Michael WANG, Petitioner-Appellant, v. Robert MASAITIS, U.S. Marshal, Respondent-Appellee, 416 F.3d 992

Opinion by Judge HAWKINS; Dissent by Judge FERGUSON MICHAEL DALY HAWKINS, Circuit Judge. We must decide whether, under the Treaty Clause of the Constitution, the United States may enter into a “treaty” with a non-sovereign entity, such as Hong Kong. We conclude that such a treaty is constitutional, and therefore uphold the validity of the “Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders” (“Extradition Agreement”).

We also hold that a magistrate judge has jurisdiction under the Federal Magistrates Act to issue a Report and Recommendation (“R & R”) regarding a habeas petition without the defendant’s explicit consent. I. BACKGROUND In 2003, Hong Kong Magistrate Bina Chainrai issued a warrant authorizing Michael Wang’s arrest. The warrant listed eighteen counts of theft (adding up to $15,834,000 in Hong Kong currency) and two counts of dealing with property known or believed to represent proceeds of an indictable offense.

After the Hong Kong Department of Justice formally requested Wang’s surrender pursuant to the Extradition Agreement, the United States filed a request to extradite him. United States Magistrate Judge Rosalyn M. Chapman held a hearing, found that all of the requirements for the extradition had been met, and issued an order certifying Wang’s extraditability.

Wang filed a habeas petition challenging the extradition ord'er, contending (1) that the court lacked subject matter jurisdiction to certify extradition because the Extradition Agreement between the United States and Hong Kong is not a proper “treaty” under the Constitution, and (2) that no probable cause supports certain charges against him. Wang’s habeas petition was heard by Magistrate Judge Chapman, who issued a R & R to District Judge Christina A. Snyder. Although Wang did not explicitly consent to Magistrate Judge Chapman’s review of his habeas petition, Wang made no objection to her appointment.

Judge Snyder conducted a.de novo review of the R & R, approved and adopted the R & R, and entered an order denying the petition for habeas corpus. II. DISCUSSION On July 1, 1997, the United Kingdom returned sovereignty over Hong Kong to China. See 22 U.S.C. § 5701. The Hong Kong Special Administrative Region (“HKSAR”) of China was set up “to enjoy a high degree of autonomy on all matters other than defense and foreign affairs.” Id.

The transfer of sovereignty implemented a “one country, two systems” policy, “under which Hong Kong will retain its current lifestyle and legal, social, and economic systems until at least the year 2047.” Id. From 1977 to June 30, 1997, extradition relations between the United States and Hong Kong were governed by an extradition treaty between the United States and the United Kingdom.

In light of the transfer of sovereignty over Hong Kong from the United Kingdom to China, the United States and Hong Kong concluded the Extradition Agreement, for which President Clinton requested the Senate’s advice and consent to ratify “as a treaty.” China had already approved Hong Kong entering into the agreement. The Senate subsequently ratified the Extradition Agreement. See 143 Cong. Rec. S 11165 (Oct. 23,1997). A.

Political Question The government argues that the constitutionality of the Extradition Agreement is a nonjusticiable political question, framing the issue as whether Hong Kong is a “sufficiently sovereign foreign power for the purpose of entering into a treaty.” However, this court need not decide the status of Hong Kong’s sovereignty. Rather, the constitutional issue that Wang has raised is whether the term “treaty” in the Treaty Clause encompasses agreements with non-sovereigns, such as Hong Kong— and that question is clearly justiciable under Baker v.

Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). The Second Circuit’s separation of justi-ciable and nonjusticiable issues regarding the Hong Kong Extradition Agreement is instructive: Federal courts lack the authority and institutional competence to make the political judgments involved in ascertaining the legitimacy of foreign systems. Thus, in this case, it is not for the courts to decide whether the HKSAR government is a legitimate government. Instead, our role is limited to answering the prior definitional question: what does the term “foreign government” in the extradition statute mean?

More precisely, the question we must answer is whether the government of a subs-overeign constitutes a “foreign government” or the government of a “foreign country” for purposes of [18 U.S.C.] § 3184. Put another way, for most purposes of United States foreign relations, the HKSAR government is the government of Hong Kong because it has been recognized as such by the Executive, but it is a “foreign government” within the meaning of the extradition statute only if the judiciary interprets that term to encompass subsovereigns. Cheung v. United States, 213 F.3d 82, 89 (2d Cir.2000) (citing Baker v.

Carr, 369 U.S. at 212, 82 S.Ct. 691).

Though we answer a slightly different definitional question — whether the President may enter into a treaty with a non-sovereign, under the Treaty Clause — the principle is the same, relying on Baker’s distinction between discerning a nation’s sovereignty (a political question) and interpreting the impact of that status on the law (a judicial one): While recognition of foreign governments ... strongly defies judicial treatment ... and the judiciary ordinarily follows the executive as to which nation has sovereignty over disputed territory, once sovereignty over an area is politically determined and declared, courts may examine the resulting status and decide independently whether a statute applies to that area. 369 U.S. at 212, 82 S.Ct. 691 (footnote omitted).

China’s sovereignty over Hong Kong (and by corollary Hong Kong’s subs-overeign status) has been resolved by the executive branch, and we do not question that judgment. However, this court may examine the resulting status of Hong Kong, and decide whether the Treaty Clause applies to Hong Kong as a constitutionally cognizable treaty party.

Baker’s six factors to determine whether an issue is a nonjusticiable political question supports finding justiciability here: Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political, decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217, 82 S.Ct. 691. “Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question’s presence.” Id. (emphasis added). Justice Powell distilled the Baker test into three inquiries: “(

i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?” Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (Powell, J., concurring).

In applying the Baker/Goldwater factors, it is important to note that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance,” Baker, 369 U.S. at 211, 82 S.Ct. 691, and that “not every matter touching on politics is a political question.” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 229, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) (citing Baker, 369 U.S. at 209, 82 S.Ct. 691). 1. No Textually Demonstrable Commitment The issue here is whether the term “treaty” in the Treaty Clause encompasses agreements with non-sovereigns.

On this issue of constitutional

interpretation, there is no “textually demonstrable constitutional commitment of the issue to a coordinate political department,” Baker, 369 U.S. at 217, 82 S.Ct. 691, i.e. to the President. Rather, the text is silent, and the dissent concedes as much. (See Dissent.) 2.

No Lack of Judicially Discoverable and Manageable Standards; No Requirement for an Initial Policy Determination The second Goldwater factor lumps together the second and third Baker inquiries — whether there is “a lack of judicially discoverable and manageable standards” and whether a decision is impossible “without an initial policy determination of a kind clearly for nonjudicial discretion.” See Goldwater, 444 U.S. at 999, 100 S.Ct. 533 (Powell, J., concurring).

Nowhere do we make an explicit or implicit policy determination that an extradition agreement, or foreign relations generally, with Hong Kong is a good or bad thing. The neutral analysis of the Indian treaty line of cases to fill in the silence of the Treaty Clause utilizes regular means of constitutional

interpretation. “Resolution of the question may not be easy, but it only requires us to apply normal principles of

interpretation to the constitutional provisions at issue.” Cf. id. The dissent’s disagreement with the Indian treaty analogy does not make the analysis judicially unmanageable or policy-oriented. 3. Prudential Considerations The remaining Baker inquires may be seen as prudential considerations, the third of the Goldwater inquiries. The dissent is concerned that addressing the requirements of the Treaty Clause would risk the nation’s ability to speak with one voice in the field of foreign affairs with Hong Kong. (Dissent.) Though a valid concern, it is overstated.

Even if the court were to find that the Treaty Clause did not encompass agreements with non-sovereigns, the President could still enter into an executive agreement, or pass legislation with both houses of Congress, that would establish identical extradition obligations (and other treaty obligations) between the United States and Hong Kong. The court is “cognizant of the interplay” between the

interpretation of the Treaty Clause and the conduct of this Nation’s foreign affairs, but one of the judiciary’s characteristic roles is to interpret the Constitution, and “we cannot shirk this responsibility merely because our decision may have significant political overtones.” Cf. Japan Whaling, 478 U.S. at 230, 106 S.Ct. 2860 (addressing whether two statutes required the Secretary of Commerce to act contrary to an executive agreement, despite contention of “embarrassment from multifarious pronouncements by various departments”). Thus, we conclude that the issue presented is justiciable. B.

The United States May Enter Into a Treaty with a Nonr-Sovereign We review whether a constitutionally valid extradition treaty exists de novo. In the Matter of Then v. Melendez, 92 F.3d 851, 853 (9th Cir.1996). 1. The Text, Framer’s Intent, and the Indian Treaties The text of the Treaty Clause of the United States Constitution and the extradition statute are silent as to the definition of the term “treaty.” “The power to make treaties is given by the Constitution in general terms, without any description of the objects intended to be embraced by it....” Holmes v.

Jennison, 39 U.S. 540, 569, 14 Pet. 540, 10 L.Ed. 579 (1840). Treaties enacted pursuant to

Article II receive a presumption of constitutionality. See In re Airerash in Bali Indonesia on April 22, 1971, 684 F.2d 1301, 1309 (9th Cir.1982). Wang argues that the United States cannot constitutionally enter into a “treaty” with a non-sovereign such as Hong Kong. However, there is no credible source that supports the proposition that the Treaty Clause permits only a treaty with a sovereign nation.

Indeed, it would be difficult for the Founders to have this thought at the drafting of the Constitution, since, as Wang concedes, non-sovereign entities “were not prevalent in 1787.” The Second Circuit has upheld the constitutionality of the Hong Kong Extradition Agreement. See Cheung, 213 F.3d 82. The reasoning of the Second Circuit is persuasive: Although the term “treaty” is commonly understood in modern usage as a “con-tractu between independent nations,” the term was not necessarily so limited in the mid-19th century (or now) when the federal extradition statute was enacted.

It is true that at the time Congress passed the act, the United States had ratified only two extradition treaties, both with sovereign nations— France and England. However, the United States had also ratified hundreds of treaties with Indian tribes or nations.

From the first years of our constitutional republic, the Indian treaties have enjoyed a status “on a par with foreign treaties.” This has been the case even though Indian treaty partners have been described as “domestic dependent nations” insofar as they had ceded powers generally associated with sovereignty, including the right freely to carry out foreign relations and trade. Thus, it is clear that the term “treaty” had a meaning broader than an agreement between fully sovereign or independent entities. Cheung, 213 F.3d at 89-90 (citations omitted).

The Supreme Court’s treatment of United States treaties with Indian nations, despite an evolving debate about their sovereignty status, as constitutionally valid, see, e.g., United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 196, 23 L.Ed. 846 (1876), Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 204, 119 S.Ct. 1187, 143 L.Ed.2d 270 (1999), strongly suggests that the Treaty Clause does not preclude the United States from entering into treaties with non-sovereigns. 2.

The Significance of 25 U.S.C. § 71 Wang also argues that the 1871 implementation of 25 U.S.C. § 71, which prohibits future contracts “by treaty” with Indian nations (without invalidating or impairing prior treaties), demonstrates that the Congress and President interpreted the term “treaty” only as an inter-sovereign agreement.

Thus, Wang argues that Cheung incorrectly concluded that the United States may enter into a treaty with a non-sovereign “by mistakenly assuming that pre-1871 Indian tribes were non-sovereign entities.” First, it is a stretch to argue that based on United States relations with Indian nations via an 1871 statute, without any

interpretation of the Treaty Clause, the term “treaty” should be constitutionally defined solely as between two sovereigns. Whatever the Congress and the President may have believed in 1871 about treaties and sovereignty, it is well-established that it is the judicial branch that is endowed with the duty of constitutional

interpretation. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). And, to date, there is no Supreme Court precedent specifically holding that a treaty between a sovereign and non-sovereign is unconstitutional. Second, as Cheung points out, pre-1871 decisions did refer to Indian nations as non-sovereign, or at least as less than fully sovereign. See, e.g., Cherokee Nation v. Georgia, 30 U.S. 1, 17-18, 5 Pet. 1, 8 L.Ed. 25 (1831); see also Johnson v.

M'Intosh, 8 Wheat. 543, 21 U.S. 548, 574, 5 L.Ed. 681 (1823) (Indian “rights to complete sovereignty, as independent nations, were necessarily diminished”); but see Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559, 8 L.Ed. 483 (1832) (describing Indian nations as “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil”).

Thus, the United States’ history of treaties with nonsovereign Indian nations fills in the silence of the Treaty Clause and the extradition statute with respect to the term'“treaty”: it is constitutional for the United States to enter into a treaty with a non-sovereign, such as Hong Kong. C. Appointment of Same Magistrate Judge to Handle Extradition Certification and Habeas Challenge Was Proper We review the “scope of authority and powers of a magistrate judge” de novo. United States v. Sanchez-Sanchez, 333 F.3d 1065, 1068 (9th Cir.2003).

The jurisdiction and powers of magistrate judges are enumerated in 28 U.S.C. § 636 of the Federal Magistrates Act.

Section 636(b)(1)(

A) allows a district judge to designate a magistrate to hear and determine any pretrial matter, except eight types of motions (none of which pertain to Wang’s case).

Section 636(b)(1)(

B) permits a district judge to designate a magistrate to conduct hearings and submit proposed findings of fact and recommendations for the disposition of (1) any motion excepted in § 636(b)(1)(A), (2) applications for post-trial relief made by individuals convicted of criminal offenses, and (3) prisoner petitions challenging conditions of confinement. Finally, there is a catch-all provision, § 636(b)(3), which permits a district court judge to assign the magistrate any additional duties not inconsistent with the Constitution and the laws of the United States.

The United States District Court for the Central District of California issued General Order 01-13, which fills in specific additional duties' assigned to magistrate judges. Federal habeas corpus petitions and extradition proceedings are among the types of cases assigned to magistrates. The Order explains that once a case is randomly assigned to a magistrate judge for a report and recommendation (as Magistrate Judge Chapman was assigned to Wang’s extradition proceeding), all subsequent habeas corpus cases filed by the same party shall be assigned to the same magistrate judge.

Thus, under General Order 01-13, Magistrate Judge Chapman was well within her authority to issue a R & R for Wang’s habeas petition. The issue presented here is whether, in this scenario, the magistrate judge exceeded the authority granted under § 636(b)(3)— the catch-all provision. Wang argues that Magistrate Judge Chapman lacked jurisdiction under § 636 to submit a R & R because he did not explicitly consent to his habeas petition being handled by a magistrate. Under United States v.

Gomez-Lepe, 207 F.3d 623, 628-29 (9th Cir.2000), consent is the most important factor in determining what the catch-all provision encompasses, when the matter at issue is a “critical stage” of the proceedings (as opposed to a “subsidiary” one). Gomez-Lepe goes on to explain that “where discretion is exercised, the scope of [the] magistrate judge’s authority is construed more narrowly.”. Id. at 629. For example, duties that require a “final and independent determination of fact or law” would necessitate consent. Id.

Here, the magistrate judge’s R & R was not a final and independent determination of fact or law, as the district judge reviewed the habeas petition de novo. Thus, the issuance of the report was not a “critical stage” of the proceedings. ■ United States v. Rivera-Guerrero, 377 F.3d 1064 (9th Cir.2004), makes clear that Magistrate Judge Chapman did not exceed her authority in issuing the R & R. In Riverar-Guerrero, the district court had erred in delegating to the magistrate judge a final determination regarding involuntary medication.

We acknowledged that the issue of involuntary medication is of “clear constitutional importance” and “[allowing a magistrate judge to make the ultimate decision in a matter of such clear constitutional import would .raise serious

Article III concerns.” Id. at 1070. However, the court found “no statutory or constitutional concerns raised by allowing the magistrate judge to submit proposed findings and recommendations on the involuntary medication determination to the district court for de novo review.” Id. The court went even further, making a broad statement about delegations to magistrates involving de novo review by the district judge: Raddatz makes clear that the delegation to magistrate judges of matters that implicate constitutional rights for proposed findings and recommendations is constitutional so long as the findings and recommendations are subject to de novo review by an

Article III judge. Id. (citing United States v. Raddatz, 477 U.S. 667, 683, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)). There is no reason to question the de novo review done by Judge Snyder here. The Order adopting the R & R states that “the Court reviewed the Petition and other papers along with the attached Report and Recommendation ... as well as petitioner’s objections and respondent’s response to petitioner’s objections, and has made a de novo determination.” Considering this de novo review, there was no violation of the Federal Magistrates Act or a deprivation of review by an

Article III judge. CONCLUSION For all of the foregoing reasons, the extradition of Wang is constitutional, and the issuance of the R & R by Magistrate Judge Chapman comported with the Federal Magistrates Act. AFFIRMED. . The Department of State listed the Extradition Agreement in "Treaties in Force, A List of Treaties and Other International Agreements of the United States in Force on January 1, 2004.” . The Treaty Clause states that the President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” U.S. Const. Art.

II, § 2, Cl. 2. . 18 U.S.C. § 3184 authorizes extradition of fugitives from foreign countries "[wjhenever there is a treaty or convention for extradition between the United States and any foreign government.” . Ninth Circuit, Tenth Circuit, and Fourth Circuit district courts have also upheld this treaty. In Re Coe, 261 F.Supp.2d 1203 (C.D.Cal.2003); In the Matter of Seong-I, 346 F.Supp.2d 1149 (D.N.M.2004); United States v. Sai-Wah, 270 F.Supp.2d 748 (W.D.N.C.2003). . As the Supreme Court described in United States v.

Lara, 541 U.S. 193, 124 S.Ct. 1628, 1634-35, 158 L.Ed.2d 420 (2004), Congress has "authorized at different times very different Indian policies;” "[sjuch major policy changes inevitably involve major changes in the metes and bounds of tribal sovereignty.” . "From the commencement of its existence, the United States has negotiated with the Indians in their tribal condition as nations, dependent, it is true, but still capable of making treaties.” . In discussing an 1837 treaty with the Chippewa Indians, the Court stated: Indian treaty rights can coexist with state management of natural resources.

Although States have important interests in regulating wildlife and natural resources within their borders, this authority is shared with the Federal Government when the Federal Government exercises one of its enumerated constitutional powers, such as treaty making. U.S. Const., Art.

VI, cl. 2. (citing, as an example, Forty-Three Gallons of Whiskey, 93 U.S. 188, 23 L.Ed. 846). . 25 U.S.C. § 71 states, in relevant part: “No Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March 3, 1871, shall be hereby invalidated or impaired.” .

It is worth noting that the 1871 passage of 25 U.S.C. § 71 had as much to do with the irritation of the House of Representatives with being left out from the regulation of Indian affairs as it had to do with Indian sovereignty. See Blake v. Arnett, 663 F.2d 906, 910 (9th Cir.1981) (describing 1871 Act "at least in part the result of political infighting in Congress.”). . The Supreme Court recounted the status of Indian tribes: [Indian tribes] are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens.

They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper.... Treaties were made with some tribes by the state of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that state, taking back a limited grant to themselves, in which they admit their dependence.

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations.

They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father.

They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and

an act of hostility. 30 U.S. at 17-18 (emphasis added). . As the government concedes, § 636 does not explicitly provide for the preparation of a R & R regarding a habeas petition challenging an extradition order. Therefore, the magistrate judge's jurisdiction, if any, must lie in the catch-all provision § 636(b)(3). . The Rivera-Guerrero court analyzed the issue both as a duty under § 636(b)(1)(

B) and § 636(b)(3), id. at 1070, so the decision's reasoning applies here. . Of course, de novo review of a R & R is only required when an objection is made to the R & R, United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003) (en banc) (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct”), as Wang objected in this case.