to be perfectly valid, just as if he or she had simply lived a long time.

      But depending on how time travel works in the particular fictional setting, this argument may not work in reverse. If history can be altered (which seems to be the case in most comic books) then a past version of a country may not feel that it is under any obligation to recognize citizens of a possible future version of itself because there is no guarantee that the past version will “become” the future version. Thus, in some sense, they are separate countries.

      For example, suppose there are three countries: the past version and two possible future versions, A and B. In version A (the time-traveler’s home time), the time-traveler is eligible for citizenship; in version B, he or she is isn’t, for whatever reason. The past version of the country could argue that it has no obligation to recognize the time-traveler’s citizenship because the past version may yet turn into version B in the future, where (or perhaps ‘when’) the time-traveler would not have been a citizen in the first place.

      • James Pollock

        It’s easier to figure than that. Most Americans get their citizenship from birthright. Birthright citizenship is extended to all persons who have been born within the territory of the United States. If you travel backwards in time to a time period prior to your own birth, then the citizenship is lost, because you have not been born in the territory of the United States (yet). It’s similar for people obtain citizenship by naturalization; before naturalization, you aren’t a citizen, and after naturalization, you are. Thus, Booster Gold is NOT a citizen of the U.S. at present, but in the future, he will be.

        On the other hand, functional time travel completely blows away the concept of “alibi”, which is based on the premise that one cannot be in two different places at the same time.

    • Not exactly time travel, but Robert J. Sawyer’s Neanderthal Parallax series of novels are set, in part, in an alternative version of Canada.

      At one point, a person crosses into “our” universe. Based on her place of birth, she is officially deemed by the government to be a Canadian citizen — even though the political entity does not exist in her universe.

  3. subsection (a)(4)(A) — it just occurred to me that this text actually applies to post-Flashpoint Superman as well! So it’s moot whether he wanted to renounce his citizenship, because unless a special exception was made for him, he already had… when he assumed a post in the New Krypton military caste. I think if the US judiciary wanted to take things strictly there, he’d have renounced at that point, and once New Krypton ceased to exist, he’d have to apply again, now as a person with no current citizenship… the plot thickens!

  4. Love the blog! My two favorite subjects.

    When you said:
    “[Aquaman] could hold a title of nobility as long as he did not ‘accept, serve in, or perform the duties of any office, post, or employment under the government of’ Atlantis.”

    I think that also applies to the government of the United States, but for a different reason than Atlantis: if he accepted a U.S. government post the nobility clause WOULD apply to him.

  5. Even if he IS a citizen, and therefore authorized to be in the U.S., does Aquaman commit the violation of entry without inspection every time he wades ashore?

    • I’m not perfectly sure but I think that only aliens are required to use a port of entry. US citizens may enter the country freely, but in practice, this is not wise.

  6. Isn’t this at odds with Vance v. Terrazas , 444 U.S. 252 (1980)? [As referenced on the state department site]

    At least from what I recall, even when king of Atlantis, Aquaman continued to behave as if he were a US citizen and didn’t seem to have any intent to relinquish that citizenship.

    • http://www.travel.state.gov/law/citizenship/citizenship_779.html

      Seems to indicate actual analysis of his actions as King would be required.

    • From Terrazas: “In sum, we hold that in proving expatriation, an expatriating act and an intent to relinquish citizenship must be proved by a preponderance of the evidence. We also hold that when one of the statutory expatriating acts is proved, it is constitutional to presume it to have been a voluntary act until and unless proved otherwise by the actor.”

      So voluntariness may be presumed, and it would be very hard for Aquaman to argue that he was forced to assume the throne. The Court did not hold that intent could not be inferred from the alleged expatriate’s actions. From Justice Stevens’s dissent: “I agree with the Court that Congress may establish certain standards for determining whether such a renunciation has occurred. It may, for example, provide that expatriation can be proved by evidence that a person has performed an act that is normally inconsistent with continued citizenship and that the person thereby specifically intended to relinquish his American citizenship.”

      It could be argued that merely working for a foreign government (e.g. as a low-level bureaucrat) is not “normally inconsistent with continued citizenship,” but assuming the role of ruling monarch of a foreign country surely is. To claim otherwise is to say that Aquaman remained loyal to the United States while he was King of Atlantis, which would make him disloyal to Atlantis.

      Note that following Terrazas § 1481 was amended in 1986 to include an explicit requirement of intent.

  7. Is it possible that this may never actually make it to a court? I’m a little fuzzy as to exactly where Atlantis is in the DC continuity (beyond somewhere in the ocean), but it seems like they might just gloss this over for political reasons.

    Aquaman is the king of a country with which you share a long, unguarded border that he can cross at will, while the US requires pretty specific equipment to even reach his cities. He’s friendly to the US, considers himself a citizen, is viewed as a hero (even if in the shadow of more impressive people). If Atlantis is big enough, and dependent on where exactly it lies, a decent amount of shipping and flights may pass through its borders.

    So long as Atlantis and Aquaman remain friendly to the United States, it seems like it might be a bad idea to go out of the way to antagonize him. Could they just be pretending the problem doesn’t exist? Would anyone besides the government even have standing to bring it up?

    • Yes, the government could simply ignore the issue, and the federal government is probably the only party with standing, although Arizona’s efforts to take on a more active role in policing illegal immigration may, if upheld, mean that it could also be a state issue.

      But look at what happened with Superman’s renunciation: It was turned into a minor political issue even though Superman is a fictional character and the renunciation was non-canon. Now imagine what would happen if he really did exist. There would definitely be political hay made out of it, if only in the form of political posturing and bluster, just as happened in the real world. I think it would be very realistic for at least a vocal minority of politicians to say Aquaman can’t be trusted, shouldn’t even be an American citizen, should be deported, etc. Would anything actually come of it? Maybe, maybe not, but it wouldn’t be ignored, either.

    • There are areas that the government simply doesn’t rule on. For example in my state the state government is doing its best not to have a formal policy on some aspects of Muslim culture* because the legislators and bureaucrats apparently feel that the benefits of having a uniform policy would be outweighed by the political costs whichever side they agreed with. It’s possible for a government to avoid making an issue of something if it doesn’t want to, but in cases like citizenship and individuals who may or may not follow U.S there at least would be talk about it.

      *Specifically burials. They do however apply health laws to restaurants and butchers that follow Muslim guidelines.

  8. I can think of two real-life instances of United States natives becoming members of the royalty of other countries: Grace Kelly, aka Princess Grace of Monaco, and Queen Noor of Jordan. According to Wikipedia, Noor voluntarily renounced her US citizenship upon her marriage to King Hussein; however, Princess Grace retained dual citizenship after marrying Prince Rainier.

    Although both countries are constitutional monarchies in which the prince or king is the head of state. Being married to the head of state and having the title that goes with it probably wouldn’t constitute an office, post, or employment.

    • “Being married to the head of state and having the title that goes with it probably wouldn’t constitute an office, post, or employment.”

      On the balance of things, it may be that Lisa Najeeb Halaby had more to lose by not giving up her American citizenship. After all, she became Queen of a Middle Eastern country and was not only an American citizen but also the daughter of an American government official who had served as Deputy Assistant Secretary of Defense in the Truman administration. Geographically, Jordan is located between Iraq and a hard place (Israel). To this day she retains the official title of “Her Majesty” Queen Dowager even though she is NOT the mother of King Abdullah II. (King Hussein married four times, twice to Egyptian citizens of Jordanian background, once to a British citizen and once to an American citizen. King Abdullah II is the son of Antoinette Avril Gardiner: I don’t know if she retained British citizenship or not as she was never Queen of Jordan but she did continue to live in Jordan after her divorce in 1971 and is currently known as Her Royal Highness Princess Muna al-Hussein.)

    • But I believe that Grace Kelly’s children also have dual citizenship (gained as the natural born children of an American citizen). And as such Prince Albert, who is now the ruling prince of Monaco, would have “employment” granted as a condition of his title. Did he have to give up his American citizenship when he came to the throne?

      And, Martin Phipps, Queen Noor is correctly the Queen Dowager, despite not being the Queen Mother. Dowager, or dower, means widow, so she holds that title as the widow of the former king not due to any relationship with the current king, as would be true if she held the title of Queen Mother.

  9. Here’s my thought: The Queen of England is not a citizen of the United Kingdom (hence why she can’t vote, only her subjects can), as I understand it. Couldn’t it be that “Arthur Curry” is essentially an American (of free and clear citizenship) who Atlanteans merely acknowledge as their ruler? Almost a Corporate state with him as the sole shareholder or Principal-Agent relationship with his subjects as agents not fellow countrymen?

  10. Let me split a hair:

    “accepting, serving in, or performing the duties of any office, post, or employment under the government of a foreign state or a political subdivision thereof, after attaining the age of eighteen years if he has or acquires the nationality of such foreign state”

    A King is not under the government — he is above it.

    • Since the purpose of the statute is to avoid allowing someone to maintain US citizenship while owing their allegiance to a foreign country, it would be absurd to say one can remain a US citizen while King of a foreign country yet cannot do so while employed as a petty bureaucrat in that country’s government. Although the plain language of the statute may not apply to a monarch, courts can bend the plain language of a statute in order to avoid an absurd result.

  11. Aquaman was born on land in America. Therefore he is an American citizen. There’s no need for him to renounce his citizenship because no one believes Atlatis exists in the new 52.

    • Well, first off, no one doubts that Aquaman was an American citizen by birth. The issue is whether ascending to the throne of Atlantis would cause him to lose that citizenship. Regarding belief in Atlantis: Some of these issues apply to previous incarnations of Aquaman, in which case Atlantis was well-known to exist. Moreover, I suspect it’s only a matter of time before the existence of Atlantis becomes known in the New 52.

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