In the Matter of S---

In the Matter of S--- et al.

In Exclusion Proceedings

No. 56107/290

INTERIM DECISION: No Interim Decision In Original

DEPARTMENT OF JUSTICE,

BOARD OF IMMIGRATION APPEALS

1 I. & N. Dec. 309

October 1, 1942, Decided by the Board

Canadian Indians -- Definition -- Act of April 2, 1928.

EXCLUDED BY BOARD OF SPECIAL INQUIRY:

Act of 1924 -- Immigrants without immigration visas.

Alien Registration Act of 1940 -- No permits to enter.

Executive Order 8766 -- No passports.

OPINION:

Mr. Joseph Minton, for the Immigration and Naturalization Service.

Mr. Richard P. Lott, Board attorney-examiner.

STATEMENT OF THE CASE: *309 The appellant, P--- R--- S--- (56107/290) appeared before a board of special inquiry held in Montreal, Canada, for admission for indefinite residence. The appellant, I--- D--- (56128/331) applied at the port of Oroville, Wash., for admission for indefinite residence. The appellant, E--- L--- (56107/553) applied at the port of Van Buren, Me., for admission for indefinite residence. Each appellant claimed the right of entry without documents as an Indian. Each is of white blood but makes claim to Indian status under the provisions of the Canadian Indian Act and therefore the right to pass under the Act of April 2, 1928 FN1 (8 U.S.C.A., sec. 226 (a) and General Order 109 of July 18, 1928, and Instruction No. 9 of January 23, 1942). The respective boards of special inquiry denied their claims to Indian status and excluded them on the grounds above stated by reason of their lack of passports and visas. Each appeals.

FN1 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.

DISCUSSION: *310 The question in each case is identical: Is a white woman married to an Indian to be considered an Indian under the provisions of the Canadian Indian Act and especially section 2 (d) thereof which defines "Indian" as follows:

(i) Any male person of Indian blood reputed to belong to a particular band.

(ii) Any child of such person.

(iii) Any woman who is or was lawfully married to such person (ch. 98, Rev. Stat. of Canada, 1927).

The administrative interpretation of this question has not been uniform. Under date of August 8, 1928, a Central Office letter carried in file No. 55466/182-B advised the field that General Order 109 applied to all immigration laws and "you are advised that the question as to whether an alien is properly within the terms of General Order 109 should be determined, not by the degree of any particular blood, but by determining if the alien is actually recognized as a Canadian-born American Indian." It will be observed that the foregoing suggests a political rather than an ethnological interpretation.

Some months later, on March 26, 1929, the Board of Review in an opinion advised that Indians born in the United States who had naturalized in Canada come within the act of 1928 and General Order 109 because the term "Indian" is ethnological rather than political. The reasoning of this opinion was prompted by solicitude for Indians born in the United States. It is doubtful, however, whether this opinion is of ruling force in view of the Solicitor's opinion of November 16, 1933, which holds that an enfranchised Canadian Indian is not entitled to the benefits of the act of 1928, an opinion that has been consistently followed by the Board of Review (and the Board of Immigration Appeals). See for example In re B--- (56068/34).

Under date of April 12, 1932, the Board of Review held that a child born of a white mother who was the wife of a half-breed Canadian Indian was inadmissible as an immigrant. The Indian status of the child was not taken into consideration, but the facts of the case indicated that the father was not an enrolled Indian. The decision, therefore, is neither an ethnological nor a political interpretation, although, if either, it is a political interpretation. (See R--- K--- (55808/379).)

The Solicitor's opinion of November 16, 1933, points out that the right of American Indians born in Canada to pass the borders of the United States means the rights secured to the Indians by article III of the Jay Treaty of 1794 between the United States and Great Britain, which rights either survived the War of 1812 ( McCandless v. United States ex rel. Diabo, 25 F. 2d 71) or, if they did not survive the War of 1812 ( Karnuth v. United States, 279 U.S. 231) were restored to "the tribes or nations of Indians" by article IX of the Treaty of *311 Ghent of July 1, 1814. The Solicitor points out that enfranchisement results in the acquisition of Canadian citizenship and the relinquishment of Indian status. The act of 1928 contemplated that its application should be limited to Indians who remained identified with the tribe or nation and was not designed to confer upon Indians rights additional to those gained under the Jay Treaty and the Treaty of Ghent.

The Board of Review next considered the Indian question In re L--- La F--- (55939/967, March 3, 1937) in which it was decided that the appellant born on a reservation of a half-breed tribal member father and his white wife was admissible as an Indian despite her preponderance of white blood because she was regarded as an Indian in Canada.

Our most recent decision is that of L--- M--- and son Guy (56088/685, November 21, 1941). We held in that case that the white wife of a half-breed Canadian Indian who has been accorded full tribal status is admissible under the act of 1928. The child being of one-quarter Indian blood and a tribal member was likewise admitted.

The Adjudications Branch on February 4, 1942, ruled In re L--- C--- (77/7190) that the white wife of a Canadian Indian who had tribal status and who had been admitted as an Indian without any record of her admission was not lawfully admitted for permanent residence and therefore ineligible for naturalization. The opinion in that case seems to conclude that the subject acquired tribal status by adoption, marriage being included within the scope of term as found in the act of 1928. The Adjudications Branch in the instant cases (except in the L--- case) has made a ruling advising the Warrant and Deportation Branch that the term "Indian" as used in the Act of April 2, 1928, is used in an ethnological and not a political sense and that therefore only persons of American Indian blood may be considered beneficiaries of the act. This opinion of the Adjudications Branch states that marriage does not constitute adoption within the meaning of the act of 1928. We infer that to that extent the Adjudications Branch no longer considers the C--- case authority for the proposition that marriage is adoption within the act of 1928. We readily agree that marriage and adoption are entirely different.

It will be noted that the Jay Treaty and the Treaty of Ghent above referred to lay emphasis upon the terms "tribes or nations of Indians" and that the best-considered decisions in the foregoing series of administrative interpretations emphasize the tribal nature of the question and, in our opinion, correctly so. Thus from the historical point of view it is tribal affiliation that determines Indian status except, of *312 course, that the affiliation shall not be by adoption. In our opinion, the exception found in the act of 1928 that the right of free passage "shall not extend to persons whose membership in Indian tribes or families is created by adoption" is subject to application of the maxim expressio unius est exclusio alterius or modified to suit this case exclusio unius est expressio alterius. It is a recognition that tribal status may be acquired by marriage, which is harmonious with the historical emphasis upon tribal affiliation.

Is there violence to legal precept in using the definition found in the Canadian Indian Act, that is, foreign legislation, as the guide to statutory construction? In this case we believe not. Here we are dealing with Canadian American Indians in an effort to preserve to them their ancient tribal rights. The Canadian Indian Act is a comprehensive definition of tribal governance. We note its comprehensiveness and assume that it is acceptable to the Indians as a recognition of their tribal customs and way of life. Apparently its only change from traditionally Indian life is its assimilation of tribal life to a patriarchal basis. The opinion of the Adjudications Branch in the cases herein adequately discusses the historical background of the act of 1928 but reaches the conclusion that Indians by blood were the only ones intended to benefit. In our opinion this conclusion is unjustified. It is our conclusion that tribal membership under the adequate guide of the Canadian Indian Act controls. The Adjudications Branch point out that the Canadian Indian Act omits Indian women from its definitions and that strict adherence to the Canadian law would result in the exclusion of a Canadian woman if she were not a tribal member. It is said that this conclusion would be absurd and ridiculous and inconsistent with the legislative intent. We fail to see, however, any inconsistency especially in view of the unquestioned conclusion that an enfranchised Indian is not entitled to the benefits of the act of 1928. Likewise if an Indian woman loses her tribal membership we see no harm in holding that she has lost the tribal right of free passage. It is also argued that undesirable persons not of Indian blood could circumvent the immigration laws by marriage to an Indian and acquisition of tribal status. It is a partial answer to this argument to say that if a bad nonblood Indian may acquire entry, so also may a bad Indian. But the best answer is that we may rely upon the careful administration by the Canadian authorities of their Indian laws to prevent the foisting upon this country of unworthy aliens as nonblood Indian wives. (See for example sec. 13 of the Canadian Indian Act.) We should also point out that tribal life would suffer violence if the Indian husband and his children are permitted free passage, but the nonblood wife must be excluded although in all other respects the nonblood wife is fully assimilated into the *313 tribe and, in fact, has lost thereby certain privileges of Canadian citizenship by her marriage to an Indian.

FINDINGS OF FACT: Upon the basis of all the evidence adduced at the hearing, it is found:

(1) That the appellants are aliens, natives of Canada;

(2) That the appellants seek admission for indefinite residence without immigration documents;

(3) That the appellants are white wives of American Indians born in Canada;

(4) That the appellants are members of Indian bands.

CONCLUSIONS OF LAW: Upon the basis of the foregoing findings of fact, it is concluded:

(1) That under the Act of April 2, 1928, General Order 109 of July 18, 1928, and Instruction No. 9 of January 23, 1941, the appellants as American Indians born in Canada are exempt from the provisions of the Immigration Act of 1924 and the Alien Registration Act of 1940;

(2) That under Executive Order 8766 of June 3, 1941, the appellants are not inadmissible as not in possession of passports;

(3) That under section 13 of the act of 1924 the appellants are not inadmissible as immigrants not in possession of immigration visas;

(4) That under section 30 of the act of 1940 the appellants are not inadmissible as not in possession of visas, reentry permits, or border-crossing cards.

ORDER: It is ordered that the appeals be sustained and the appellants admitted as American Indians born in Canada under the provisions of the Act of April 2, 1928.