A-6869289 (Mother).A-6869290 (Daughter)
Decided by Board September 1, 1949
Status — National (but not citizen) of United States — Acquisition in outlying possessions following transfer of territory to the United States — "Blood" requirement as prerequisite to such acquisition (American Somoa, Guam — See 3 IN Dec. 589).
1. Transfer of territory by one nation to another transfers the "nationality" of the inhabitants thereof, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided by the terms of the instrument of cession.
2. When Germany and Great Britain ceded American Samoa to the United States by the Treaty of December 2, 1899, there was no provision in that treaty permitting former nationals of those countries to retain their former nationality.
3. No treaty, statute, or authoritative decision authorizes imposition of a requirement that to become a United States national through territorial acquisition one must be of a certain blood. The only requirement is that the ancestor through whom appellant claims United States nationality did, in fact, before the time of cession owe allegiance to the sovereign from whom the United States acquired the territory.
4. The blood standard prescribed by section 303 of the Nationality Act of 1940 (as amended) is a test of eligibility for United States citizenship, not eligibility for United States nationality.
5. Adult appellant's German grandfather living in Samoa at time of cession, lost his German nationality and acquired United States nationality at time of cession.
6. Adult appellant's father, the adult appellant herself, and her infant, the child appellant (putative father not involved), acquired United States nationality (but not citizenship) through the adult appellant's paternal grandfather.
EXCLUDED BY BOARD OF SPECIAL INQUIRY:
Act of 1924 — No immigration visa.
Executive Order 8766 — No passport.
BEFORE THE BOARD
Discussion: Appellants, a 20-year-old female and her daughter, aged 22 months, applied for admission into the United States at the port of Honolulu, T.H., on October 15, 1947, and were excluded by a Board of Special Inquiry on February 19, 1948, on the above indicated grounds, and they appealed. Pending decision on appeal, the applicants were paroled.
The question presented is whether or not appellants may be considered nationals of the United States. The conclusion of the Board of Special Inquiry and that of the Central Office was that these person are not United States nationals.
The adult appellant presented a birth certificate, showing birth July 12, 1927 at Apia, Upolu, American Samoa, of a half-caste father, A---- C----, age 32, birthplace Savai, Upolu, American Samoa, and her mother, B---- C----, half caste, age 26, birthplace Apia, Upola, American Samoa. Her name is shown as A---- C----, on the birth certificate. She also presented a birth certificate, showing the birth of the child, C----, on August 29, 1946, at Fagealu, Tutuila, American Samoa, mother M---- C----, half-caste, age 19 years. The certificate shows no name for the father and indicates that the child is not legitimate.
The adult appellant also presented an affidavit executed by her in which she stated that she is the mother of the child appellant, C----.
The adult appellant testified that her father's full name is A---- C----, born in British Samoa, and about 52 years of age. She stated that her mother's full name is B---- C----, maiden name S----, born in British Samoa, and that she is 44 years of age. She testified that her father was taken to American Samoa when he was 5 months of age. She further testified that her grandfather's name was C----, that he was German, and that her paternal grandmother was an American Samoan.
There were submitted in evidence two affidavits by persons who stated that they were the uncles of A---- C---- and that they knew of their own knowledge that the said A---- C---- is a person of one-half Samoan blood and that the said A---- C---- came to the island of Tutuila, American Samoa, before the year 1900, and that the said A---- C---- had been ever since resident in the island of Tutuila, American Samoa, and that the aforesaid A---- C---- is the same person who is the father of the adult appellant, A---- C----, now known as Mrs. A---- B----. There was also presented a letter of identity from the office of the Governor of American Samoa indicating that Mrs. A---- B---- and baby are both nationals of the United States and are destined to Honolulu, T.H.
The conclusion that appellant is not a United States national was based on an opinion of the General Counsel of April 6, 1948, which stated that certain persons are to be considered nationals of the United States, including:
(4) A person born prior to January 13, 1941, in wedlock in American Samoa or in Swain's Island, who has resided there continuously since birth, and whose father was indigenous there.
The adult appellant in this case was born in wedlock in American Samoa, but the conclusion was that her father was not indigenous there, because he was half Samoan and half German. The opinion concluded that the parent must be of more than one-half Samoan blood to be considered indigenous to American Samoa, that appellant's father is not a national, and therefore appellant and her child did not inherit United States nationality.
It is our opinion that appellant and her child are nationals of the United States for the reason that her German grandfather became an American national at the time the United States acquired American Samoa from Germany. Germany made no provision for the retention of German nationality by her nationals in that territory.
All relations with the inhabitants of Samoa are governed by the treaty of December 2, 1899 between Germany, Great Britain, and the United States, which treaty provides as follows:
Germany renounces in favor of the United States of America all her rights and claims over and in respect to the islands of Tutuila and all other islands of the Samoan group east of longitude 171° west of Greenwich.
Great Britain in like manner renounces in favor of the United States of America all her rights, and claims over and in respect to the island of Tutuila and all other islands of the Samoan group east of longitude 171° west of Greenwich ( 31 Stat. 1878; Treaty Series, No. 314; Malloy, Treaties, II, 1595).
There is no rule of international law more firmly established than the principle that "on a transfer of territory by one nation to another the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided" ( Boyd v. Thayer, 143 U.S. 135 (citing cases)). 38 Op. Att. Gen. (1934-37) 525, 530, states:
It is authoritatively stated to be a universally recognized customary rule of the law of nations that the inhabitants of subjugated as well as ceded territory lose their nationality and acquire that (but not necessarily full citizenship) of the state which annexes the territory, subject only to any option expressly given concerning retention of former nationality.
As stated by Chief Justice Marshall, in the decision of the Supreme Court in the case of American Insurance Company v. Canter, 1, Peters, 511, 542, "The same act which transfers their country transfers the allegiance of those who remain in it." The same principle is set forth in Boyd v. Nebraska, 143 U.S. 135, 36 L. Ed. 103 (1892), 12 Sup. Ct. R. 375, Gonzales v. Williams, 192 U.S. 1, 47 L. Ed. 317 (1903), Moore, International Law Digest, Vol. III, p. 311 and Hackworth, Digest of International Law, Vol. III, p. 155.
There is no provision in the treaty ceding American Samoa to us permitting the former nationals of Germany or Great Britain to retain their allegiance to those countries.
There is ample precedent for such provisions. They are present in most treaties of cession. There was such a provision in the treaty between the United States and Denmark by which the United States acquired the Virgin Islands:
"Danish citizens residing in said islands may remain therein or may remove therefrom at will, * * *. Those who remain in the islands may preserve their citizenship in Denmark by making before a court of record within 1 year from the date of the exchange of ratifications of this convention, a declaration of their decision to preserve such citizenship; * * *. The civil rights and the political status of the inhabitants of the islands shall be determined by the Congress, subject to the stipulations contained in the present convention" (39 Stat. (pt. 2) 1706; Treaty Series No. 629; Treaties, etc. III 2558).
There was such a provision in the treaty between the United States and Spain by which the United States acquired the Philippine Islands and Guam:
"Spanish subjects, natives of the peninsula, residing in the territory over which Spain by the present treaty relinquishes or cedes her sovereignty, may remain in such territory, or may remove therefrom * * *. In case they remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty (Apr. 11, 1899), a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside.
"The civil rights and political status of the native inhabitants of the territories hereby ceded to the United States shall be determined by the Congress" ( 30 Stat. 1754; Treaty Series, No. 343; Malloy, Treaties, II, 1690).
Clearly, it is only those who formerly owed allegiance to the ceding country whose nationality changes at the time of cession.
Since there was no such agreement it seems imperative to find that appellant's German grandfather, and also appellant's half — German father, both of whom were living in American Samoa at the time of cession, lost their German nationality.
The question narrows, then, to the issue of the blood test used by the Central Office in this case and other cases concerning the United States nationality of Samoans (and Guamanians). Did the fact that the father was half — German operate to prevent him from acquiring United States nationality at the time he lost his German nationality?
The Central Office opinion concluded that it did, that not being of more than half-white or more than half — Samoan blood, he did not acquire American nationality. This opinion was based on an Acting Commissioner's memorandum, issued on October 28, 1948, which said, "* * * it is only reasonable to apply in such a case the blood standard prescribed by section 303 of the Nationality Act of 1940 as amended by the act of July 2, 1946, 60 Stat. 416, which required that an alien to be eligible for naturalization, with certain exceptions not material here, shall be at least of more than half of blood eligible for naturalization."
The status of the adult respondent became fixed long before this act was passed, of course. Racial eligibility for naturalization was determined before 1940 by R.S. 2169, similar to section 303, except that section 303 provides for naturalization for "descendents of races indigenous to the Western Hemisphere," which R.S. 2169 did not.
It is our opinion that the racial test provided in section 303 of the Nationality Act is not such a bar for three reasons: (1) The racial test provided in the Nationality Act, section 303, is a test set up to determine eligibility for citizenship. The test does not extend to determination of eligibility for nationality.
(2) The treaty between the United States, Germany, and Great Britain did not restrict the transfer of the allegiance of the inhabitants in any way. Indeed, it did not speak of the inhabitants at all. As we have seen above, it is clear law that the transfer of territory transfers the allegiance of those nationals of the ceding powers who continue to reside therein. When Congress by treaty accepts a cession of territory it accepts also the allegiance of the inhabitants in accordance with the terms of that treaty. They become "nationals" of the United States, a word which in our terminology has replaced the word subject," as it was used in the English law.
In 1937 the State Department decided in a case almost identical with the instant (B----) case that the part — Samoan there involved was a United States national. The only point of difference was that the grandfather was a citizen of the United States (rather than of Germany as in the B---- case). The decision was that the applicant was not a citizen of the United States, because his father had not resided in the United States prior to his birth, but that he was a national. The blood question did not arise. (see Hackworth, Vol. III, p. 156).
The State Department and the Immigration Service adopted the "indigenous requirement" quite recently, declaring that persons whose parents were "indigenous" to American Samoa acquired United States nationality. The question arose as to the meaning of "indigenous." It was to answer this question that the racial requirement was established, borrowed from the Nationality Act and grafted onto this controversy.
(3) The racial test is applicable to "judicial naturalization" but not to "Congressional naturalization." It seems to us that there is an analogy between acquisition of citizenship by annexation of terri tory (Congressional naturalization) and the acquisition of nationality by annexation of territory. Hawaii and Alaska provide outstanding examples of the former. There is no racial restriction in acquisition of citizenship through territorial annexation. Hackworth, discussing a case which came up from Hawaii involving derivative citizenship of a Chinese person says (vol. III, p. 121), quoting an opinion of the legal adviser to the Department of State, January 28, 1931:
The principal difficulty in holding that C---- Y---- was naturalized through the naturalization of his father would seem to lie in the fact that he is not a "white person" within the meaning of section 2169 of the Revised Statutes, which fact would bar him from obtaining naturalization in the ordinary way, through application to a court. However, it has been uniformly held that the racial provision in question had no application to collective naturalization through annexation of territory, and it seems equally reasonable to hold that it has no application to the derivative naturalization of the children of persons collectively naturalized * * * this seems to be the view of the Solicitor for the Department of Labor.
An opinion of the Solicitor for the Department of Labor, at that time C---- W---- (now district judge, Massachusetts), in file 55215/756 (Central Office), January 18, 1935, discussed the subject of "judicial naturalization" and "Congressional naturalization," pointing out that the race restriction applies in the former type but not in the latter type of naturalization. In the latter type, citizenship is bestowed by Congress without regard to blood. The Solicitor pointed out also that derivative citizenship is not restricted by the racial qualification. This view confirmed an earlier opinion by the Solicitor of Labor to the same effect.
In re Opinions of Justices, 68 Me. 589, 591 in which it was said:
"The inhabitants of territory ceded from one government to another are collectively naturalized, and have all the rights of natural born subjects by mere force of the cession of the soil without the necessity of anything being expressed to that effect."
See also 22 Op. Atty. Gen. 345, particularly 350, 351:
"With respect to the intention of Congress in the present case, I cannot conceive that there is any doubt. The language of the Hawaiian act (sec. 4) is that ` all persons who are citizens of the Republic of Hawaii on August 12, 1898, are hereby declared to be citizens of the United States and citizens of the Territory of Hawaii.' This language is positive and unqualified and leaves nothing to construe.
"* * *, considerations drawn from the general Chinese exclusion policy of the United States, leading to the prepossession that this grant of privilege is difficult to conceive or impossible to suppose, may not justly be invoked to support a persuasion that Congress did not intend `to admit to the full rights of citizenship a class of Chinese persons in a distant land who if they had been domiciled in our midst could under no circumstances ever have become citizens of the United States.' Nevertheless this is precisely what Congress did. * * *"
"The status of a national is less than the status of a citizen. Since there is no racial restriction with regard to acquisition of citizenship by territorial annexation or by derivation, there seems to be no logic in imposing a racial restriction on acquisition of nationality by territorial annexation. Such a requirement necessitates an otherwise unnecessary inquiry into the racial background of appellant's parents and grandparents, with all the attendant complications of such an inquiry. Appellant in order to acquire United States nationality, must show, not that she has a preponderance of Samoan blood, and hence is `indigenous', but that her ancestor (father or grandfather through whom she claims nationality) had a preponderance of Samoan blood (and was living in the island territory at time of acquisition), and hence was an `indigenous inhabitant.'"
Why has the "indigenous" requirement been established only in respect to inhabitants of American Samoa, Swain's Island, and Guam? In no other territory of the United States have we ever imposed a racial requirement in connection with collective naturalization or acquisition of nationality at birth. It is true that in the case of Alaska, our treaty with Russia ( 15 Stat. 542) excepted the so-called uncivilized tribes from the privilege of admission to citizenship. But even as to these uncivilized tribes, the Immigration Service ruled that they acquired noncitizen nationality of the United States (Malloy, Treaties, vol. 2, p. 1521).
There is no treaty, statute, or authoritative decision known to us which authorizes the imposition of the "indigenous" requirement. It creates a class of stateless persons among those who, in fact, owe allegiance to the United States and to no foreign country, although such persons were born in United States territory or have lived in such territory since its acquisition by the United States. It has the effect of denying recognition to natives or inhabitants of United States territory for the sole reason that one or more ancestors were members of the white race, preventing the descendant from being considered "indigenous" even though he, himself may be more than half Samoan.
It is our opinion that a person living in Samoa on the date of annexation who, prior to that date had owed allegiance to one of the seceding powers, England or Germany, acquired United States nationality at the date of cession, and that no artificial racial requirement should be imposed at this late date to deny that nationality to them or to those who have derived that nationality through them.
We hold that both appellants in the instant case possess United States nationality and are entitled to admission to Hawaii as United States nationals.
Order: It is ordered that the appeal be and the same is hereby sustained, appellants to be admitted to the United States for permanent residence.