56131/608
Decided by the Board November 13, 1943.
Canadian Indians — Exclusion — Deportability.
1. American Indians born in Canada are not subject to the excluding provisions of any of the immigration laws.
2. American Indians born in Canada are deportable only on grounds arising subsequent to entry, and since they may reenter without hindrance immediately after deportation an order of deportation will only be made when they are undesirable residents of the United States.
CHARGES:
Warrant: Act of 1917 — Became a public charge within 5 years after entry. Act of 1917 — Afflicted with loathsome or dangerous contagious disease at time of entry, syphilis. Act of 1917 — Likely to become a public charge at time of entry.
Mr. Max Wilfand, Board attorney-examiner.
STATEMENT OF THE CASE: After a hearing the presiding inspector found the respondent deportable on the first two charges stated above and recommended his deportation. The Central Office of the Immigration and Naturalization Service recommends that because the respondent is a Canadian-born American Indian, only the deportation charge that arose after entry be sustained, and that he be deported. The respondent claims that his status as an American Indian prevents him from being deported.
DISCUSSION: The respondent was born in Canada on August 24, 1917, and is a full-blooded North American Indian duly registered as a member of the Chemainus Band and a ward of the Canadian Government. He has never been enfranchised, and under Canadian law he is recognized as an Indian by the Canadian Government. There is no question that the respondent is an American Indian born in Canada, and as such entitled to whatever benefits such Indians have under American laws. The only issue raised is as to the deportability of such aliens.
Revised Statutes of Canada, 1927, ch. 98, secs. 2 (d), 110-114.
Prior to the Immigration Act of 1924, Canadian Indians were considered free to cross the border without regard to the immigration laws. This right was to a large extent based on article III of the Jay Treaty of 1794, which was felt to have survived the War of 1812 and which provided in part as follows:
It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective territories and countries of the two parties, on the continent of America * * *.
This provision was confirmed by the Treaty of 1796, which was entitled "Explanatory Article to the Third Article of the Treaty of November 19, 1794, Respecting the Liberty to Pass and Repass the Borders and to Carry on Trade and Commerce."
Subsequent to the passage of the Immigration Act of 1924 an attempt was made to exclude such Indians on the ground that they were inadmissible to the United States under section 13 (c) of said act as of a race ineligible to citizenship. The controversy that arose over the use of the Immigration Act of 1924 to bar these Indians from admission to the United States resulted in the introduction of legislation that eventually became the Act of April 2, 1928. Prior, however, to the enactment of this statute, the Circuit Court of Appeals for the Third Circuit held ( McCandless v. United States ex rel. Diabo, 25 F. 2d 71 (March 9, 1928)) that the Jay Treaty, insofar as it affected the rights of Indians of the Six Nations Tribe, survived the War of 1812, and that the immigration laws did not apply to them. The Act of April 2, 1928, still in effect, reads as follows:
That the Immigration Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption.
On June 1, 1928, the Solicitor General of the United States recommended that no appeal be taken to the Supreme Court in the Diabo case. He pointed out in his memorandum that there was a substantial ground for believing that the War of 1812 did not abrogate the Jay Treaty and that even if it did, the Treaty of Ghent might have been construed as restoring the privilege to the Indians. He also felt that the immigration laws could be interpreted not to apply to Indians and not to abrogate or suspend the right of these Indians to pass the boundary line as provided for in the Jay Treaty. Finally he said the following with respect to the Act of April 2, 1928:
Art. IX of this treaty, signed in 1814, provides:
"The United States of America engage to put an end, immediately after the ratification of the present treaty, to hostilities with all the tribes or nations of Indians with whom they may be at war at the time of such ratification; and forthwith to restore to such tribes or nations, respectively, all the possessions, rights, and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities."
The Act of April 2, 1928, read in the light of the Congressional Record and Committee Reports, seems a definite legislative recognition of some right which American Indians born in Canada have to pass the borders of the United States which is peculiar to them as Indians. The act provides that the Immigration Act of 1924 shall not be construed to apply to the right of American Indians born in Canada to pass the borders of the United States, thus recognizing the existence of a "right." I do not know what right could be referred to other than that recognized in the Jay Treaty and in the practice of allowing North American Indians to pass back and forth across the Canadian boundary in their wanderings without interference. The Report of the Committee on Immigration and Naturalization dealt with H.R. 11351, which became the Act of April 2, 1928, and refers to the fact that for over a century the Indians of the North American tribes resident in Canada and the United States adjacent to the Canadian boundary have been accustomed to going back and forth, and that this freedom of movement was not questioned until the enactment of the Immigration Act of 1924.
Thereafter on July 18, 1928, General Order No. 109 was promulgated by the Immigration Service. This order, after quoting the act of April 2, 1928, read:
In view of the interpretation placed upon this statute by the Attorney General, it is hereby directed that American Indians born in Canada be permitted to enter the United States without inspection under the immigration laws. * * *.
Attorney General should probably read Solicitor General.
On April 8, 1929, the Supreme Court decided ( Karnuth v. United States, 279 U.S. 231) that the War of 1812 abrogated the Jay Treaty and, therefore, held that the alien involved in that case was subject to the provision of the Immigration Act of 1924. That case, it is important to note, did not deal with an Indian, but with a Canadian of the white race. No problem was involved therein as to the rights of Indians to freely cross the border without being subject to the immigration laws. Those rights may very well have been recognized notwithstanding the termination of the Jay Treaty by the War of 1812, especially in view of the above-quoted provision of the Treaty of Ghent. Further, we feel that the Act of April 2, 1928, as interpreted by the Solicitor General in his memorandum of June 1, 1928, upon the basis of which interpretation General Order No. 109 was issued, clarified the status of Canadian-born American Indians insofar as the immigration laws are concerned. The view contained in General Order No. 109 has been since consistently followed. The status of these Indians is now set forth in section 114.6, title 8, Code of Federal Regulations, which reads:
American Indians born in Canada shall be permitted to enter the United States without inspection under the immigration laws. This right shall not extend to persons whose membership in Indian tribes or families is created by adoption.
General Order No. 109 and its present version, as contained in section 114.6, title 8, Code of Federal Regulations, have been interpreted to mean that no Canadian-born American Indian is subject to the excluding provisions of any of the immigration laws, whether they deal with an alien's personal disqualifications or with his lack of proper documents. Because, however, an Indian is not subject to exclusion, it does not necessarily follow that he is immune from deportation. The right of the Indian freely to enter this country does not presuppose a right to remain here at his sufferance with license to engage in conduct that would subject the ordinary alien to deportation. Because an American Indian is not inadmissible to the United States, he, of course, cannot be deported under the first clause of section 19 of the Act of February 5, 1917. When the ground of deportation is one arising after entry, he may then be deported. It is true that after deportation is effected, the Indian may then immediately without any hindrance return to the United States and remain here until perchance a new ground of deportation arises. Deportation might, therefore, appear to be a useless gesture. In practice, however, it would not prove futile. These Indians are wards of the Canadian Government, and that government's administration of its Indian laws may be looked to in preventing the burdening of this country with Indians who are deemed unworthy residents of the United States. For the foregoing reasons it has been administratively determined that only those Indians who are considered undesirable, whether because they are criminals or have certain physical or mental disqualifications, will be ordered deported.
Instruction No. 9 of January 23, 1941, of the Immigration and Naturalization Service exempts American Indians born in Canada from the documentary requirements of sec. 30 of the Alien Registration Act of 1940 and the passport requirements of the existing Executive order.
That at any time within 5 years after entry, any alien who at the time of entry was a member of one or more of the classes excluded by law * * * shall * * * be taken into custody and deported * * *.
From the foregoing it is clear that the last two grounds of deportation stated above cannot be sustained. They fall within the first clause of section 19 of the Act of February 5, 1917. The charge that the respondent became a public charge within 5 years after entry from causes not affirmatively shown to have arisen subsequent to entry subjects him to deportation if supported by the evidence.
The respondent last entered the United States at Blaine, Wash., on November 11, 1941. On October 23, 1942, he was admitted to the Spokane County Hospital, which is supported by State and county funds. He was then suffering primarily from a swollen foot which was diagnosed as acute arthritis. Laboratory tests of his blood and spinal fluid were taken and indicated that he had syphilis, which involved not only the blood stream but also the cerebrospinal system. Because of this latter involvement the county physician was of the opinion that the syphilis had been present or had been contracted more than 5 years prior to his admission to the hospital. He was of the further opinion that the syphilitic condition was the primary cause for the arthritic condition of his foot. The respondent does not question this diagnosis of the county physician. He was discharged from the hospital on January 27, 1943, and the charges incurred by him while there have never been paid. The respondent has clearly been a public charge within 5 years after entry, and the causes have not been affirmatively shown to have arisen subsequent thereto. In fact, the evidence shows that they arose prior to his last entry. The first charge contained in the warrant of arrest is therefore sustained.
FINDINGS OF FACT: Upon the basis of all the evidence presented, it is found:
(1) That the respondent is a full-blooded unenfranchised American Indian born in Canada attached to the Chemainus Band;
(2) That the respondent last entered the United States at Blaine, Wash., on November 11, 1941;
(3) That on October 23, 1942, the respondent was admitted to the Spokane County Hospital suffering from an arthritic condition of his foot;
(4) That said condition was caused by a syphilitic condition, which was in existence prior to his entry into the United States;
(5) That the Spokane County Hospital is supported by public funds, and that the respondent has not paid the charges incurred by him while there.
CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under section 19 of the Act of February 5, 1917, the respondent is subject to deportation on the ground that he became a public charge within 5 years after entry into the United States from causes not affirmatively shown to have arisen subsequent thereto;
(2) That under sections 3 and 19 of the Act of February 5, 1917, the respondent is not subject to deportation on the ground that at the time of entry he was afflicted with a loathsome or dangerous contagious disease, to wit: syphilis;
(3) That under sections 3 and 19 of the Act of February 5, 1917, the respondent is not subject to deportation on the ground that he was a person likely to become a public charge at the time of entry;
(4) That under section 20 of the Act of February 5, 1917, the respondent is deportable to Canada at Government expense.
OTHER FACTORS: The respondent has no family ties in this country and has no fixed domicile or any occupation. He had gonorrhea in 1937 for which he admits he received no treatment. A Wassermann test performed in March 1943 proved positive. Apparently he is now taking treatment for his syphilitic condition. He admits to various arrests for drunkenness in Canada and the United States. On the basis of this record we do not feel that the alien is a particularly desirable person. There are no compelling reasons why he should be permitted to remain in this country. We shall accordingly enter an order for his deportation to Canada.
ORDER: It is ordered that the alien be deported to Canada at Government expense on the following charge: That he is in the United States in violation of the Act of February 5, 1917, in that he became a public charge within 5 years after entry into the United States from causes not affirmatively shown to have arisen subsequent thereto.