United States v. Karnuth
Citation | 74 F. Supp. 660 |
Decision Date | 28 November 1947 |
Docket Number | Civ. No. 3588. |
Parties | UNITED STATES ex rel. GOODWIN v. KARNUTH. |
Court | U.S. District Court — Western District of New York |
Edward E. Franchot, of Niagara Falls, N. Y., for petitioner.
Hon. George L. Grobe, U. S. Atty., and Herman I. Branse, Naturalization Examiner Review Immigration and Naturalization Service, both of Buffalo, N. Y. (R. Norman Kirchgraber, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for respondent.
Petitioner was taken into custody by the Immigration and Naturalization Service pursuant to a warrant directing her deportation to Canada on the ground that she was not in possession of an immigration visa and passport and that she entered by false and misleading statements, thereby entering without inspection. A writ of habeas corpus was then issued by this court upon a petition by the petitioner, who claimed that she was being illegally detained.
Petitioner is a full-blooded North American Indian, born on the Six Nations Reservation, Brantford, Ontario, Canada, on May 28, 1918. She claims to be a member of the Upper Cayuga Tribe of the Six Nations Indians in Canada. On November 21, 1934, she married a native citizen of Canada of the white race. The warrant of deportation is dated July 13, 1946.
Section 226a of Chapter 6, Immigration, of Title 8 of U.S.C.A., which deals with Aliens and Nationality, provides as follows: This section became effective April 2, 1928.
Respondent urges that it does not apply to Indians who are not members of a tribe and claims that petitioner is tribeless because of section 14 of the Indian Act of Canada, Ch. 98, Rev.Stat. of Canada, 1927, which reads:
The term "Indian" is not defined in Title 8 of U.S.C.A. or in Chapter 6 dealing with Immigration. Is it to be given a political connotation, as urged by respondent, or a racial connotation, as urged by petitioner?
In 42 C.J.S., Indians, § 1 it is said: The only authority cited for this statement is Frazee v. Spokane County, 29 Wash. 278, 69 P. 779.
In Mosier v. United States, 8 Cir., 198 F. 54 certiorari denied 229 U.S. 619, 33 S.Ct. 778, 57 L.Ed. 1354, a case involving a violation of the Act of June 28, 1906, 34 Stat. 539, prohibiting the giving of liquor to Osage Indians of Oklahoma, the court said: 198 F. at page 57.
In other Federal Statutes, the term "Indian" connotes "blood".
Section 479 of Title 25 of U.S.C.A., dealing with Indians, provides as follows: * * *."
This section became effective June 18, 1934.
Section 206 of Title 48 of U.S.C.A., dealing with Territories and Insular Possessions, contains definitions among which are these:
The criterion of "blood" is applied in Section 212c of 8 U.S.C.A., in defining the terms "persons of races indigenous to India" and "Chinese person."
Section 222 of 8 U.S.C.A. provides: "The Commissioner of Immigration and Naturalization, with the approval of the Attorney General, shall prescribe rules and regulations for the enforcement of the provisions of this chapter; but all such rules and regulations, insofar as they relate to the administration by consular officers, shall be prescribed by the Secretary of State on the recommendation of the Attorney General."
"These regulations, prescribed pursuant to law, have the force and effect of law." Haff v. Tom Tang Shee, 9 Cir., 63 F.2d 191, 193. "If these regulations conflict with an act of Congress or with a treaty, which is the law of the land (U.S.Const. art. 6, cl. 2), they would to that extent be void." Shizuko Kumanomido v. Nagle, 9 Cir. 40 F.2d 42, 44.
It appears that no case precisely like the present has been judicially decided. McCandless v. United States, 25 F.2d 71, was decided by the Circuit Court of Appeals, 3rd Cir. on March 9, 1928, a few days before the enactment of 8 U.S.C.A. § 226a. In that case Paul Diabo, a full-blooded Indian of the Iroquois tribe, known as the Six Nations, born on a reservation of that tribe in the Dominion of Canada, had been arrested on a warrant issued on complaint of the Commissioner of Immigration for the port of Philadelphia for an alleged violation of law in entering the United States without complying with the immigration laws. The question was decided on a writ of habeas corpus. "After hearing he was discharged from custody, whereupon this appeal was taken, and the question involved is whether the immigration laws of the United States apply to members of the tribe of the Six Nations born in Canada." 25 F.2d at page 71.
The Circuit Court quoted Article III of the Jay Treaty, 8 Stat. 117, made in 1794 between Great Britain and the United States, and article 9 of the Treaty of Ghent, 8 Stat. 222, which ended the War of 1812, and affirmed the order of the court below (D.C., 18 F.2d 282) discharging Diabo from custody.
From the court's opinion it appears that Diabo during all the time of his residence in the United States was a member of "the tribe of the Six Nations born in Canada."
Article III of the Jay Treaty of 1794 provided: "It is agreed that it shall at all times be free to his Majesty's subjects, and to the citizens of the United States, and also to the Indians dwelling on either side of the said boundary line, freely to pass and repass by land or inland navigation, into the respective...
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