1. The Alien Land Law of California forbids that an alien who is
neither a citizen nor eligible for naturalization shall occupy land
for agricultural purposes unless permitted by treaty, makes
conspiracy of two or more persons to violate the prohibition a
crime, and further provides that, where the state proves occupation
or use of such land by any defendant, and the indictment alleges
his alienage and ineligibility, the onus of proving his citizenship
or eligibility shall devolve upon the defense.
(1) Where two persons, charged with such a conspiracy, were
convicted upon proof merely that one of them, alleged to be an
alien Japanese, ineligible to citizenship, had gone upon
agricultural land and used it under an agreement with the other,
whose citizenship was not involved,
held that the
conviction, as to both, was without due process of law:
(a) In the case of the lessor, the statutory presumption of the
lessee's disqualification and of the lessor's knowledge of it,
based only on the lease and possession, is purely arbitrary. Pp.
291 U. S.
90-92.
(b) In the case of the lessee, the shifting of the burden of
proof is likewise unjustifiable, first because a lease of
agricultural land conveys no hint of criminality, and secondly
because there is in general no practical necessity for relieving
the prosecution of the necessity of proving Japanese race -- the
appearance of the defendant and expert testimony will suffice, and
because, in the exceptional case, where the appearance of Japanese
blood is obscured by admixtures of white or African blood, the
promotion of convenience from the point of view of the prosecution
will be outweighed by the probability of injustice to the accused:
one whose racial origins are so blended as not to be discoverable
at sight will often be unaware of them. Pp.
291 U. S.
93-96.
(2)
Morrison v. California, 288 U.S. 591, distinguished
-- a case involving a different section of the statute and in which
the burden
Page 291 U. S. 83
of proving citizenship by birth lay upon the alien after the
state had proved him to be of a race ineligible for naturalization.
P.
291 U. S.
87.
2. The burden of proof may be shifted in criminal cases where
the state has proved enough to make it just for the defendant to be
required to repel what has been proved with excuse or explanation,
or where, upon a balancing of convenience or of the opportunities
for knowledge, the shifting of the burden will be found to be an
aid to the accuser without subjecting the accused to hardship or
oppression. P.
291 U. S.
88.
3. Where a charge of conspiracy is limited to two persons, the
guilty knowledge must have been shared by both to warrant
conviction of either. P.
291 U. S.
93.
218 Cal. 287, 22 P.2d 718, reversed.
Appeal from a judgment sustaining a conviction of conspiracy.
The case went to the court below from the California District Court
of Appeal. 13 P.2d 803.
MR. JUSTICE CARDOZO delivered the opinion of the Court.
The appellants have been convicted of a conspiracy to violate
the Alien Land Law of the State of California.
The indictment charges that the two appellants, Morrison and
Doi, feloniously conspired to place Doi in the possession and
enjoyment of agricultural land within the state; that possession
was obtained, and the land used and cultivated, in execution of the
conspiracy, and that Doi was an alien Japanese, ineligible to
citizenship, and not protected in his possession by any treaty
between the government of the United States and the government of
Japan. These acts, if committed with guilty knowledge of each
defendant, make out a criminal conspiracy under the statutes of the
state.
Page 291 U. S. 84
On the trial, the state proved that Doi had gone upon the land
and used it under an agreement with Morrison, but did not attempt
to prove that he was not a citizen of the United States or that he
was ineligible for citizenship. The statutes of California provide
that, as to these elements of the crime, the burden of disproving
guilt shall rest on a defendant. By § 9a of the Alien Land Law, as
amended in 1927 (California Statutes, 1927, pp. 880-881, c. 528, §
1), it is enacted that,
"in any action or proceeding, civil or criminal, by the State of
California, or the people thereof, under any of the provisions of
this act, when the proof introduced by the state, or the people
thereof, establishes the acquisition, possession, enjoyment, use,
cultivation, occupation, or transferring of real property or any
interest therein, or the having in whole or in part the beneficial
use thereof by any defendant, or any of such fact(s), and the
complaint, indictment or information alleges the alienage and
ineligibility to United States citizenship of such defendant, the
burden of proving citizenship or eligibility to citizenship shall
thereupon devolve upon such defendant."
At the same session of the legislature, the Code of Civil
Procedure of the state was amended by the addition of a new section
(1983) which, in substance and effect, restates the same rule.
California Statutes, 1927, p. 434, c. 244. Applying these statutes
to this case, the trial judge held (a jury having been waived) that
both the defendants, Morrison as well as Doi, were guilty of
conspiracy. They were sentenced to be imprisoned for two years, but
the sentences were suspended and the defendants placed upon
probation. There was an appeal to the District Court of Appeal for
the Fourth District, where the judgment was affirmed. The court
overruled the defendants' contention that, by the application of §
9a of the Alien Land Law and § 1983 of the Code of Civil Procedure,
there had been a denial of due process
Page 291 U. S. 85
of law under the Fourteenth Amendment of the Constitution of the
United States. 13 P.2d 803. The cause was then transferred to the
Supreme Court of California. There defendants' contention under the
Fourteenth Amendment was again overruled, and the conviction was
affirmed, three judges dissenting. 22 P.2d 718. An appeal to this
Court followed.
A person of the Japanese race is a citizen of the United States
if he was born within the United States.
United States v. Wong
Kim Ark, 169 U. S. 649. He
is a citizen, even though born abroad, if his father was a citizen,
provided, however, that this privilege shall not exist unless the
father was at some time a resident of the United States as well as
a citizen, and provided also that such a child, who continues to
reside abroad, shall, in order to receive the protection of this
government, be required upon reaching the age of eighteen years to
record at an American consulate his intention to become a resident
and remain a citizen of the United States, and shall be further
required to take the oath of allegiance to the United States upon
attaining his majority. R.S. § 1993; 8 U.S.C. § 6;
Weedin v.
Chin Bow, 274 U. S. 657;
see also R.S. § 2172; 8 U.S.C. § 7. But a person of the
Japanese race, if not born a citizen, is ineligible to become a
citizen --
i.e., to be naturalized. The privilege of
naturalization is confined to aliens who are "free white persons,
and to aliens of African nativity and to persons of African
descent." R.S. § 2169; 8 U.S.C. § 359. "White persons," within the
meaning of the statute, are members of the Causcasian race, as
Caucasian is defined in the understanding of the mass of men.
Ozawa v. United States, 260 U. S. 178;
Yamashita v. Hinkle, 260 U. S. 199;
United States v. Thind, 261 U. S. 204,
261 U. S. 214;
Terrace v. Thompson, 263 U. S. 197;
Porterfield v. Webb, 263 U. S. 225;
Webb v. O'Brien, 263 U. S. 313;
Cockrill v. California, 268 U. S. 258. The
term
Page 291 U. S. 86
excludes the Chinese (
United States v. Wong Kim Ark,
supra; 8 U.S.C. § 363), the Japanese (cases
supra),
the Hindus (
United States v. Thind, supra), the American
Indians (
Ozawa v. United States, supra), and the Filipinos
(
Toyota v. United States, 268 U.
S. 402), though Indians and Filipinos who have done
military or naval service may be entitled to special privileges (8
U.S.C. §§ 3, 388). Nor is the range of the exclusion limited to
persons of the full blood. The privilege of naturalization is
denied to all who are not white (unless the applicants are of
African nativity or African descent), and men are not white if the
strain of colored blood in them is a half or a quarter, or, not
improbably, even less, the governing test always (
United States
v. Thind, supra) being that of common understanding.
Dean
v. Commonwealth, 4 Grat. 541;
Gentry v. McMinnis, 3
Dana 382;
In re Camille, 6 F. 256;
In re Young,
198 F. 715, 717;
In re Lampitoe, 232 F. 382;
In re
Alverto, 198 F. 688;
In re Knight, 171 F. 299; 2 Kent
Comm. (12th ed.) 73, note.
Cf. the decisions in the days
of slavery.
Gentry v. McMinnis, 3 Dana 382;
Morrison
v. White, 16 La.Ann. 100, 102;
see Scott v. Raub, 88
Va. 721, 727-729, 14 S.E. 178. [
Footnote 1]
The California Alien Land Law must be read in the light of these
rulings as to the effect of birth and race. Section 1 of the act
(Cal.Stat. 1923, p. 1020, § 1, amending Cal.Stat. 1921, p. lxxxiii)
provides that all aliens eligible for citizenship may acquire and
occupy real property to the same extent as citizens. Section 2 (as
amended by § 2 of act of 1923) provides that aliens not eligible
for citizenship may use and occupy real property to the extent
prescribed by any treaty between the Government of the United
States and the nation or country of which such alien is a citizen
or subject, "and not
Page 291 U. S. 87
otherwise." There is a treaty between the United States and
Japan (Feb. 21, 1911, 37 Stat. 1504) by which the Japanese may own
or lease houses, manufactories, warehouses, and shops, and may
lease land for residential and commercial purposes. The treaty does
not confer a privilege to own or use land for the purposes of
agriculture.
Webb v. O'Brien, supra, p. 323;
Frick v.
Webb, 263 U. S. 326.
Section 3 of the Act prescribes the rule applicable to the
acquisition of shares in corporations organized by aliens for the
occupation or use of land; §§ 4 and 5 (as amended by §§ 4 and 5)
prescribe the rule for alien trustees and guardians; §§ 7, 8, and 9
provide for the escheat to the state of any interest in real
property unlawfully acquired. Section 10 provides that:
"If two or more persons conspire to violate any of the
provisions of this act, they are punishable by imprisonment in the
county jail or state penitentiary not exceeding two years or by a
fine not exceeding five thousand dollars, or both."
This is the section under which the defendants have been
convicted. There is nothing in the statute whereby unlawful
occupation of land by an alien ineligible for citizenship is
declared to be a crime unless the occupation has been acquired by
force of a conspiracy.
This Court, in
Morrison v. California, 288 U.S. 591,
[
Footnote 2] passed upon a
controversy as to the validity of § 9b of the California Alien Land
Law, which, though akin to § 9a, has important elements of
difference. This section (9b) provides in substance that, when it
has been proved that the defendant has been in the use or
occupation of real property, and when it has also been proved that
he is a member of a race ineligible for citizenship under the
naturalization laws of the United States, the defendant shall
have
Page 291 U. S. 88
the burden of proving citizenship as a defense. [
Footnote 3] We sustained that enactment when
challenged as invalid under the Fourteenth Amendment of the Federal
Constitution. The state had given evidence with reference to the
defendant, the occupant of the land, that, by reason of his race,
he was ineligible to be made a citizen. With this evidence present,
we held that the burden was his to show that, by reason of his
birth, he was a citizen already, and thus to bring himself within a
rule which has the effect of an exception. In the vast majority of
cases, he could do this without trouble if his claim of citizenship
was honest. The people, on the other hand, if forced to disprove
his claim, would be relatively helpless. In all likelihood, his
life history would be known only to himself and at times to
relatives or intimates unwilling to speak against him.
The ruling was not novel. The decisions are manifold that,
within limits of reason and fairness, the burden of proof may be
lifted from the state in criminal prosecutions and cast on a
defendant. The limits are in substance these -- that the state
shall have proved enough to make it just for the defendant to be
required to repel what
Page 291 U. S. 89
has been proved with excuse or explanation, or at least that,
upon a balancing of convenience or of the opportunities for
knowledge, the shifting of the burden will be found to be an aid to
the accuser without subjecting the accused to hardship or
oppression.
Cf. Wigmore, Evidence, vol. 5, §§ 2486, 2512,
and cases cited. Special reasons are at hand to make the change
permissible when citizenship
vel non is the issue to be
determined. Citizenship is a privilege not due of common right. One
who lays claim to it as his, and does this in justification or
excuse of an act otherwise illegal, may fairly be called upon to
prove his title good. In accord with that view are decisions of
this Court in proceedings under the acts of Congress for the
deportation of aliens. A Chinaman by race resisted deportation on
the ground that, though a Chinaman, he had been born in the United
States. The ruling was that, as to the place of birth, the burden
was upon the alien, and not upon the government. The ruling also
was that the imposition of that burden did not deprive the alien of
his constitutional immunities.
Chin Bak Kan v. United
States, 186 U. S. 193,
186 U. S.
200.
"The inestimable heritage of citizenship is not to be conceded
to those who seek to avail themselves of it under pressure of a
particular exigency, without being able to show that it was ever
possessed."
Ibid. See also Ah How v. United States,
193 U. S. 65,
193 U. S. 76;
Christy v. Leong Don, 5 F.2d 135.
Cf. Ng Fung Ho v.
White, 259 U. S. 276,
259 U. S. 283.
We adhered to that principle in
Morrison v. California,
supra. Upon that basis, we approved the ruling of the Supreme
Court of California (
People v. Osaki, 209 Cal. 169, 286 P.
1025) that § 9b of the Alien Land Law casting upon a Japanese
defendant the burden of proving citizenship after proof of his race
had been given by the state, was not an impairment of his
immunities under the Federal Constitution. No point was made in the
statement of jurisdiction or the supporting brief that
Page 291 U. S. 90
the crime was conspiracy, and that one of the defendants
belonged to the white race. The case was submitted as if both were
Japanese.
The question is now as to § 9a. Obviously there is a wide
difference between the scope of the two sections. Possession of
agricultural land by one not shown to be ineligible for citizenship
is an act that carries with it not even a hint of criminality. To
prove such possession without more is to take hardly a step forward
in support of an indictment. No such probability of wrongdoing
grows out of the naked fact of use or occupation as to awaken a
belief that the user or occupier is guilty if he fails to come
forward with excuse or explanation.
Yee Hem v. United
States, 268 U. S. 178,
268 U. S.
183-184;
Luria v. United States, 231 U. S.
9,
231 U. S. 25;
Casey v. United States, 276 U. S. 413,
276 U. S. 418;
Mobile, J.K. & C. R. Co. v. Turnipseed, 219 U. S.
35,
219 U. S. 42-43;
Bailey v. Alabama, 219 U. S. 219,
219 U. S. 233,
219 U. S. 238;
Manley v. Georgia, 279 U. S. 1;
People v. Cannon, 139 N.Y. 32. "The legislature may go a
good way in raising [a presumption] or in changing the burden of
proof, but there are limits."
McFarland v. American Sugar
Co., 241 U. S. 79,
241 U. S. 86.
What is proved must be so related to what is inferred in the case
of a true presumption as to be at least a warning signal according
to the teachings of experience. "It is not within the province of a
legislature to declare an individual guilty or presumptively guilty
of a crime."
McFarland v. American Sugar Co., supra; Bailey v.
Alabama, supra; Manley v. Georgia, supra. There are, indeed,
"presumptions that are not evidence in a proper sense, but simply
regulations of the burden of proof."
Casey v. United States,
supra. Even so, the occasions that justify regulations of the
one order have a kinship, if nothing more, to those that justify
the others. For a transfer of the burden, experience must teach
that the evidence held to be inculpatory has at least a sinister
significance (
Yee Hem v. United States, supra; Casey
v.
Page 291 U. S. 91
United States, supra), or, if this at times be lacking,
there must be, in any event, a manifest disparity in convenience of
proof and opportunity for knowledge -- as, for instance, where a
general prohibition is applicable to everyone who is unable to
bring himself within the range of an exception. Greenleaf,
Evidence, Vol. 1, § 79. [
Footnote
4] The list is not exhaustive. Other instances may have arisen
or may develop in the future where the balance of convenience can
be redressed without oppression to the defendant through the same
procedural expedient. The decisive considerations are too variable,
too much distinctions of degree, too dependent in last analysis
upon a common sense estimate of fairness or of facilities of proof,
to be crowded into a formula. One can do no more than adumbrate
them; sharper definition must await the specific case as it
arises.
We turn to this statute, and endeavor to assign it to its class.
In the law of California, there is no general prohibition of the
use of agricultural lands by aliens, with special or limited
provisos or exceptions. To the contrary, it is the privilege that
is general, and only the prohibition that is limited and special.
Without preliminary
Page 291 U. S. 92
proof of race, occupation of the land is not even a suspicious
circumstance. The inquiry must therefore be whether occupants so
situated may be charged with the burden of proving themselves
eligible, and thus establishing their innocence.
First. The indictment is for conspiracy, and, indeed,
the Alien Land Law creates no other crime.
In re Akado,
188 Cal. 739, 742, 207 P. 245;
Mott v. Cline, 200 Cal.
434, 448, 253 P. 718;
California Delta Farms v. Chinese
American Farms, 207 Cal. 298, 308, 278 P. 227. Morrison and
Doi are charged to have conspired, but Doi alone is charged to be
ineligible for citizenship. One might suppose from a reading of the
statute that the burden of proof, even if shifted as to him, would
be unaffected as to Morrison. The California courts, however, have
cast the same burden upon both, and both have been convicted.
Nonetheless, in applying the presumption, we must keep before us
steadily the quality of their crime. It is impossible in the nature
of things for a man to conspire with himself.
Turinetti v.
United States, 2 F.2d 15, 17. In California, as elsewhere,
conspiracy imports a corrupt agreement between not less than two
with guilty knowledge on the part of each.
People v.
Richards, 67 Cal. 412, 7 P. 828;
People v. Kizer, 22
Cal. App. 10, 14, 133 P. 516, 521;
People v. Entriken, 106
Cal. App. 29, 32, 288 P. 788;
Sands v. Commonwealth, 21
Grat. 871, 899;
Pettibone v. United States, 148 U.
S. 197,
148 U. S.
203-205.
Now, plainly as to Morrison, an imputation of knowledge is a
wholly arbitrary presumption. He may never have seen Doi before the
transfer of possession or afterwards. He may have made his
agreement by an agent, or over the telephone, or by writings
delivered through the mails. Even if lessor and lessee came
together face to face, there is nothing to show whether Doi was a
Japanese of the full blood, whose race would have been apparent
Page 291 U. S. 93
to anyone looking at him. Moreover, if his race was apparent, he
may still have been a citizen, for anything that was known to
Morrison or others. The statute does not make it a crime to put a
lessee into possession without knowledge or inquiry as to race and
place of birth. The statute makes it a crime to put an ineligible
lessee into possession as the result of a willful conspiracy to
violate the law. Nothing in the People's evidence gives support to
the inference that Morrison had knowledge of the disqualifications
of his tenant or could testify about them. What was known to him,
so far as the evidence discloses, was known also to the People, and
provable with equal case. Only an arbitrary mandate could charge
him with guilty knowledge as an inference of law if it were proved
that Doi was not a citizen or eligible to become one. Still less
can he be charged with such knowledge when Doi's disqualification
is itself a mere presumption. In such circumstances, the conviction
of Morrison because he failed to assume the burden of disproving a
conspiracy was a denial of due process that vitiates the judgment
as to him. Nor is that the only consequence. Doi was not a
conspirator, however guilty his own state of mind, unless Morrison
had shared in the guilty knowledge and design.
Pettibone v.
United States, supra; Gebardi v. United States, 287 U.
S. 112,
287 U. S. 123.
The joinder was something to be proved, for it was of the essence
of the crime. Without it, there was a civil wrong, but not a
criminal conspiracy, the only crime denounced.
In re Akado,
supra. The conviction, failing as to the one defendant, must
fail as to the other.
Turinetti v. United States, supra;
Williams v. United States, 282 F. 481, 484;
Gebardi v.
United States, supra.
Second. The result will not be changed if we view the
case on the assumption that possession by one ineligible, when it
is the product of agreement, may be criminal as to the tenant who
holds with guilty knowledge, though
Page 291 U. S. 94
innocent as to the landlord who believes that all is lawful.
We have pointed out before that a lease of agricultural land,
unaccompanied by evidence of the race of the lessee, conveys no
hint of criminality. For the moment, we assume, without intending
to decide, that strong considerations of convenience, if they
existed, might cast upon the tenant the burden of proving his
qualifications and thus disproving guilt. The question will then be
whether the normal burden of proof will so thwart or hamper justice
as to create a practical necessity, without preponderating hardship
to the defendant, for a departure from the usual rule.
In the vast majority of cases, the race of a Japanese or a
Chinaman will be known to anyone who looks at him. There is no
practical necessity in such circumstances for shifting the burden
to the defendant. Not only is there no necessity; there is only a
faint promotion of procedural convenience. The triers of the facts
will look upon the defendant sitting in the courtroom, and will
draw their own conclusions. If more than this is necessary, the
people may call witnesses familiar with the characteristics of the
race, who will state his racial origin. The only situation in which
the shifting of the burden can be of any substantial profit to the
state is where the defendant is of mixed blood, the white or the
African so preponderating that there will be no external evidence
of another. But, in such circumstances, the promotion of
convenience from the point of view of the prosecution will be
outweighed by the probability of injustice to the accused. One
whose racial origins are so blended as to be not discoverable at
sight will often be unaware of them. If he can state nothing but
his ignorance, he has not sustained the burden of proving
eligibility, and must stand condemned of crime.
Reflection will satisfy that the chance of this injustice is not
remote or shadowy. Let us assume a charge that
Page 291 U. S. 95
agricultural land has been occupied by Filipinos not born in the
United States, and not entitled to the privileges growing out of
service in the army or the navy. 8 U.S.C. § 388. They are then
ineligible for citizenship, and subject to indictment under the
laws of California if they have gone into possession in aid of a
conspiracy. But Filipinos have intermarried with many other
peoples. They have intermarried with whites and with Negroes and
mulattos. A laborer, born in Canada, his parents apparently
mulattos, but one of his grandparents a Filipino, according to the
charge in an indictment, would be ignorant in many cases whether he
was a Filipino or an African. The admixture of oriental blood might
be too slight for his race to be apparent to the eye, and family
traditions are not always well preserved, especially when the
descendants are men and women of humble origin, remote from kith
and kin. The same possibility of injustice would be present where
the occupant of the land is a descendant of Mexicans and Indians,
[
Footnote 5]
Page 291 U. S. 96
or an Eurasian, his ancestors party Europeans and partly
Asiatics. [
Footnote 6]
The probability is thus apparent that the transfer of the burden
may result in grave injustice in the only class of cases in which
it will be of any practical importance. The statute does not say
that the defendant shall be acquitted if he does not know his
racial origin and is unable to make proof of it. What the effect of
such a law would be we are not required to consider. To the
contrary, the statute says, in substance, that, unless he can and
does prove it, he will have failed to discharge his burden, and
will therefore be found guilty. Moreover, if he were to profess
ignorance, and ignorance were an excuse, the trier of the facts
might refuse to credit him. Holmes, J., in
Ah How v. United
States, supra, p.
193 U. S. 76.
There can be no escape from hardship and injustice, outweighing
many times any procedural convenience, unless the burden of
persuasion in respect of racial origin is cast upon the people.
What has been written applies only to those provisions of the
statute that prescribe the rule for criminal causes.
Page 291 U. S. 97
Other considerations may or may not apply where the controversy
is civil. We leave that question open.
The judgment is reversed, and the cause remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
[
Footnote 1]
The opinions in
Jeffries v. Ankeny, 11 Ohio, 372 and
Gray v. State, 4 Ohio 353, rest upon peculiar provisions
of the Ohio Constitution.
[
Footnote 2]
The appeal was dismissed for the want of a substantial federal
question upon a statement as to jurisdiction, and without argument
of counsel.
[
Footnote 3]
"Sec. 9b. In any action or proceeding, civil or criminal, by the
State pf California or the people thereof, under any of the
provisions of this act, when the complaint, indictment, or
information alleges the alienage and ineligibility to United States
citizenship of any defendant, proof by the state, or the people
thereof, of the acquisition, possession, enjoyment, use,
cultivation, occupation, or transferring of real property or any
interest therein, or the having in whole or in part of the
beneficial use thereof by such defendant, or of any such facts, and
in addition proof that such defendant is a member of a race
ineligible to citizenship under the naturalization laws of the
United States, shall create a
prima facie presumption of
the ineligibility to citizenship of such defendant, and the burden
of proving citizenship or eligibility to citizenship as a defense
to any such action or proceeding shall thereupon devolve upon such
defendant."
Cal.Stats.1927, c. 528, p. 881.
[
Footnote 4]
Instances of the application of this principle can be cited in
profusion. The cases that follow are typical examples:
King v.
Turner, 5 Maule & Sel. 206, where a defendant, having game
in his possession in violation of a statute whereby possession was
generally a crime, was held to have the burden of proving his
special qualifications (
cf. Yee Hem v. United States, supra;
also Spieres v. Parker, 1 T.R. 144, per Lord Mansfield);
Fleming v. People, 27 N.Y. 329, a prosecution for bigamy,
where, on proof that the defendant had contracted a second marriage
during the lifetime of his first wife, the burden was laid upon him
to prove exceptional circumstances that would have made the
marriage lawful, and, finally, such cases as
Potter v.
Deyo, 19 Wend. 361, 363, and
United States v. Turner,
266 F. 248 (typical of a host of others), where a defendant has
been subjected to the burden of producing a license or a permit for
a business or profession that would otherwise be illegal.
Cf.
United States v. Hayward, 26 Fed.Cas. 240;
Board Comm'rs
v. Merchant, 103 N.Y. 143, 8 N.E. 484.
[
Footnote 5]
Indians not born in the United States and not entitled to the
special privileges growing out of service in the war (8 U.S.C. § 3)
are ineligible for citizenship.
There is a strain of Indian blood in many of the inhabitants of
Mexico as well as in the peoples of Central and South America.
Robert F. Foerster, The Racial Problems Involved in Immigration
from Latin America and the West Indies to the United States, Report
to Secretary of Labor, 1925, pp. 7, 10, 15, 17, 18, 21, 22, 23, 24,
28, 29, 41.
Whether persons of such descent may be naturalized in the United
States is still an unsettled question.
The subject was considered in
Matter of Rodriguez, 81
F. 337, but not all that was there said is consistent with later
decisions of this Court.
Ozawa v. United States, and
United States v. Thind, supra. Cf. In re Camille,
supra.
Mexicans have migrated into California in increasingly large
numbers (T. F. Woofter, Jr., Status of Racial and Ethnic Groups in
"Recent Social Trends," Vol. 1, pp. 553, 562, 572, 573), and there
have developed racial problems which have been considered by
official bodies. California Departments of Industrial Relations,
Agriculture, and Social Welfare, "Mexicans in California," Report
by Governor C.C. Young's Mexican Fact Finding Committee, San
Francisco, Cal., 1930, pp. 41,
et seq.
The Treaty of Amity, Commerce, and Navigation of 1831 between
the United States and Mexico gives to the nationals of either
country the privilege of owning personal estate in the other (Art.
XIII), but contains no provision in respect of the ownership of
land. This treaty was revived after the Mexican War by Article XVII
of the Treaty of Guadalupe Hidalgo (1848). It was terminated by
Mexico in November, 1881.
See Malloy, Treaties, Vol. 1, p.
1085.
[
Footnote 6]
As to the appearance of children of marriages between Japanese
and the white races,
see S.C. Gulick, The American
Japanese Problem, p. 153; Iyenaga and Sato, Japan and the
California Problem, p. 157.