A-6954760
Decided by Central Office August 17, 1951
Canadian Indians — "American Indians born in Canada" — Act of April 2, 1928 — Effect where person of no more than one-half Indian blood.
(1) The words "American Indians born in Canada" in the Act of April 2, 1928, have an ethnological (by blood) connotation rather than a political one ("Indian, as defined by the Canadian `Indian Act'"). See 1 IN Decs. 309, 600).
(2) A person of no more than one-half Indian blood is not entitled to the benefits of the Act of April 2, 1928.
CHARGE:
Warrant: Act of 1924 — No immigration visa.
BEFORE THE CENTRAL OFFICE
Discussion: The respondent was born in Biggar, Saskatchewan, Canada, about 32 years ago. He last entered the United States in August 1947 at an unknown point on the Canadian border in order to seek employment and remain in this country indefinitely. The issue in this case is whether the respondent is entitled to the benefits of the act of April 2, 1928 ( 45 Stat. 401; 8 U.S.C. 226a), which provides:
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.
If the respondent is entitled to the benefits of this act he is not deportable from the United States. It, therefore, becomes necessary to determine whether the respondent is an American Indian born in Canada within the meaning of the aforesaid act of April 2, 1928. In this connection it has been determined that the words "American Indian born in Canada" as used in that act must be given a racial rather than political connotation, ( U.S. ex rel. Goodwin v. Karuth, 74 F. Supp. 660 (D.C., W.D., N.Y., 1947)).
In determining whether the race of this respondent is that of an American Indian, reference to certain evidence is necessary. Evidence of record discloses that the father of the respondent was a member of the white race. It appears that the mother of the respondent was a full-blooded Indian, and for the purpose of this discussion it will be conceded that she was a full-blooded Indian. The respondent's parents were married in an Indian ceremony according to Indian custom. Respondent's father left his wife when respondent was an infant and has not maintained either of them since that time. The respondent never lived on an Indian reservation and received no treaty money from the Canadian Government. His mother and he were never members of any tribe of Indians. Respondent, while in Canada, lived in settlements of nontreaty Indians.
There is no evidence to indicate, nor do we have any reason to believe, that this ceremony does not create a valid marriage. If it did not create a valid marriage the respondent may be an illegitimate child. However, where the racial test is the applicable one the status of legitimacy is immaterial (except for purposes of citizenship). It has been asserted that the respondent's mother was born in the United States but no evidence to corroborate that fact has been submitted.
The respondent is a person who possesses no more than one-half Indian blood.
The hearing officer who heard testimony in this case referred in his opinion to the case of H---- J----, A-6846624, and after discussing the evidence in the instant case concluded that the instant case came within what he believed was an exception to the general rule stated in the said case of H---- J----. In that case the Central Office stated, after citing the holding in the Goodwin case ( supra), that:
The status of Canadian Indians of mixed blood has not been determined either administratively or judicially in the light of Goodwin v. Karnuth ( supra). However, at various times the courts have determined the status of an American Indian of mixed blood under various statutes. [ This italic supplied.] The United States Supreme Court in Halbert v. United States, 283 U.S. 753 (June 1, 1931), at page 763 said "The children of a marriage between an Indian woman and a white man usually take the status of the father; but if the wife retains her tribal membership and the children are born in the tribal environment and reared there by her, with the husband failing to discharge his duties to them, they take the status of the mother." This case is relied upon by Corpus Juris Secundum as authority for the following statement which appears in 42 C.J.S., page 647, under the subject of "Who are Indians;" "The status of half-breeds as for example the offspring of a white father and an Indian mother usually has been held to be that of the father, except if the mother has retained her tribal membership and the child was born in the tribal environment and there reared by her, the father failing to discharge his duties to them, they take the status of the mother." In 31 C.J., page 480, under the subject of "Who are Indians," it is said "As to the question of the status of half-breeds, which usually arises in the case of the offspring of a white father and an Indian mother, it has usually been held, adopting the common-law rule that the child follows the condition of the father" (citing Smith v. Bonifer, 154 Fed. 883 affirmed 166 Fed. 846; U.S. v. Higgins, 110 Fed. 609; United States v. Hadley, 99 Fed. 437; Keith v. United States, 8 Okla. 446; 58 P. 507; State v. Nicolls, 61 Wash. 142; 112 P. 269). Corpus Juris continues: "The child of a white citizen and an Indian mother, who is abandoned by his father, is nurtured and reared by the Indian mother in the tribal environment, and is recognized by the tribe as a member of it, falls under an exception to the general rule that the offspring follows the status of the father and becomes a member of the tribe of the mother." In United States v. Ward, 42 Fed. 320 it was held that the son of a Negro father and an Indian mother is not an Indian within the meaning of the federal statute providing for the punishment of the Indian committing certain offenses, as the child follows the condition of the father.
In construing racial limitation provisions in the Naturalization Laws, the courts have uniformly held that a person, one of whose parents is white and the other of a race ineligible for naturalization is not eligible for naturalization. ( In re Knight, 171 Fed. 299; In re Rallos, 241 Fed. 686; In re Lampitoe, 232 Fed. 382; In re Camille, 6 Fed. 256; In re Young, 195 Fed. 645 affirmed on rehearing 198 Fed. 715.) In the case of Camille ( supra) the father was white and the mother a Canadian Indian.
On the basis of the foregoing authorities it is concluded that the respondent is not to be regarded as a Canadian Indian within the meaning of the act of April 2, 1928.
The foregoing quotation may, on superficial reading, indicate that where the child of a white father and an Indian mother is abandoned by the father, is nurtured and reared by the Indian mother in the tribal environment, the child becomes a member of the tribe of the mother. It is noted, however, that the language in the quotation as well as other language dealing with children of one-half blood related to the interpretation of status of an American Indian "under various statutes." The court in the Goodwin case pointed to various statutes which specifically provided in the definition of the term "Indians" that it include persons of the half-blood. None of these statutes is the one dealt with in the instant case. This latter statute was the one discussed in the Goodwin case and it was there determined that the racial test should apply. Therefore, the earlier language in the quotation from the J---- case set forth above was merely to show various definitions of Indians. The conclusion in the Goodwin case was that the subject was not to be regarded as a Canadian Indian within the meaning of the act of April 2, 1928. Political considerations and determinations regarding Indian status were rejected by the court in the Goodwin case.
In view of the foregoing it is apparent that the respondent being no more than one-half Indian blood is not entitled to the benefits of the act of April 2, 1928. He is, therefore, deportable on the charge contained in the warrant of arrest. It does not appear that he is other than a person of good moral character and, consequently, voluntary departure should be authorized.
Order: It is ordered that an order of deportation be not entered at this time but that the alien be required to depart from the United States without expense to the Government within such period of time and under such conditions as the officer in charge of the district-deems appropriate.