56143/741
Decided by the Board June 26, 1944. Approved by the Attorney General July 27, 1944.
Crime Involving Moral Turpitude — Unlawful sale of liquor to Indian.
Unlawful sale of liquor to an Indian over whom the Government exercises control, in violation of section 241 of title 25, U.S.C., is not an offense involving moral turpitude.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — Immigrant without an immigration visa.
Executive Order No. 8766 — No passport.
Act of 1917 — Likely to become a public charge.
Act of 1917 — Convicted of crime involving moral turpitude; Unlawful sale of liquor to Indian (two offenses), in violation of section 241, title 25, U.S.C.
BEFORE THE BOARD
Discussion: The appellant is a native and citizen of Canada, who applied on May 14, 1943, at Blaine, Wash., for admission to the United States as a returning legally resident alien. He was found to be inadmissible by a Board of Special Inquiry, on the grounds stated above, and has appealed from that decision.
The appellant has been certified to be free from any mental or physical defect. While he is in possession of only $7 and has $40 or $50 in Seattle, Wash., he has resided in the United States continuously since October 31, 1923, at which time he was admitted for permanent residence, and there is no evidence that he has ever become a public charge or that he may become one in the future.
The Central Office of the Immigration and Naturalization Service recommends as follows:
The cause of exclusion is sustained only as to the visa and passport grounds. The offense of sale of intoxicating liquors to an Indian does not involve moral turpitude and, since the alien is in good health, is employed and is not shown to have been a recipient of public aid of any kind in the past, it cannot be said that he is likely to become a public charge under the law. [Italics supplied.]
The alien first entered the United States in 1902 and remained here until 1911 when he returned to Canada for a period of twelve years. He legally entered the United States in 1923 and was admitted for permanent residence. The appellant resided here continuously until 1943, except for a three-month excursion to Canada. On May 7, 1943, the alien left the United States for temporary employment in Alaska after securing a permit to enter from the Commanding General of the 4th Army Command. He discovered that as a Canadian citizen he was not eligible to the rate wage paid to Americans and he therefore did not proceed to Alaska but sought to return to the United States.
The appellant is not in possession of an immigration visa or a passport. However, in view of his long residence in the United States and his favorable record the State Department has considered this an appropriate case for the waiver of passport and visa requirements under section 30 of the act of June 28, 1940, and Executive Order 8766. This action by the State Department permits the readmission of the alien under section 13 (b) of the Immigration Act of 1924 as a legally resident alien who is returning after a temporary visit abroad.
The sole issue presented is whether the alien is inadmissible on the basis of his convictions for the unlawful sale of liquor to an Indian. If this crime involves moral turpitude, then the alien is barred from reentering the country unless he is admitted under the seventh proviso to section 3 of the Immigration Act of 1917 as one who has had a previous unrelinquished domicile of more than 7 years. We find it unnecessary to consider the advisability of exercising the seventh proviso in this case as we are of the opinion that the crime does not involve moral turpitude.
On November 4, 1939, the appellant was convicted, on a plea of guilty of violating section 241 of title 25, U.S.C.A., which provides:
In the instant proceedings, the alien testified as follows with reference to this offense:
A. I served thirty days but it wasn't liquor to the Indians. It was merely a bottle of rubbing alcohol.
Q. But you did sell this liquor to an Indian for his consumption?
A. I bought it for him, yes. But it wasn't liquor, it was rubbing alcohol.
Q. Did you know this Indian was going to drink the rubbing alcohol?
A. I didn't know he was going to drink it.
Q. For what purpose was it your understanding he was going to use this rubbing alcohol you sold him?
A. He said he had a sore leg. He begged me to get it for him.
§ 241. Intoxicating liquors; sale to Indians or introducing into Indian country. No ardent spirits, ale, beer, wine, or intoxicating liquor or liquors of whatever kind shall be introduced, under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters, or disposes of any ardent spirits, ale, beer, wine, or intoxicating liquors of any kind to any Indian under charge of any Indian superintendent or agent, or introduces or attempts to introduce any ardent spirits, ale, wine, beer, or intoxicating liquor of any kind into the Indian country shall be punished by imprisonment for not more than two years, and by fine of not more than $300 for each offense.
Any person who shall sell, give away, dispose of, exchange, or barter any malt, spirituous, or vinous liquor including beer, ale, and wine, or any ardent or other intoxicating liquor of any kind whatsoever, or any essence, extract, bitters, preparation, compound, composition, or any article whatsoever, under any name, label, or brand, which produces intoxication, to any Indian a ward of the Government under charge of any Indian superintendent or agent, or any Indian, including mixed bloods, over whom the Government, through its departments, exercises guardianship, and any person who shall introduce or attempt to introduce any malt, spirituous, or vinous liquor, including beer, ale, and wine, or any ardent or intoxicating liquor of any kind whatsoever into the Indian country, shall be punished by imprisonment for not less than sixty days, and by a fine of not less than $100 for the first offense and not less than $200 for each offense thereafter: Provided, however, That the person convicted shall be committed until fine and costs are paid. But it shall be a sufficient defense to any charge of introducing or attempting to introduce ardent spirits, ale, beer, wine, or intoxicating liquors into the Indian country that the acts charged were done under authority, in writing, from the War Department or any officer duly authorized thereunto by the War Department.
He was sentenced to pay a fine of $1 and served 30 days in jail.
The alien was again convicted of violation of section 241 of title 25, U.S.C.A. on January 13, 1941, and was sentenced to pay a fine of $100 and serve a term of imprisonment of 1 year.
The appellant's testimony in the present proceedings with regard to this offense was as follows (R. pp. 10-11):
Q. How did you happen to get caught for selling liquor to Indians?
A. The Federal Agent give this Indian a dollar for me to go and buy a bottle and I didn't want to do it because I found some were getting arrested and I didn't want to get it, but he said, "Oh, you know me," etc., and I went and bought it and this was a marked bottle and he told the officers where I was going to make the delivery and they come around there and caught me.
The weight of judicial opinion does not impute moral turpitude to violations of liquor laws. Only a few scattered decisions are in disagreement. These cases which appear to be contrary to the weight of authority do not involve the mere unlawful sale of intoxicants and they are therefore distinguishable.
Except where the violation is accompanied by an intent to defraud the United States of revenue, U.S. v. Reimer ( 113 F. (2d) 429 (C.C.A. 2d, 1940)); Maita v. Haff ( 116 F. (2d) 337 (C.C.A. 9th, 1940)).
In Rousseau v. Weedin (284 Fed. 565 (C.C.A. 9th, 1922)) it was held that the crime of being a jointist under the laws of the State of Washington involved moral turpitude. A jointist was one who conducted a place for the unlawful sale of intoxicating liquor. Judge Learned Hand notes in United States v. Day ( 34 F. (2d) 920, 921 (C.C.A. 2d, 1929)) that Rousseau v. Weedin "was clearly another case, for the crime consisted in maintaining a resort of ill repute."
Rudolph v. United States ( 6 F. (2d) 487 (C.A.D.C., 1925)) was a decision by a divided court. The plaintiff's police pension was discontinued because of conviction of a crime involving moral turpitude, the unlawful possession and transportation of intoxicating liquors contrary to the National Prohibition Act. In ordering the dismissal of the plaintiff's writ of mandamus, the majority opinion stated at page 488: "It may well be that an unsophisticated person could be caught in the act of transporting liquor, in violation of law, under circumstances which would not justify the court in holding that the act involved moral turpitude; but this rule can hardly be applied to a police officer of many years' experience, sworn to defend and uphold the law." The dissent stated (at page 491): "The majority opinion stresses the fact that appellee subscribed to an oath. * * * The offense charged against appellee being merely malum prohibitum, and Congress having specifically declared it to be nothing more than a mere misdemeanor * * * I do not think it is for this court to give to the offense a classification inconsistent with that evidently intended by Congress."
In Ex parte Riley ( 17 F. (2d) 646 (D.C. Me., 1926)) and Riley v. Howes ( 17 F. (2d) 647, 649 (D.C. Me., 1926)) it was held that an individual who was convicted for "handling liquor on a commercial basis" was guilty of a crime involving moral turpitude in view of the fact that prohibition had become a part of our Constitution. The case was reversed on appeal on the ground that alienage had not been established ( 24 F. 2d 686, C.C.A. 1st, 1928).
It should also be noted that the above cases were decided during the prohibition era. The repeal of prohibition is an indication of our national attitude toward traffic in intoxicating beverages.
In United States v. Day, 34 F. (2d) 920 (C.C.A. 2d, 1929), an alien had been fined and imprisoned for unlawfully possessing and selling whisky. He failed to disclose these convictions when he obtained his visa. In ruling that the suppression of these facts were irrelevant and therefore not a bar to the alien's admission, the court said, through Judge Learned Hand:
We do not regard every violation of a prohibition law as a crime involving moral turpitude. No doubt it is the solemnly declared policy of this country that liquor shall not be made, sold, or possessed, but the standard set up in sections 3 and 19 of the act of 1917 (8 U.S.C.A. §§ 136, 155) was purposely narrower than that. All crimes violate some laws; all deliberate crimes involve the intent to do so. Congress could not have meant to make the willfulness of the act a test; it added as a condition that it must itself be shamefully immoral. There are probably many persons in the United States who would so regard either the possession or sale of liquor; but the question is whether it is so by common conscience, a nebulous matter at best. While we must not, indeed, substitute our personal notions as the standard, it is impossible to decide at all without some estimate, necessarily based on conjecture, as to what people generally feel. We cannot say that among the commonly accepted mores the sale or possession of liquor as yet occupies so grave a place; nor can we close our eyes to the fact that large numbers of persons, otherwise reputable, do not think it so, rightly or wrongly.
If a liquor violation did not involve moral turpitude during the days when prohibition was our national policy it follows a fortiori that today such violation does not impute moral depravity.
In Coykendall v. Skrmetta ( 22 F. (2d) 120 (C.C.A. 5th, 1927)) the court set aside a deportation order based upon a conviction for the unlawful manufacture and possession of intoxicating liquor. It was stated at page 121:
Before the enactment of statutes on the subject, the making or possession of wine for the use of the maker as a beverage was not generally regarded as morally wrong. From the fact that those acts have by statute been made punishable as crimes it does not follow that they are inherently immoral, or involve moral turpitude within the meaning of the provision in question. * * * We conclude that the deportation order was not sustainable * * *.Bartos v. United States District Court ( 19 F. (2d) 722 (C.C.A. 8th, 1927)) concerned the disbarment of an attorney on the charge that his conviction for unlawfully making beer for his own use was a crime involving moral turpitude. The court held that the attorney's conviction imputed no moral turpitude.
Fort v. City of Brinkley ( 87 Ark. 400, 112 S.W. 1084 (1908)) involved the revocation of a physician's license on the ground that he had been convicted of the unlawful sale of intoxicants. The court ruled that revocation was not appropriate because the crime did not involve moral turpitude, stating:
It seems clearly deducible from the above-cited authorities that the words "moral turpitude" had a positive and fixed meaning at common law, and that the illegal sale of intoxicating liquors, not being an offense punishable at common law, does not come within the definition of a crime involving moral turpitude. In a statute using a word, the meaning of which is well known, and which has a definite sense at common law, the word will be restricted to that sense.Black on Intoxicating Liquors (1892) at page 447, states:
§ 383 GRADE OF OFFENSES:
Offenses against the liquor laws, such as illegal sales of intoxicants, keeping liquor in possession with intent to dispose of it unlawfully, illegally transporting liquor from place to place, and the like, are statutory crimes, not being punishable at common law. They are also of the description mala prohibita, as there is no inherent immorality in such act, and their illegality lies only in the fact of their being positively prohibited. [Italics supplied.]
Other text writers consider the illegal sale of liquor as merely malum prohibitum (McFadden on Prohibition (1925), pp. 290-291, par. 261; and Blakemore on Prohibition (1927), pp. 221-222, par. 275).
"The traffic in intoxicating liquors is not malum in se" (33 C.J. 572). It may be noted in passing that in People v. Townsend (214 Michigan 267, 272 (1921)), a prohibition-day decision, the court stated that voluntary drunkenness was not only malum prohibitum but also malum in se. The decision related to manslaughter resulting from driving an automobile by one in an intoxicated condition. The court attributed the root of most of the world's ills to drunkenness. Nevertheless, drunkenness does not involve moral turpitude ( Inness v. State, 105 Tex. Crim. Rep. 401, 402 (1926)); Memorandum of Solicitor of Labor, April 29, 1926.
Administratively, it has been well settled that violations of liquor laws do not involve moral turpitude. In a memorandum, dated April 29, 1926, the Solicitor of Labor stated:
By statute the manufacture, sale, or transportation of intoxicating liquors, the importation or exportation thereof, within the United States and all territory subject to the jurisdiction thereof, for beverage purposes, is made an offense in this country. Such offense does not involve moral turpitude.
This view has been incorporated in the Immigration Manual of the Immigration and Naturalization Service published in 1943 (p. 6019, sec. 655.22, subdivision b (3)). And it has been recently held by this Board that conspiracies to violate those sections of the Internal Revenue Code which merely license or regulate the dispensation of liquor do not involve moral turpitude (Re: P.----, 56113/112, Oct. 12, 1943).
Since June 2, 1924, all Indians born within the United States acquire citizenship ( 8 U.S.C. 601; note 61 et. seq.) However, the status of Indian tribes in our midst is anomalous. The tribes, though in certain respects regarded as possessing the attributes of nationality, are held to be not foreign, but domestic dependent nations or communities. The regulation of liquor sales to members of Indian tribes by Congress is an exercise of its power over commerce with the Indians. In effect, 25 U.S.C. 241 is a regulatory measure which establishes prohibiting among tribal Indians. Regulatory enactments of this nature do not create crimes involving moral turpitude. A violation of the statute is no different category than any enactment promulgated by a home government in one of its colonies. To speak of the relationship of ward and guardian, or beneficiary and trustee, in an attempt to ascertain whether the crime involves moral turpitude is of no assistance. This alien was not a trustee nor was he guilty of a criminal breach of trust. As Felix S. Cohen states, at page 169, in his Handbook of Federal Indian Law (1941), "The term `ward' has been applied to Indians in many different senses and the failure to distinguish among these different senses is responsible for a considerable amount of confusion. Today a careful draftsman of statutes will not use the term `ward Indians,' or, if he uses the term at all, will expressly define it for the purposes of the statute." Tribal Indians are not incompetents, they are sui juris and are not under any physical or general legal disabilities. The issue before us is not the source of the power from which the enactment springs, but the inherent nature of the violation of law. A minor traffic violation would not become a heinous crime because committed on an Indian reservation under the control of the Government, nor would a simple assault against a tribal Indian assume the form of a depraved offense.
27 Am. Jur. 545, sec. 5.
United States v. Nice ( 241 U.S. 591, 597 (1915)).
U.S. ex rel. Andreacchi v. Curran ( 38 F. (2d) 498, (D.C.N.Y., 1926)); U.S. v. Carrollo ( 30 F. Supp. 3 (W.D. Mo., 1939)).
Tribal Indians may sue and be sued and are under no legal disabilities in the absence of specific legislation (27 Am. Jur. 550 at 552, par. 17). The position of the Indian has recently been the subject of extensive Congressional comment. Congressional Record Appendix, September 20, 1943, "Let's Treat the Red Men White," Extension of Remarks by Congressman Mundt; Congressional Record Appendix, March 6, 1944. "Investigation of American Indian," Extension of Remarks by Congressman Cochran; Congressional Record Appendix, March 10, 1944, "The Duty of Congress Toward the Indian Problem," Extension of Remarks by Congressman Jenkins; and Congressional Record Appendix, March 24, 1944, "The American Indian," Extension of Remarks by Congressman Gilchrist.
It has been recommended that Indians be treated in the same fashion as other citizens or residents and that Indians be freed of Federal wardship in any form, except those for whom the government holds property in trust (Survey of Conditions Among the Indians of the United States, S. Rept. 310, 78th Cong., 1st sess., p. 19).
An analysis of the crime with which we are concerned in the instant case reveals noteworthy features. The dispensation of liquor to all Indians is not made a crime. It is confined solely to the dispensation of liquor to Indians over whom the government exercises control.
In addition, the Government has taken the position that the statute in question proscribes the sale of nonintoxicants as well as intoxicants. Can it be said that the violation of a statute which prohibits the sale of nonintoxicants to tribal Indians involves moral turpitude?
Government's Circuit Court Brief, p. 7, in Wayne v. United States ( 138 F. (2d) 1 (C.C.A. 8th, 1943)), certiorari denied, 320 U.S. 800 (1944).
The sale of beer is likewise within the ban of the statute. Is the sale of a single glass of beer to a tribal Indian indicative of an act of baseness, vileness, or depravity?
Wayne v. United States, supra.
As indicated heretofore, the general sale of liquor in violation of law does not involve moral turpitude. Does the sale of liquor to a tribal Indian acquire any added turpitude? Certainly, it should be indicative of no greater or lesser turpitude than the unlawful sale to a person of any other race, creed or color. The sale of liquor to Indians might have been the cause of serious friction in Colonial times and in the days of Buffalo Bill. If it was the cause of our wars with the Indians in those days, and historians say it was not, it does not furnish a basis for a claim that today it is stirring up warfare between the Indian and the white man. Of course, the imbibing of liquor beyond one's capacity might occasion a breach of the peace, but that is not restricted by the texture of a man's skin. The statute in question is no more than a Prohibition Act with relation to Indians and its violation involves no greater depravity than a violation of a general Prohibition Act.
James Truslow Adams in volume 1 of his History of the United States states, at pages 68-69: "Racial pride or prejudice had prevented any fraternization between the English settlers and the savages. * * * With the exception of the Iroquois in central New York, the native for the English was neither a business partner nor a military ally. He was, for the most part, a dangerous animal, like the panthers, wolves and wildcats, or a nuisance like the stones and tree stumps, to be cleared away before advancing settlements.
"The French, on the other hand, had no racial antipathy. They became brothers of the savages, lived with them, and took Indian mistresses or wives. They were traders, adventurers, explorers, not settlers, and roamed thousands of miles in the interior of the continent, making friends of all the Indian tribes, and erecting forts and trading posts."
Finally, it should be observed that the crime does not require a mens rea. It is not a valid defense that the accused did not know that the individual to whom he dispensed liquor was an Indian, that he was an Indian under the control of the government, or that the beverage was intoxicating.
The sale of intoxicating liquor to an Indian under charge of an Indian superintendent or agent is a penal offense, 25 U.S.C. § 241. The statute does not provide in express language or by fair intendment that the act be knowingly or wilfully done, and therefore a sale to an Indian in charge of a superintendent or agent constitutes an offense without regard to whether the seller may believe that he is of some other nationality ( Hayes v. United States, 112 F. (2d) 676, 677 (C.C.A. 10th, 1940)). See also: Cohen, Handbook of Federal Indian Law (1941), p. 355, note 40.
Similarly, it has been held that the doing of an inhibited act constitutes the crime of unlawful sale of liquor to minors. The moral turpitude or purity of the motive by which it was prompted and knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt (See People v. Hershorn, 108 Colo. 43, 113 P. (2d) 680 (1941); Commonwealth v. Mixer, 207 Mass. 141, 93 N.E. 249 (1910)).
In United States v. Stofello ( 8 Ariz. 461, 76 Pac. 611 (1904)), the defendant was charged with selling intoxicating liquor to an Indian in violation of the laws of Congress. The court held that ignorance that the buyer was an Indian was not a defense, stating:
"The doing of the prohibited thing is made an offense, without regard to purpose or intent. Such crimes are in the nature of police regulations, imposing criminal penalties for their violation, without regard to purpose or intent." [Italics supplied.]
Francis B. Sayre, formerly professor of Criminal Law at Harvard Law School, classifies the offense of selling liquor to an Indian as a "public welfare offense," a minor infraction of law, requiring no mens rea (Public Welfare Offenses, 33 Columbia Law Review 55, at 72-73). He concludes by stating (p. 83):
Within comparatively recent times, however, a growing number of police offenses involving no moral delinquency are being punished without proof of any guilty intent.
* * * * * * *
In general, offenses not requiring mens rea are the minor violations of laws regulating the sale of intoxicating liquor, * * * violations of traffic or motor-vehicle regulations, or of general police regulations passed for the safety, health, or well-being of the community and not in general involving moral delinquency." [Italics supplied.]
The appendix which follows the text, lists cases of unlawful sales of intoxicating liquor to Indians (p. 85, par. 1 (d)).
We accept the classification of Professor Sayre that the instant crime does not involve moral delinquency. Certainly, a violator of the statute in question does not stamp an individual as a dangerous criminal within the contemplation of the immigration laws. A dictum by Judge Coxe in the oft cited case of U.S. ex rel. Mylius v. Uhl (210 Fed. 860, at 862 (C.C.A. 2d, 1914)) is directly in point. The court stated:
S. Doc. No. 747, 61st Cong., 3d sess. (1910-1911), vol. I pp. 34, 45; S. Rept. No. 355, 63d Cong., 2d sess. (1914), p. 11; S. Rept. No. 352, 64th Cong., 1st sess. (1916), p. 15.
A statute of the United States (Rev. Stat. § 2139) makes it a crime to give a glass of whisky to an Indian under the charge of an Indian agent. A conviction under this section would not be proof of moral turpitude, although the evidence. at the trial might disclose the fact that the whisky was given for the basest purposes.
Moral turpitude inheres in the intent and the crime involved herein requires no intent. No depraved or evil intent prompted the alien to violate the statute. He has lived here for more than twenty years and has established his home in the United States. The State Department has considered this an appropriate case for waiver of visa and passport requirements, and the Immigration and Naturalization Service does not regard the offense in question as one involving moral turpitude. (Memorandum from Mr. Shoemaker to this Board, dated August 10, 1943.)
U.S. ex rel. Mongiovi v. Karnuth ( 30 F. (2d) 825 (W.D.N.Y., 1929)); U.S. ex rel. Meyer v. Day ( 54 F. (2d) 336 (C.C.A. 2d, 1931)); U.S. ex rel. Shladzien v. Warden ( 45 F. (2d) 204 (E.D. Pa., 1930)).
No ground for exclusion is presented and we therefore find the subject admissible.
Findings of Fact: Upon the basis of all the evidence presented, it is found:
(1) That the appellant is a native and citizen of Canada;
(2) That the appellant has applied for admission to the United States as a returning legally resident alien;
(3) That the appellant was admitted to the United States for permanent residence on October 31, 1923;
(4) That the appellant departed, in transit through Canada, for Alaska on May 7, 1943, for the purpose of accepting employment in Alaska;
(5) That the appellant did not complete his journey to Alaska;
(6) That the appellant is not in possession of an unexpired immigration visa or a passport;
(7) That the Department of State has waived visa and passport requirements with respect to the appellant;
(8) That the appellant is not a person likely to become a public charge;
(9) That the appellant was convicted in the United States District Court, Eastern District of Washington, on November 4, 1939, for having on October 8, 1939, sold, given away or disposed of one pint of alcohol to an Indian who was a ward of the Government;
(10) That the appellant was convicted in the United States District Court, Eastern District of Washington, on January 13, 1941, for having on November 9, 1940, sold, given away or disposed of one quart of whiskey to two Indians over whom the Government exercised guardianship.Conclusions of Law: Upon the basis of the foregoing findings of fact, it is concluded:
(1) That under the Immigration Act of May 26, 1924, the appellant is not inadmissible to the United States in that he is an immigrant not in possession of a valid immigration visa and not exempted from the presentation thereof by said act or regulations made thereunder;
(2) That under the Passport Act approved May 22, 1918, as amended, and the act of February 5, 1917, the appellant is not inadmissible to the United States in that he did not present an unexpired passport or official document in the nature of a passport issued by the Government of the country to which he owes allegiance or other travel document showing his origin and identity, as required by Executive Order 8766;
(3) That under the act of February 5, 1917, the appellant is not inadmissible to the United States in that he is a person likely to become a public charge;
(4) That under the act of February 5, 1917, the appellant is not inadmissible to the United States on the ground that he has been convicted of a felony or other crime or misdemeanor involving moral turpitude, to wit: Selling intoxicating liquor to Indians.Other Factors: There are no other factors.
Order: It is ordered that the appeal be sustained and that the alien be admitted under section 13 (b) of the Immigration Act of 1924.
The order directed by the majority opinion in the case of C---- J---- J----, certified to me because a dissent had been recorded, is hereby affirmed.
It is the opinion of the writer that the statutory crime of which the appellant alien has twice been convicted and sentenced, of selling intoxicating liquor to an unemancipated Indian who is still a ward of the Federal Government, is a crime involving moral turpitude. This is the conclusion which was reached by the Board of Special Inquiry, which found the appellant alien to be inadmissible. I believe this decision should be sustained as correct and that the alien should stand excluded.
The issue presented is one of first impression and has never before been decided by this Board. There being no precedents which preclude our holding that the crime of selling liquor to an unemancipated ward of the Federal Government constitutes a crime involving moral turpitude, it is the opinion of the writer that according to the historical and legal standards which have existed since the earliest colonial days, the offense is so inherently wrong and harmful that it should be held to be morally turpitudinous. In fact, there has never been a time in the history of our country, for over three hundred years, when the offense has not been considered immoral and wrong and contrary to the public welfare. It cannot be seriously questioned that the offense was malum in se long before it became malum prohibitum, and therefore, necessarily involves moral turpitude.
The majority stress the alien's long prior residence of 20 years in this country. They also go behind the record of conviction and apparently accept the alien's self-serving declarations in mitigation of his guilt. This is contrary to the weight of authority and administrative practice ( United States ex rel. Mylius v. Uhl, 203 Fed. 152 (S.D.N.Y. 1913), affirmed 210 Fed. 860); United States ex. rel. Zaffarano v. Corsi ( 63 Fed. (2d) 757, 758 (C.C.A. 2d, 1933)); 37 Op. Atty. Gen. 293 (1933); 39 Op. Atty. Gen. 85 (1937). This view is expressed in a learned article by Mr. Jack Wasserman, Member of this Board, in the Monthly Review, Immigration and Naturalization Service, March 1944, pages 4-5.
I further call attention to the fact that the alien was convicted and sentenced November 4, 1939, after he had resided in the United States 16 years; that he was convicted and sentenced the second time on January 13, 1941, after he had resided in the United States 17 years; and that he pled guilty to both crimes. The court dealt leniently with him in sentencing him to imprisonment for 30 days and to pay a fine of $1 for his first offense, but the court properly gave him a more severe sentence for his second offense of imprisonment for 1 year and 1 day and to pay a fine of $100. In both cases the Indians to whom the alien sold the liquor were wards of the Federal Government, were under guardianship on the Yakima Indian Reservation in the State of Washington and subject to the charge of the Superintendent of the Yakima Indian Agency.
Before entering upon a general discussion of the genesis nature and elements of the crime involved, it would be well to take note of the meaning of the term "moral turpitude" as defined by the Attorney General of the United States.
While moral turpitude is a vague term, there is general agreement that it contemplates an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general-anything done contrary to justice, honesty, modesty, or good morals ( United States v. Uhl, 203 Fed. 152, 154; Coykendall v. Skrmetta, 22 F. (2d) 120; United States v. Karnuth, supra; Tillinghast v. Edmead, 31 F. (2d) 81; Hutto v. Atlantic Life Ins. Co., 58 F. (2d) 69; 37 Op. Atty. Gen. 293; In re O'Connell, 184 Cal. 584, 587; Drazen v. New Haven Taxicab Co., 95 Conn. 500, 506; Hughey v. Bradrick, 39 Ohio App. 486). It has been observed that "its meaning depends to some extent upon the public morals," ( United States v. Uhl, supra, p. 154), and that "standards of morals change with the changing conditions of civilization" ( Hutto v. Atlantic Life Ins. Co., supra, p. 71.) The Court of Appeals for the District of Columbia said in Rudolph v. United States ( 6 F. (2d) 487): "Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commission of the offense, if it involves the violation of a rule of public policy and morals, is such an act as may involve moral turpitude" (39 Op. Atty. Gen. 215-227 (Dec. 31, 1938)).
It would also be well at this point to take into consideration what the Court said in the case of People v. Townsend, ( 214 Mich. Rep. 267, decided June 6, 1921), which is cited in the majority opinion.
The Court said:
Voluntary intoxication is an offense not only malum prohibitum but malum in se, condemned as wrong in and of itself by every sense of common decency and good morals from the time that Noah in his drunkenness brought shame to his sons so that they backed in to cover his nakedness, and Lot's daughters employed it for incestuous purposes. Drunkenness was declared wrong in and of itself and punishment provided by the Israelites; by the ancient Chinese in an imperial edict about the year 1120 B.C. called "The announcement about drunkenness"; in ancient India by the ordinances of Manu. In Rome the censors turned drunken members out of the senate and branded them with infamy. In England 300 years ago drunkenness was pilloried as the root and foundation of many sins, such as bloodshed, stabbing, murder, swearing and such like by the statute (4 Jac. 1, chap. 5), and the ecclesiastical judges and officers were granted power to censure and punish offenders, and Bacon in his Abridgement of the common law lists drunkenness as one of the sins of heresy. In Massachusetts Bay Colony in 1633, 1634, one Robte Coles, for drunkenness, was disfranchised and sentenced to wear a red letter D upon a white background for a year. One of the acts passed at the first session of the general assembly of the Northwest Territory and approved December 2, 1799, provided a penalty for being drunk in a public highway. Our statute, 2 Comp. Laws, 1915, No. 7774, declares drunkards to be disorderly persons, and section 15530 makes it an offense for any person to be drunk or intoxicated in any street or highway.
Voluntary drunkenness in a public place was always a misdemeanor at common law; and it was always wrong morally and legally. It is malum in se ( State v. Brown, 38 Kan. 390 ( 16 Pac. 259)). It is gross and culpable negligence for a drunken man to guide and operate an automobile upon a public highway, and one doing so and occasioning injuries to another, causing death, is guilty of manslaughter. It was unlawful for defendant to operate his automobile upon the public highway while he was intoxicated; made unlawful by statute, and wrong in and of itself, and it was criminal carelessness to do so and he is guilty of manslaughter, provided the death of Agnes Thorne was a proximate result of his unlawful act."
The crime of selling liquor to an unemancipated Indian who is a ward of the Government is clearly distinguishable from the ordinary crime of selling liquor contrary to law and, therefore, much, if not all, of the argument and authorities cited in the majority opinion would appear to be irrelevant to the precise point to be decided.
It is important to bear in mind the status of the Indian as a ward and the guardianship exercised by the Federal Government.
Whatever may be the disciplinary authority of the Secretary of the Interior over the conduct of Indian wards outside an Indian reservation, the Indian reservation itself has been considered an area particularly set apart as a domain within which the Federal Government exercises guardianship over the Indians. This guardianship is extended to all the Indians within the reservation regardless of their residence or temporary location on unrestricted land. In the early days after the allotment act, there was a tendency to withdraw protection from citizens and fee-patented Indians. This tendency was later reversed and Federal guardianship over tribal members has been recognized in spite of citizenship, possession of fee patents or residence on unrestricted land. A recent and far-reaching recognition of administrative supervision over all Indians within the boundaries of the reservation is found in the case of United States v. Dewey County ( 14 F. (2d) 784 (D.C.S.D. 1926)); affirmed Dewey County v. United States ( 26 F. (2d) 435 (C.C.A. 8th, 1928)).
Even the conferring of citizenship is not incompatible with the federal powers of guardianship. In United States v. Nice ( 241 U.S. 591, 598), the Supreme Court said: * * * Citizenship is not incompatible with tribal existence or continued guardianship, and so may be conferred without completely emancipating the Indians or placing them beyond the reach of congressional regulations adopted for their protection."
The granting of citizenship did not take citizen Indians out of the working of the liquor laws ( Katzenmeyer v. United States, 225 Fed. 523 (C.C.A. 7); Mosier v. United States, 198 Fed. 54 (C.C.A. 8th, 1912), cer. den., 229 U.S. 619). The privilege of buying liquor is not one of the privileges of citizenship ( Mulligan v. United States, 120 Fed. 98 (C.C.A. 8); Farrell v. United States, 110 Fed. 942 (C.C.A. 8th, 1901)).
The crime of selling liquor to Indian wards of the Federal Government has been considered a very grave offense from the earliest days of the Republic, and it was denounced as a crime in the Colonies from the time they were first settled.
The contention that practically every Indian war since the discovery of America has been caused, directly or indirectly, by the liquor traffic is put forward by William E. Johnson, The Federal Government and the Liquor Traffic (1911), pages 183-238, cited in Indian Liquor Laws by Felix S. Cohen, chapter 17, page 352, note 8.
The view that liquor control aids in maintaining the peace is supported in the Annual Report of Louis C. Mueller, Chief Special Officer of the Office of Indian Affairs, March 28, 1939.
The Indians themselves at various times sought to curb their consumption of strong drink, and it is worthy of note that the first federal control measure (act of March 30, 1802, sec. 21, 2 Stat. 139) was enacted, at least in part, in response to the verbal plea of an Indian chief to President Thomas Jefferson on January 4, 1802. In the course of his talk to the President, the Indian chief, Little Turtle, among other things, said:
* * * But, father, nothing can be done to advantage, unless the great council of the Sixteen Fires, now assembled, will prohibit any person from selling any spirituous liquors among their red brothers.
Father. Your children are not wanting in industry; but it is the introduction of this fatal poison which keeps them poor. Your children have not that command over themselves, which you have, therefore, before anything can be done to advantage, this evil must be remedied.
[Father.] When our white brothers came to this land, our forefathers were numerous and happy; but, since their intercourse with the white people, and owing to the introduction of this fatal poison, we have become less numerous and happy. (American State papers, vol. 7 (Indian Affairs, class II, vol. 1) (1789-1815), p. 655.)
On January 28, 1802, President Jefferson called upon Congress to take some step to control the liquor traffic with the Indians in the following language:
These people (the Indians) are becoming very sensible of the baneful effects produced on their morals, their health, and existence, by the abuse of ardent spirits; and some of them earnestly desire a prohibition of that article from being carried among them. The Legislature will consider whether the effectuating that desire would not be in the spirit of benevolence and liberality, which they have hitherto practiced toward our neighbors, and which has had so happy an effect towards conciliating their friendship. It has been found, too, in experience, that the same abuse gives frequent rise to incidents tending much to commit our peace with the Indians. (American State Papers, vol. 7 (Indian Affairs, class II, vol. 1) (1789-1815), p. 653.)
Congress forthwith adopted legislation which authorized the President of the United States "to take such measures, from time to time, as to him may appear expedient to prevent or restrain the vending or distributing of spirituous liquors among all or any of the said Indian tribes, anything herein contained to the contrary thereof notwithstanding" (act of March 30, 1802, sec. 21, 2 Stat. 139, 146).
With control over treaty-making, the licensing of traders and the management of government trading houses, the Executive had ample power to control the situation without a general Indian prohibition law, and 30 years passed before such a law was enacted (July 9, 1832, c. 174, 4 Stat. 564).
The evolution of Federal legislation dealing with the subject is described by the Supreme Court, per Hughes, J., in the case of United States v. Birdsall ( 233 U.S. 223):
* * * From an early day, Congress has prohibited the liquor traffic among the Indians, and it has been one of the important duties of the Indian Office to aid in the enforcement of this legislation. See act of June 30, 1834, ch. 161, sec. 20, 4 Stat. 729, 732, Rev. Stat. secs. 2139, 2140, 2141; act of July 23, 1892, ch. 234, 27 Stat. 260; act of January 30, 1897, ch. 109, 29 Stat. 506. It has furnished such aid by the detection of violations, by collection of evidence, and by appropriate steps to secure the conviction and punishment of offenders. The regulations of the office, adopted under statutory authority (Rev. Stat. secs. 465, 2058), have been explicit as to the duties of Indian agents in this respect. In recent years, Congress has made special appropriations "to enable the Commissioner of Indian Affairs, under the direction of the Secretary of the Interior, to take action to suppress the traffic of intoxicating liquors among Indians" ( 34 Stat. 328, 1017; 35 Stat. 72, 782; 36 Stat. 271, 1059; 37 Stat. 519), and an organization of special officers and deputies, serving in various states, has been created in the department. Through these efforts numerous convictions have been obtained. The results have been reported to Congress annually by the Commissioner and the appropriations for the continuance of the service have been increased.
In United States v. Twelve Bottles of Whiskey (201 Fed. 191), the Court referred to "the evils visited upon the Indian by intoxicants, and * * * the century-old policy to protect the Indian therefrom.
The Courts have held that it is not a valid defense that the accused did not know that the Indian to whom he sold the liquor was a ward of the Federal Government. "Under the fifth, and last, assignment, the defendant complains that it was not shown that the defendant had knowledge of the fact that Fannie Lastey was a ward of the Government at the time he gave her the whiskey. The statute does not require any such proof and in the absence of such a requirement the objection is frivolous" ( Scheff v. United States, 33 F. (2d) 263).
The Federal Government maintains the status of guardianship towards the unemancipated Indian who is a ward of the Government. Law writers have pointed out how closely related are the subjects of guardianship over insane persons and those incompetent to manage their own affairs and "that guardianship by nature is so closely connected with the topic of parent and child that some overlapping is almost unavoidable," and that the fiduciary relationship is one of benefit and protection for the ward (12 R.C.L. p. 1103).
Selling liquor to an Indian ward of the Government is analogous to selling liquor to a minor. For over a century the act has been considered contrary to good morals and contrary to the accepted and customary rule of right and duty between man and man, and violative of the duty which a man owes to his fellow man (Indian), and to society in general (the Government). The constituent elements of "moral turpitude," as defined by the Attorney General and the courts, are clearly inherent in the crime. This was true long before the statute was enacted into law. The statute was merely the crystallization of the universal rule and custom which had prevailed in the Colonies from the time they were first settled, that intoxicating liquor ("firewater") was under no circumstances to be made available to the aborigines because of the bad effect which it had upon their conduct, and the crimes and depredations which they committed when under its evil influence.
We have traced the statutory law dealing with the crime from the year 1802. The present statute is but the outgrowth and continuation of the laws and customs which prevailed in the Colonies since 1633, as shown by Gallus Thomann in his treatise entitled "Colonial Liquor Laws," 1877. In his analysis of the laws which were enacted in the various colonies, he refers to the "frequent atrocities committed by drunken savages in Massachusetts during the period 1633-77". He quotes the statement made by Peter Stuyvesant, in New York in 1648, when to the fine hitherto imposed upon those who sold liquors to Indians, he added corporal punishment, which, forestalling adverse criticism, he represented as being necessary for the protection of the community. "For," said Stuyvesant, "it is better that such evil-disposed persons be punished than that a whole country and people should suffer." In no colony were the laws against selling liquors to Indians stricter or more severe than in New Jersey. An act of 1679 absolutely forbade the sale of any liquors whatever to Indians, on pain of twenty lashes for the first, thirty lashes for the second, and imprisonment during the Governor's pleasure for the third offense. In New York, under the law in effect in 1645, the fine for selling liquor to the Indians was 500 guilders for the first offense and 1,000 guilders for the second offense. The third offense was punished by imprisonment or banishment; and in addition, the offender was held liable for all damages that arose from his wrongdoing (p. 89).
In A Continent Lost — A Civilization Won — Indian Land Tenure in America, by J.P. Kinney, The Johns Hopkins Press, 1937, this significant statement appears:
A Connecticut act of 1657 had prescribed a heavy penalty for the offense of selling, bartering or giving strong liquor to an Indian and later laws in other colonies sought to protect the Indians. Section 7 of a Maryland act of 1723 indicated clearly that some agreements regarding land sales had been obtained while the Indians were under the influence of liquor.
It is obvious that there has never been a time in the history of our country when the offense of selling liquor to Indians has not been treated as a grave and serious crime and it still is so considered, according to the Annual Report of Louis C. Mueller, Chief Special Officer of the Office of Indian Affairs, March 28, 1939. For over 300 years, we have sought to punish those who have sold liquor to Indians and we still seek to protect Indians who, incompetent to manage their own affairs, we have made the particular objects of our care and solicitude through wardship and guardianship. The crime is not "the minor infraction of law" which, according to the majority, former Prof. Francis B. Sayre classified it to be. Such would indicate on his part a rather superficial knowledge of the crime and a total disregard of its entire legal and historical background.
The American people have for centuries considered the act of selling liquor to Indians to be vile, base and contrary to public policy, and our Government has sought to prevent and stamp out the traffic. Presidents and Congresses and the governors of colonies have considered the subject of sufficient importance to give it their attention. It is one of the criminal offenses in the law which was considered "malum in se" long before it became "malum prohibitum". Can it be doubted that it involves "moral turpitude" within the accepted definition of the Attorney General and the Courts?
An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men or to society in general — anything done contrary to justice, honesty, modesty or good morals (39 Op. Atty. Gen. 215-227, Dec. 31, 1938).
Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commission of the offense, if it involves the violation of a rule of public policy and morals, is such an act as may involve moral turpitude (39 Op. Atty. Gen. 215-227, Dec. 31, 1938).
Apparently, the crime of selling intoxicating liquor to Indians has been considered base, contrary to social duties; and a violation of public policy and morals for hundreds of years. It the crime any less morally turpitudinous than the crimes of petty theft and perjury, which are uniformly held to involve moral turpitude?
The alien appellant has twice pled guilty to the crime of selling liquor to Indians who are wards of our Government and subject to the charge of the superintendent of one of our Indian reservations. He has committed these crimes after having resided in this country for many years, which is all the more reason why he should obey our laws. After committing these crimes, he voluntarily left our country and now desires to reenter. He has no home or family ties in our country. To hold that he has committed no crimes involving moral turpitude will make it possible for this alien to resume trafficking in intoxicating liquor among our Indian wards and yet be guilty of no offense which is a ground for deportation or exclusion. He can be admitted and can remain a resident of this country, and so far as our immigration laws are concerned, continue to carry on that illegal and criminal traffic in defiance of our Government and its officials who are striving to enforce the law and protect our Indian wards against a violation thereof. The term "moral turpitude" in the Act of 1917 would thus become an escape-clause for the benefit of the criminally inclined alien, a result which was never intended by the Congress.
The appellant alien has been found to be inadmissible by a Board of Special Inquiry. For the reasons stated, I believe this decision should be sustained as correct and that the alien should stand excluded.
As a dissent has been recorded, in accordance with section 90.12, title 8, Code of Federal Regulations, the Board certifies the case to the Attorney General for review of its decision.