97-10498. Redress Provisions for Persons of Japanese Ancestry: Guidelines Under Ishida v. United States  

  • [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
    
    
    

Document Information

Effective Date:
5/27/1997
Published:
04/24/1997
Department:
Justice Department
Entry Type:
Rule
Action:
Final rule.
Document Number:
97-10498
Dates:
May 27, 1997.
Pages:
19928-19934 (7 pages)
Docket Numbers:
Order No. 2077-97
PDF File:
97-10498.pdf
CFR: (1)
28 CFR 74.3