[Federal Register Volume 62, Number 79 (Thursday, April 24, 1997)]
[Rules and Regulations]
[Pages 19928-19934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10498]
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DEPARTMENT OF JUSTICE
28 CFR Part 74
[Order No. 2077-97]
Redress Provisions for Persons of Japanese Ancestry: Guidelines
Under Ishida v. United States
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: The Department of Justice (``Department'') hereby adopts a
change to the regulations governing redress provisions for persons of
Japanese ancestry. This change will amend the standards of the Civil
Liberties Act of 1988, which authorizes the Attorney General to
identify, locate, and make payments of $20,000 to eligible persons of
Japanese ancestry. This change will amend the Act's standards to make
eligible those persons who were born outside the prohibited military
zones on the West Coast after their parents ``voluntarily'' evacuated
as a result of military proclamations issued pursuant to Executive
Order 9066. This change will also make eligible for redress those
persons who were born outside the prohibited military zones in the
United States after their parents were released from internment camps
and whose parents had resided in areas that became part of the
prohibited military zones on the West Coast immediately prior to their
internment. In practice, this amendment will make potentially eligible
those persons who were born after their parents were evacuated,
relocated, or interned by the United States Government, and who were
legally excluded from their parents' original place of residence in the
prohibited military zones on the West Coast.
EFFECTIVE DATE: May 27, 1997.
FOR FURTHER INFORMATION CONTACT:
Tink D. Cooper or Emlei M. Kuboyama, Office of Redress Administration,
Civil Rights Division, U.S. Department of Justice, P.O. Box 66260,
Washington, D.C. 20035-6260; (888) 219-6900 (voice) (toll-free) or
(202) 219-4710 (TDD).
SUPPLEMENTARY INFORMATION:
I. Background
The Civil Liberties Act of 1988, Pub. L. No. 100-383, 102 Stat. 903
(codified at 50 U.S.C. app. 1989b-4) (``the Act''), enacted into law
the recommendations of the Commission on Wartime Relocation and
Internment of Civilians established by Congress in 1980. See Commission
on Wartime Relocation and Internment of Civilians Act, Pub. L. No. 96-
317, 94 Stat. 964 (1980). This bipartisan commission was established:
(1) to review the facts and circumstances surrounding Executive Order
9066, issued February 19, 1942 (E.O. 9066''), and the impact of that
Executive Order on American citizens and permanent resident aliens of
Japanese ancestry; (2) to review directives of United States military
forces requiring the relocation and, in some cases, detention in
internment camps of these American citizens and permanent resident
aliens; and (3) to recommend appropriate remedies. The Commission
submitted to Congress in June 1983 a unanimous report, Personal Justice
Denied Part 2: Recommendations, which extensively reviewed the history
and circumstances of the decisions to exclude, to remove, and then to
detain Japanese-Americans and Japanese resident aliens from the West
Coast, as well as the treatment of Aleuts during World War II. The
final part of the Commission's report, Personal Justice Denied Part 2:
Recommendations, concluded that these events were influenced by racial
prejudice, war hysteria, and a failure of political leadership, and
recommended remedial action to be taken by Congress and the President.
On August 10, 1988, President Ronald Reagan signed the Act into
law. The purposes of the Act were to acknowledge and apologize for the
fundamental injustice of the evacuation, relocation, and internment of
Japanese-Americans and permanent resident aliens of Japanese ancestry,
to make restitution, and to fund a public education program to prevent
the recurrence of any similar event in the future.
Section 105 of the Act makes the Attorney General responsible for
identifying, locating, and authorizing payment of redress to eligible
individuals. 50 U.S.C. app. 1989b-4. The Attorney General delegated
these responsibilities and duties assigned to her to the Assistant
Attorney General for Civil Rights, who, in keeping with precedent, has
designated the Office of Redress Administration (``ORA'') in the Civil
Rights Division to carry out the responsibilities and duties mandated
by the Act.
ORA is charged with identifying and locating persons who are
eligible for redress under the Act. To date,
[[Page 19929]]
restitution has been paid to a total of 80,120 Japanese-Americans and
permanent resident aliens of Japanese ancestry.
In the preamble of the final regulation implementing the Act,
published in 1989, the Department stated that ``[w]hile children born
in assembly centers, relocations [sic] camps and internment camps are
included as eligible for compensation, the regulations do not include
as eligible children born after their parents had voluntarily relocated
from prohibited military zones or from assembly centers, relocation
camps, or internment camps.'' 54 FR 34,160 (1989). A number of these
persons asserted claims for redress based on their parents' evacuation
or internment by the United States Government prior to their birth and
their subsequent inability to legally return to their parents' original
place of residence in the prohibited military zones on the West Coast.
However, based on section 108 of the Act and 28 CFR 74.4, ORA found
these persons ineligible for redress. Approximately 1,200 persons who
were born after their parents ``voluntarily'' evacuated from the
prohibited military zones or after their parents were released from
internment camps claimed compensation under the Act. Most of these
claimants were born prior to midnight on January 20, 1945, the
effective date of Proclamation No. 21, which rescinded the exclusion
orders for the remaining six prohibited zones on the West Coast, and
which lifted the general civilian exclusion restrictions on persons of
Japanese ancestry. ORA's denial of redress to these claimants was
upheld during the administrative appeal process set forth in 28 CFR
74.17 and in some decisions of the U.S. Court of Federal Claims. See
Tanihara v. United States, 32 Fed. Cl. 805 (1995); Ishida v. United
States, 31 Fed. Cl. 280 (1994). However, the United States Court of
Appeals for the Federal Circuit later determined that ORA's policy of
denying such claims was inconsistent with the terms of the Act. Ishida
v. United States, 59 F.3d 1224 (Fed. Cir. 1995); Consolo v. United
States, No. 94-5150 (Fed. Cir., July 10, 1995) (unpubl.).
II. Summary of the Regulation and Revised Interpretation
In order to conform to the court decisions, the Department has
revised its interpretation regarding the eligibility for redress of
persons who either were born after their parents ``voluntarily''
evacuated the prohibited military zones on the West Coast or who were
born after a parent had been forcibly evacuated from the prohibited
military zones on the West Coast and interned. Specifically, the
regulation reverses the Department's past policy of denying redress to
such persons who were born outside of the prohibited zones and excluded
by law from returning to a parent's original place of residence in the
prohibited military zones on the West Coast, and who are otherwise
eligible under these regulations.
The appellant in Ishida was born on November 23, 1942, in Ohio,
after his parents had voluntarily evacuated California in March 1942.
His claim for redress was based on his inability to return to
California during World War II. The Department's determination of
ineligibility was affirmed by the U.S. Court of Federal Claims. As
mentioned above, however, on July 6, 1995, the U.S. Court of Appeals
for the Federal Circuit reversed, holding that persons such as Ishida,
who were excluded by law ``from the parents' original place of
residence or the family home'' in a prohibited military zone, were
deprived of liberty as a result of the laws and orders specified in the
Act and were eligible to receive compensation under the Act. In the
companion case, Consolo, the court affirmed the trial court, holding
that for the reasons set forth in Ishida, the appellee, who was born in
Utah on April 11, 1943, after her parents had voluntarily moved from
California in March 1942, was also eligible to receive redress under
the Act.
The Department will be guided by certain principles in reviewing
this new category of eligible individuals. First, the Department will
apply the standard announced by the court not only to persons similarly
situated to the plaintiffs in Ishida and Consolo, who were born after
their parents ``voluntarily'' evacuated the prohibited military zones
on the West Coast pursuant to military proclamations, but also to
persons who were born after their parents had been forcibly evacuated
from the prohibited military zones on the West Coast and interned.
These latter persons, who were born outside of the prohibited military
zones after their parents were released from internment camps, also
could not return to their parents' original places of residence in the
prohibited military zones on the West Coast. Because, consistent with
the Federal Circuit's reasoning, persons in this category can also be
deemed to have been deprived of liberty, based solely on their Japanese
ancestry, as a result of certain United States Government actions, the
Department will also make redress available to them. Accordingly,
redress will be made available to persons born outside of the
prohibited military zones after their parents were interned, where at
least one parent's original place of residence immediately prior to his
or her internment was in the prohibited military zones of the West
Coast. However, this change will not affect those persons born outside
of the prohibited military zones after their parents were released from
internment camps during the defined war period where such parents had
resided outside of the prohibited military zones on the West Coast
immediately prior to their internment.
Second, the Department will limit eligibility under this new
interpretation to claimants born prior to January 21, 1945, the date
upon which, pursuant to Proclamation No. 21, the final six Civilian
Restrictive Orders were rescinded. In addition to lifting the general
restrictions that had excluded persons of Japanese ancestry from their
original places of residence in the prohibited military zones on the
West Coast, Proclamation No. 21 lifted the restrictions for the
remaining six prohibited zones at midnight on January 20, 1945.
Accordingly, persons born on or after January 21, 1945 were not
excluded from and could legally return to their parents' original
residence on the West Coast.
Historical evidence indicates that persons of Japanese ancestry
were, in fact, allowed to return to the West Coast without any
restrictions as early as December 17, 1944, the date Proclamation No.
21 was issued and the War Department publicly announced the lifting of
the general exclusion orders. In addition, on December 18, 1944, the
Secretary of the Interior issued a press release stating that the
blanket exclusion orders for persons of Japanese ancestry on the
Pacific Coast were revoked. Moreover, War Relocation Authority
(``WRA'') records indicate that 26 people of Japanese ancestry left WRA
internment camps and returned to California between December 17, 1944,
and January 3, 1945. However, because Proclamation No. 21 might not
have been fully implemented or fully publicized at the time of its
issuance, ORA initially proposed that it would use as an eligibility
cut-off date the date of January 3, 1945, since the effective date of
Proclamation No. 21 was midnight on January 2, 1945.
Proclamation No. 21, however, also indicated that six Civilian
Exclusion Orders (Nos. 18, 19, 20, 23, 24, and 30) would remain in
effect until midnight, January 20, 1945. It stated further that the
effect of the rescission was to restore to all persons of Japanese
ancestry who were excluded under the military
[[Page 19930]]
proclamations pertaining to the West Coast, and who were not subject to
the individual exclusion orders, their ``full rights to enter and
remain in the military areas of the Western Defense Command.'' Id. at
2, para.10. Accordingly, in an effort to ensure that persons
covered by the six Civilian Exclusion Orders are also covered, the
Department will consider as potentially eligible claimants born prior
to January 21, 1945.
Third, the West Coast will be defined as those geographic areas in
California, the western portions of Washington and Oregon, and the
southern portion of Arizona where persons of Japanese ancestry were
excluded from residing pursuant to several military proclamations.
Proclamation No. 4 prohibited persons of Japanese ancestry from leaving
parts of the West Coast while the United States Government was
preparing to forcibly evacuate them. Subsequent proclamations were
issued to exclude those of Japanese ancestry from these defined West
Coast areas. For example, persons of Japanese ancestry were excluded
from Military Area No. 1 pursuant to Proclamation No. 7 of June 8,
1942, and excluded from the California portion of Military Area No. 2
pursuant to Proclamation No. 11 of August 18, 1942.
As discussed in more detail below, the Department's general
position regarding the Hawaiian and Alaskan exclusion zones is that if
such persons were born prior to the specific rescission dates of the
military prohibited zones from which their parents were dislocated,
then they will be potentially eligible for redress under the Ishida
standard. ORA will determine specific threshold dates for eligibility
on an individual basis by reference to the military proclamations
issued in Alaska and other historical information for different
military areas determined to be the equivalent of prohibited military
zones in Hawaii during World War II. These cases will be reviewed on a
case-by-case basis because each evacuation was different (i.e., the
initial evacuation date and the lifting of the exclusion varied
according to the circumstances in that location). It would be difficult
to describe each of the many possible scenarios here. The Department
concurs with the view that some claimants whose parent's or parents'
original home was in Hawaii or Alaska may qualify for redress under the
Ishida standard. Further, under section 74.3(c) of the Act's
regulations, the Administrator has discretion to review unique cases.
Therefore, the legal principle established in this rule will be applied
by the Department for the unique circumstances of Hawaii and Alaska.
Fourth, the Department notes that for purposes of interpreting the
Act and its provisions, the date upon which the prohibited military
zones on the West Coast were eliminated is applicable. For instance,
the Act provides eligibility for a person ``enrolled'' on the
government records as ``being in a prohibited military zone'' during a
specified period. 50 U.S.C. app. 1989b-7(2)(B)(ii). However, since the
West Coast prohibited zones were generally eliminated as of January 3,
1945 (except for the six areas that were canceled as of January 20,
1945), a person born on or after January 3, 1945 would not be eligible
under this provision--he or she could not meet the Act's eligibility
requirements because the military prohibited zone was abolished before
he or she was born. The effect of Proclamation No. 21 was to restore to
all persons of Japanese ancestry their full rights to enter and remain
in the former prohibited zones on the West Coast. We note, however,
that a person could be enrolled on a government record in a prohibited
zone if that person was born in one of the six remaining prohibited
zones on or before January 20, 1945.
III. Responses to Comments
As a result of Ishida, the Department published a Notice of
Proposed Rulemaking inviting the public to submit comments on this
proposed category of eligible persons. 61 FR 17,667 (1996). The comment
period expired on June 20, 1996.
By the close of the comment period, the Department had received 246
timely comments: 241 from individuals and 5 from organizations
representing the interests of Japanese-Americans. Of these comments,
127 were based on form letters supporting eligibility for the group but
proposing a statutory deadline of June 30, 1946, instead of January 2,
1945. In addition, a few comments were not timely filed, as indicated
by the postmark, and were therefore not considered.
The Department analyzed each timely filed comment and considered
the merits of the points of view expressed in them. In response to
these comments, the Department has made some substantive changes to the
regulation and has also incorporated suggestions where appropriate.
Such changes were not made on the basis of the number of comments
addressing any one point, but only after a thorough consideration of
the merits of the points of view expressed in the comments and further
historical research. Other non-substantive changes were made in order
to provide further clarification.
The comments raised four main issues: (1) that persons were unable
to return immediately to the West Coast because of the lack of notice
that the exclusion zones were lifted on January 3, 1945; (2) that the
Ishida standard should also be applied to those whose parents' original
domicile was in Hawaii or Alaska; (3) that the date of birth for the
statutory threshold requirement for eligibility should be extended; and
(4) that children of persons under individual exclusion orders should
be considered eligible where their birth occurred during the period of
their parents' individual exclusion order.
First, a number of comments mentioned that there was a lack of
notice regarding the December 17, 1994 announcement of the lifting of
the exclusion restrictions on the West Coast by Proclamation No. 21 and
asserted that, as a result, many families were unaware that they could
return to the exclusion zones. (We note that the phrases ``exclusion
zones,'' the ``prohibited zone,'' and the ``prohibited military zones''
are used interchangeably.) Several comments suggested that dates other
than the date proposed by the Department should serve as the standard
for notice of the lifting of the exclusion zones on the West Coast,
including (1) the spring of 1945; (2) the summer of 1945; (3) the end
of World War II; (4) the end of 1945; (5) early 1946; (6) June 30,
1946; and (7) December 1946.
After conducting additional research, the Department concludes that
widespread public notice of the lifting of the exclusion restrictions
was disseminated in December 1944 and January 1945. Substantial
evidence exists of contemporaneous public notice beginning on December
17, 1944. News of the release of Public Proclamation No. 21, announcing
the lifting of the West Coast exclusion zones, was distributed
nationally by the Associated Press wire on December 17, 1944. In
addition, historical research indicates that between December 17, 1944,
and December 19, 1944, the lifting of the exclusion zones was
prominently reported in all the major newspapers examined: the Arkansas
Gazette, Arizona Republic, Chicago Tribune, Cleveland Plain Dealer,
Columbus Dispatch, Denver Post, New York Times, Pacific Citizen, Salt
Lake City Tribune, San Francisco Chronicle, and Spokesman's Review.
These particular newspapers were reviewed because of their nationwide
distribution or because of their publication in specific cities or
geographic areas where there was a large
[[Page 19931]]
population of persons of Japanese ancestry.
One comment noted that the lifting of the general exclusion order
was not reported in the Cleveland Plain Dealer in January 1945 and
confirmed this fact with the paper. We, however, located a lengthy
article in the Cleveland Plain Dealer, dated December 18, 1944, which
stated:
The War Department today revoked its order excluding all persons
of Japanese ancestry from the west coast * * *. Those persons of
Japanese ancestry whose records have stood the test of army scrutiny
during the past two years will be permitted the same freedom of
movement throughout the United States as other loyal citizens and
law abiding aliens.
``Army Drops West Coast Ban on Japs,'' Cleveland Plain Dealer, Dec. 18,
1944, at A1.
There is other historical evidence of public notification of the
lifting of the public proclamations on the West Coast before the war
ended. The United States Government allowed three Japanese-American
newspapers to continue to publish throughout the war. These newspapers
reported news in both English and Japanese and ``had wide circulation
in the relocation centers.'' U.S. Dept. of the Interior, People in
Motion: ``The Postwar Adjustment of the Evacuated Japanese Americans,''
203 (1947). One of these papers was the Pacific Citizen, published by
the Japanese American Citizens League, which was located in Salt Lake
City, Utah. Id. This newspaper, along with two others that were
published in Denver, provided a further, widely circulated source of
timely notice. For example, the Pacific Citizen reported rescission of
the prohibited zones as the lead story in its December 23, 1944 issue:
The War Department on December 17 revoked the military orders
excluding persons of Japanese ancestry from the Pacific coast
military area. The sweeping revocation of the exclusion orders
against citizens and law abiding aliens of Japanese ancestry was
carried out through the issuance of Public Proclamation No. 21 * *
*.
``Proclamation Restores Right of Evacuee Group to Return to Homes
After January 2,'' Pacific Citizen, Dec. 23, 1944, at 1. In fact, one
comment noted that the family subscribed to the Pacific Citizen and
stated that they knew they could return to the West Coast after January
2, 1945. Letter from National Coalition for Redress/Reparations, Janice
Yen, to ORA (June 17, 1996, enclosing 13 individual letters) (on file
with ORA).
Other evidence of the adequacy of public notice is shown by the
sheer numbers of Japanese-Americans who return to the West Coast in
1945. Some 47,235 Japanese-Americans returned to the former prohibited
zones in California, Washington, and Oregon, between January 1 and
December 31, 1945. This does not include persons who returned to the
former prohibited zone in southern Arizona. U.S. Dept. of Interior, WRA
Semi-Annual Report, July 1 to Dec. 31, 1945, Statistical App. Table I.
Another WRA report indicated that by June 1946, over 57,000 persons of
Japanese ancestry returned to the West Coast. U.S. Dept. of Interior,
WRA Semi-Annual Report, January 1 to June 30, 1946, at 11.
The second issue raised referred to the eligibility of persons
excluded from their parent or parents' original place of residence in
Hawaii or Alaska. Two comments stated that Hawaii was excluded from the
definition of the West Coast, but that there were claims from persons
who were evacuated and whose families had been excluded from their
original homes as a result of United States Government action within
Hawaii under military orders other than those that applied to the West
Coast. The Department acknowledges the existence of such orders and
that their dates of exclusion differed from those applicable to the
West Coast. The Department's research has also revealed that a similar
situation applied to Japanese-Americans located in certain areas of
Alaska that were designated prohibited military zones based on military
proclamations.
As a result, the Department will apply Ishida's legal standard in
Hawaii and Alaska in areas determined to be prohibited military zones;
however, because the period of each evacuation was different, the
eligibility cut-off date also must be different depending on the
circumstances prevalent in the various locations. Although it would be
difficult to describe each of the many different scenarios here, the
Department concurs with the views expressed in the comments that some
claimants whose parent's or parents' original home was in Hawaii or
Alaska may fall under the Ishida standard and will apply the legal
standard established in this rule to such claimants. Further, under
section 74.3(c) of the regulations, the Department has discretion to
review unique cases. 28 CFR 74.3(c). Thus, the Department finds that it
is not necessary to describe precisely each possible category of claims
and agrees that it has the discretion to resolve claims of this sort on
a case-by-case basis.
The Department's general position regarding the Hawaiian and
Alaskan exclusion zones is that if persons claiming redress on account
of their exclusion from such zones were born prior to the specific
rescission dates of the zone from which their parents were dislocated,
and otherwise satisfy all other threshold requirements under the Act,
then they will be potentially eligible for redress under the Ishida
standard. ORA will determine specific threshold dates for eligibility
on an individual basis by reference to the historical records in Alaska
and for different areas determined to be the equivalent of prohibited
military zones in Hawaii (those exclusion zones were lifted not by
Proclamation No. 21, but by equivalent military orders).
A third issue raised by a majority of the comments was the request
for an extension of the threshold date for eligibility, proposed as
January 3, 1945, to a later date. There were several suggestions for
different dates of eligibility to serve as the standard for notice of
the lifting of the prohibited military zones on the West Coast. In
determining the date that will serve as the standard, however, we must
apply the legal standard set forth by the court in Ishida. The Ishida
court established the standard for redress eligibility for persons who
were never interned or evacuated based on the deprivation of liberty
inflicted on children who were at birth ``excluded by law'' from
``their parents' original place of residence.'' Ishida, 59 F.3d at
1226. The court stated:
[W]e hold the Act entitles to compensation all children who were
deprived of liberty because they were excluded from their family
homes as a result of Executive Order 9066 and who could not return
to their homes without committing a crime under the criminal
statute.
Id. at 1230. The court also stated that ``Congress intended to
cover those excluded from their `home' or `original place of residence'
in a prohibited military zone * * * directly as a result of the
government's actions''. Id. at 1233. The court's focus was on E.O. 9066
and the related military orders issued pursuant to its authority. Thus,
once the United States Government action was canceled (i.e., the
military proclamations were rescinded) there was no legal bar to the
return of such persons to the West Coast. Proclamation No. 21, issued
on December 17, 1944, and effective January 2, 1945, rescinded the
general legal exclusion enforced under E.O. 9066 excluding individuals
of Japanese ancestry from the West Coast. Under Proclamation No. 21,
this legal bar was canceled, except for the six small zones maintained
by the Army until January 20, 1945.
The Department recognizes that there were hardships involved in
returning to
[[Page 19932]]
the West Coast. However, it must determine which date is legally
sufficient under Ishida. The Department initially proposed an
eligibility threshold date of January 3, 1945, the date upon which
rescission of the general West Coast exclusion zones became effective.
Several different threshold dates, ranging from spring 1945 to December
1946, were proposed by the comments, while a few comments suggested
approval of the rule without suggesting a threshold date. The summer of
1945 was mentioned as an appropriate date due to the fact that anti-
Japanese public sentiment waned in the exclusion zones as the war began
winding down. The end of the war, on September 2, 1945, was also
suggested as an appropriate date due to the difficulties of travel, as
well as the anti-Japanese public sentiment that existed during wartime.
The majority of comments, however, suggested a threshold eligibility
date of June 30, 1946, the date upon which the WRA, the agency created
to supervise the internment camps, was abolished by Executive Order.
The date of June 30, 1946 was also used as the end date of the
internment period as defined by the Act. A comment from one
organization suggested an alternative date of March 20, 1946, which was
the date of the closure of the last WRA camp at Tule Lake Relocation
Center. Letter from H. Robert Sakaniwa, Washington Representative,
Japanese American Citizens League, to ORA (June 14, 1996) (on file with
ORA). These proposed dates will be discussed below.
A few comments noted that the eligibility date should be extended
on the grounds that some families were unable to return to the West
Coast in early 1945 due to the mother's state of advanced pregnancy.
One comment asserted that March 3, 1945, should be used to allow an
extra three months after legal rescission in deference to a woman's
last trimester of pregnancy, when it would have been more difficult for
the family to travel.
Although the Department is sympathetic to persons who were in this
situation, it must be recognized that after January 20, 1945, the law
ceased to act to deprive affected individuals of their liberty to
travel and reside as they saw fit. Without a doubt, there were a number
of families who, for various reasons, were unable to return for some
time to the former exclusion zones. However, the fact remains that
after January 20, 1945, individuals were generally free under the law
to decide for themselves whether and when they should return to the
West Coast. This is the basis for eligibility under Ishida, and the
Department is bound by the court's strictures.
Many comments suggested an extended eligibility date on the grounds
that harassment towards persons of Japanese ancestry, the lack of
housing, and depressed economic conditions prevented persons from
returning to the former West Coast exclusion zones. With regard to the
issue of harassment, historical records show that persons returning to
the West Coast were generally given full protection under the law,
although there were some isolated incidents in early 1945. Coinciding
with the Army's announcement of rescission of the West Coast exclusion
zones, on December 17, 1944, California's Governor Warren made a public
announcement, stating:
I am sure that all Americans will join in protecting
constitutional rights of the individuals involved, and will maintain
an attitude that will discourage friction and prevent civil
disorder. It is the most important function of citizenship, as well
as government, to protect constitutional rights and to maintain
order.
``Warren Urges Compliance With Exclusion Order,'' S.F. Chronicle,
Dec. 18, 1944, at A6. Governor Warren also instructed chiefs of police,
sheriffs and public officials throughout California to develop uniform
plans to prevent intemperate actions and civil disorder. Id. Governor
Sidney P. Osborn of Arizona similarly called upon citizens to ``go
along on the principles of justice and freedom our boys are fighting
for and treat these people with decency and fairness. Many of their
sons too are serving in the armed forces of the United States and * * *
many already have given their lives or been wounded.'' ``Governor of
Arizona Asks For Fairness,'' S.F. Chronicle, Dec. 18, 1944 at A6.
In addition, California's Attorney General Kenny announced in a
speech to sheriffs in March 1945:
This situation is peculiarly one in which many groups need to
cooperate wholeheartedly to assure results. The Sheriffs and Police
Chiefs have a direct and immediate part to play; [the Department of
Justice, Armed Services, War Relocation Authority and District
Attorneys also have responsibilities] and all of us, as adults and
responsible members of our communities, to do whatever we can to see
that the attitudes, too, of people are such as to allow the
Japanese-Americans to live in safety and peace in the areas in which
they resettle.
Katherine Luomala, ``California Takes Back Its Japanese Evacuees,'' 5
No. 3 Applied Anthropology, 25, 35 (1946).
As additional evidence of harassment, one comment referred to a New
York Times article, dated June 2, 1945, which reported a light sentence
given by a California state judge to a man arrested in an attack on a
returning Japanese-American. Another comment also referred to the 1945-
46 Annual Report published by the American Civil Liberties Union, which
was sharply critical of the state of California's efforts to protect
Japanese-Americans. However, the report also stated that by mid-July
1945, the ``terrorism virtually subsided.'' ACLU of Northern
California, 1945-46 Annual Report at 7 (1946). Again, efforts were made
by state and local authorities to stop such incidents. In fact, the
Attorney General forwarded a letter to Governor Warren of California,
dated February 2, 1945, requesting that he ``take every possible step
to see that the returning Japanese are assured protection.'' Letter
from Francis Biddle, Attorney General, to Earl Warren, Governor of
California (Feb. 2, 1945) (on file with ORA). Unfortunately, some
incidents of harassment occurred; but hostile acts taken by private
individuals were not the result of any federal government action under
E.O. 9066 or related government action respecting the evacuation,
relocation, and internment program.
Further, with regard to the depressed economic conditions in the
former exclusion zones, it is the Department's position that this was a
matter beyond governmental control and is not the type of action the
court in Ishida intended to cover. However, we would point to evidence
that the United States Government did extend resettlement assistance to
returning Japanese-Americans. WRA reported that the Social Security
Board's program of ``Aid to Enemy Aliens and Others Affected by
Restrictive Action of Government'' extended:
Aid to families while they reestablished themselves or while
residence was being confirmed for them. The greatest need was in
California since families requiring assistance had been encouraged
to return to their place of previous residence. All counties in
California continued to cooperate with the WRA in granting
counseling, welfare assistance, and medical attention to the needy *
* * Under the ``Aid to Enemy Alien'' funds special counsellors
[interviewed] persons not on relief who were in hostels and
temporary installations in order to determine what their plans were
and to counsel them in finding jobs and housing. U.S. Dept. of
Interior, WRA Semi-Annual Report, Jan. 1 to June 30, 1946 at 12-13
(emphasis added).
The Pacific Citizen noted on its front page that federal and state
assistance was promised for Japanese-Americans returning to the West
Coast. ``Federal, State Aid Promised Japanese-Americans
[[Page 19933]]
Evacuees Who Return to Coast Farms,'' Pacific Citizen, January 20,
1945, at 1. The article also noted that the California War Board, AAA
Committee and Department of Agriculture pledged assistance, along with
the Federal Land Bank and the Farm Security Administration, which
offered to make rural rehabilitation loans to farmers. Id. Another
article in the same issue reported that Dillon Myer, WRA Director,
stated that federal agencies and the civilian and military authorities
were prepared to uphold the rights of returning evacuees of Japanese
ancestry. ``Army, Government Prepared to Uphold Rights of Nisei
Returning to Coast, Says Myer,'' Id. at 8. Local and state
organizations also assisted with the evacuees' return.
During that time period, there were problems with housing and
transportation for the general civilian population in the United
States, particularly in certain areas. Military servicemen, after being
released from active service, were returning to the United States from
the Pacific theater of war in significant numbers. To meet the shortage
of housing, hostels and temporary installations were operated by WRA in
cooperation with the Federal Public Housing Authority, and provided
housing for returnees. U.S. Dept. of Interior, WRA Semi-Annual Report,
Jan. 1 to June 30, 1946 at 13. Some hostels also provided job-seeking
assistance. ``Hostel Opened in Los Angeles to Aid Evacuee
Resettlement,'' Pacific Citizen, March 3, 1945, at 3. Eight hostels
were serving those returning to Los Angeles by July 1945. ``Eight
Hostels Serve Evacuees Returning to Los Angeles,'' Pacific Citizen,
July 28, 1945, at 8. Another 1,300 evacuees received temporary housing
in trailers and barracks in Los Angeles by November 1945. ``1,300
Evacuees Get Temporary Housing in Los Angeles Area,'' Pacific Citizen,
Nov. 17, 1945, at 3.
As a result of the hardships noted above, the majority of comments
suggested a threshold eligibility date of June 30, 1946, the
termination of the internment period as defined by the Act. Again, even
though on that date there continued to be hardships faced by returning
evacuees, it is clear that there was no longer a legal impediment
imposed by the United States Government in their relocation to the West
Coast. The court's focus in Ishida was on E.O. 9066 and the related
military orders issued pursuant to its authority, which excluded
persons of Japanese ancestry. Once the United States Government action
was canceled (i.e., the military proclamations were rescinded) there
existed no legal bar to their return to any portion of the West Coast.
Although persons suffered hardships, they returned to the West
Coast in large numbers prior to June 30, 1946. These numbers further
demonstrate the lifting of the legal bar that allowed persons of
Japanese ancestry to return to the area. Over 47,000 persons returned
in 1945 alone, while another 10,000 persons returned during the first
six months of 1946. U.S. Dept. of the Interior, WRA Semi-Annual Report,
July 1 to Dec. 31, 1945, at Statistical App. Table I; U.S. Dept. of
Interior, WRA Semi-Annual Report, January 1 to June 30, 1946, at 11
(1946).
Some comments asserted that, unless the June 30, 1946 date is
applied, the Department's policy will result in placing one group of
children, those who resided in free areas through 1946, at a
disadvantage vis-a-vis another group of children, those who were
confined in internment camps through June 1946. However, persons born
in internment camps and under WRA jurisdiction qualified for redress
prior to the Ishida decision based on their own internment. Nothing in
these regulations will affect their eligibility. They will continue to
qualify. As for persons born at liberty but outside of their parents'
original places of residence, the court in Ishida indicated a standard
of eligibility based upon deprivation of liberty ``when they were
excluded by law'' from their parents' original home in the prohibited
zones. Ishida, 59 F.3d at 1226. The parents' home must have been in the
prohibited military zones and the children must have been excluded
based on United States Government action in order to fall within the
Ishida holding. Thus, once the military proclamations were rescinded,
the prohibited zones were no longer in existence on the West Coast.
Finally, we note that another suggested date was December 1946.
This date falls outside of the statutorily defined ``internment
period'', however, and cannot be changed by regulation. Only
congressional action could amend the law to extend the defined period
of the Act.
After thorough consideration regarding the issues concerning the
threshold date and the suggested alternative dates, the Department has
adopted the standard proposed in a few comments which referred to the
fact that small portions of the exclusion zones were maintained by the
Army in certain areas of the West Coast until January 20, 1945, while
other United States Government action ceased on that date. Proclamation
No. 21, although effective at midnight on January 2, 1945, still
provided that six Civilian Exclusion Orders (Nos. 18, 19, 20, 23, 24,
and 30) would remain in effect until midnight, January 20, 1945. This
proclamation also stated that the effect of this rescission was to
restore to all persons of Japanese ancestry who were excluded under the
military proclamations of the West Coast, and who were not subject to
the individual exclusion orders, their ``full rights to enter and
remain in the military areas of the Western Defense Command.'' Id. at
2, para. 10. The Department agrees that, until midnight on January 20,
1945, there was a legal bar to persons returning to these six small
areas on the West Coast maintained by the Army. Recognizing that it
would be difficult to ascertain specific relocation addresses in these
six zones, the Department finds that the threshold date should be
January 21, 1945, the date when persons of Japanese ancestry were no
longer legally excluded from any portion of the prohibited zones on the
West Coast. The Department finds that this date complies with the
court's decision in Ishida. Once the proclamations were canceled and
the prohibited zones were revoked, there was no legal bar for Mr.
Ishida's parents to return to their original home. Similarly, for those
persons born on or after the date of January 21, 1945, there was no
legal bar against their parents returning to their original homes in
the former prohibited zones.
Finally, it is important to recognize that once Proclamation No. 21
was rescinded in December 1944, large numbers of persons of Japanese
ancestry began returning to the West Coast. Persons began returning
after December 17, 1944, and over the next year, over 47,000 Japanese
Americans returned to the West Coast. U.S. Dept. of the Interior, WRA
Semi-Annual Report, July 1 to Dec. 31, 1945, at Statistical App. Table
I.
The fourth issue raised by the comments concerns the eligibility of
persons who were excluded from their parents' original places of
residence after January 20, 1945, because their parents were the
subjects of individual exclusion orders. First, it should be emphasized
that this is a very small class of persons. Under Proclamation No. 21,
the exclusion was lifted for all Japanese-Americans with the exception
of those the Army had selected for individual exclusion orders. These
orders were based on the following type of criterion: refusal to
register for Selective Service or to serve in the armed forces;
voluntary submittal of a written statement of loyalty to an Axis power;
former employment by an Axis
[[Page 19934]]
power; and voluntary request of revocation of American citizenship. The
Commission on Wartime Relocation and Internment of Civilians, Personal
Justice Denied, 234, 235 (1982). Of the 4,963 persons to whom
individual exclusion orders applied in December 1944, 3,066 were in
Tule Lake Segregation Center. Others were in a number of camps, while
only 510 were residing outside of internment camps. Id. at 234. In
addition to the exclusion list, there was a so-called ``white list''
that named over 115,000 persons who would not be excluded from the West
Coast. Id. at 235. Thus, the vast majority of persons of Japanese
ancestry were free to return immediately to the West Coast.
Moreover, it is significant that Proclamation No. 21 lifted the
mass exclusion orders that were based exclusively on ancestry. In his
announcement of this proclamation, General Pratt stated:
[T]he logical and proper course is to terminate mass exclusion
based solely on ancestry and to substitute for it a system which,
while continuing to exclude and control those individuals who still
remain loyal to Japan . . . will restore full liberty of action to
all those who have been cleared by the Army.
``Army Lifts Blanket Ban On Japanese-Americans: No Mass Return
Expected,'' S.F. Chronicle, Dec. 18, 1944, at 1. In the New York Times,
General Pratt further stated that any person who was on the exclusion
list ``would have the right of appeal with counsel to boards of three
officers each . . . which would submit recommendations to the
commanding general.'' Lawrence E. Davies, ``Ban on Japanese Lifted on
Coast,'' N.Y. Times, Dec. 18, 1944, at 10.
Thus, the blanket exclusion previously based solely on ancestry
became based on ``disloyalty'' or the ``dangerousness'' of each
individual and, from that period forward, the persons affected had the
right to individualized hearings and due process proceedings. Support
for this distinction between the types of group versus individual
exclusion was also set forth in the Ishida decision. In Ishida, the
court contrasted the injustice of the blanket exclusion with the type
of individualized review procedures associated with individual
exclusion orders:
The government of the United States * * * executed this policy
to exclude * * * all Japanese Americans * * * solely because of
their national ancestry, without the individualized review procedure
employed in actions taken against suspected enemy aliens of other
nations.
Ishida, 59 F. 3d at 1227. Again, over 115,000 persons of Japanese
ancestry were not excluded from the West Coast. Personal Justice Denied
at 235. Only 510 persons subject to individual exclusion orders were
residing outside of the internment camps as of January 1945. Some of
these exclusion orders were canceled during 1945, while all such orders
were canceled in early September 1945. Although some comments indicated
that the individual exclusion orders were in effect through 1946,
historical evidence demonstrates that these individual exclusion orders
were rescinded by Proclamation No. 24, which was issued and became
effective at midnight on September 4, 1945. Thus, the last remaining
bar for this small group of individuals was canceled and there was no
exclusion for any person after that date or through June 30, 1946.
IV. Regulatory Matters
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this regulation and, by approving
it, certifies that it will not have a significant economic impact upon
a substantial number of small entities because this rule confers a
benefit on a limited group of individuals.
The Office of Management and Budget has determined that this final
rule is a significant regulatory action under Executive Order No. 12866
and, accordingly, this final rule has been reviewed and approved by the
Office of Management and Budget. Information collection associated with
this regulation has been approved by the Office of Management and
Budget under the provisions of the Paperwork Reduction Act of 1995. The
OMB control number for this collection is 1190-0010.
This rule is not a major rule as defined by Section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Nor will this rule result in the expenditure by state, local and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
List of Subjects in 28 CFR Part 74
Administrative practice and procedure, Aliens, Archives and
records, Citizenship and naturalization, Civil rights, Indemnity
payments, Minority groups, Nationality, War claims.
For the reasons set forth in the preamble and by the authority
vested in me, including 28 U.S.C. 509 and 510, chapter I of title 28 of
the Code of Federal Regulations is amended as follows:
PART 74--CIVIL LIBERTIES ACT REDRESS PROVISION
1. The authority citation for Part 74 continues to read as follows:
Authority: 50 U.S.C. app. 1989b.
2. In Subpart B, Sec. 74.3 is amended by adding paragraph (b)(9) to
read as follows:
Sec. 74.3 Eligibility determinations.
(a) * * *
(b) * * *
(9) Individuals born on or before January 20, 1945, to a parent or
parents who had been evacuated, relocated, or interned from his or her
original place of residence in the prohibited military zones on the
West Coast, on or after March 2, 1942, pursuant to paragraph (a)(4) of
this section, and who were excluded by Executive Order 9066 or military
proclamations issued under its authority, from their parent's or
parents' original place of residence in the prohibited military zones
on the West Coast. This also includes those individuals who were born
to a parent or parents who had ``voluntarily'' evacuated from his or
her original place of residence in the prohibited military zones on the
West Coast, on or after March 2, 1942, pursuant to paragraph (b)(3) of
this section, and who were excluded by Executive Order 9066 or military
proclamations issued under its authority, from their parent's or
parents' original place of residence in the prohibited military zones
on the West Coast.
* * * * *
Dated: April 14, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-10498 Filed 4-23-97; 8:45 am]
BILLING CODE 4410-13-M
