The opinion of the court was delivered by: KNIGHT
Petitioner was taken into custody by the Immigration and Naturalization Service pursuant to a warrant directing her deportation to Canada on the ground that she was not in possession of an immigration visa and passport and that she entered by false and misleading statements, thereby entering without inspection. A writ of habeas corpus was then issued by this court upon a petition by the petitioner, who claimed that she was being illegally detained.
Petitioner is a full-blooded North American Indian, born on the Six Nations Reservation, Brantford, Ontario, Canada, on May 28, 1918. She claims to be a member of the Upper Cayuga Tribe of the Six Nations Indians in Canada. On November 21, 1934, she married a native citizen of Canada of the white race. The warrant of deportation is dated July 13, 1946.
Section 226a of Chapter 6, Immigration, of Title 8 of U.S.C.A., which deals with Aliens and Nationality, provides as follows: 'Sec. 226a. American Indians born in Canada; right to cross Canadian border. This chapter shall not be construed to apply to the right of American Indians born in Canda to pass the borders of the United States: Provided, That this right shall not extend to persons whose membership in Indian tribes or families is created by adoption.' This section became effective April 2, 1928.
Respondent urges that it does not apply to Indians who are not members of a tribe and claims that petitioner is tribeless because of section 14 of the Indian Act of Canada, Ch. 98, Rev. Stat. of Canada, 1927, which reads: '14. Any Indian woman who marries any person other than an Indian, or a non-treaty Indian, shall cease to be an Indian within the meaning of this Act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semi-annual distribution of their annuities, interest moneys and rents; but such income may be commuted to her at any time at ten years' purchase, with the approval of the Superintendent General. 1920 C. 50, S. 2.'
The term 'Indian' is not defined in Title 8 of U.S.C.A. or in Chapter 6 dealing with Immigration. Is it to be given a political connotation, as urged by respondent, or a racial connotation, as urged by petitioner?
In 42 C.J.S.,Indians, § 1 it is said: "Indians' is the name given by the European discoverers of America to its aboriginal inhabitants. When used in a statute without any other limitation, the term has been said to include members of the aboriginal race, whether now sustaining tribal relations or otherwise.' The only authority cited for this statement is Frazee v. Spokane County, 29 Wash. 278, 69 P. 779.
In Mosier v. United States, 8 Cir., 198 F. 54 certiorari denied 229 U.S. 619, 33 S. Ct. 778, 57 L. Ed. 1354, a case involving a violation of the Act of June 28, 1906, 34 Stat. 539, prohibiting the giving of liquor to Osage Indians of Oklahoma, the court said: 'The word 'Indian' describes a person of Indian blood. The word 'citizen' describes a political status. If as a matter of law and fact the government is exercising guardianship over an Indian who is also a citizen, it is not for the courts to say when the guardianship shall cease.' 198 F.at page 57.
In other Federal Statutes, the term 'Indian' connotes 'blood'.
Section 479 of Title 25 of U.S.C.A., dealing with Indians, provides as follows: 'Sec. 479. Definitions. The term 'Indian' as used in sections 461, 462, 463, 464-473, 474, 475, 476-478, and 479 of this title shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of said sections, Eskimos and other aboriginal peoples of Alaska shall be considered Indians. The term 'tribe' wherever used in said sections shall be construed to refer to any Indian tribe, organized band, pueblo, or the Indians residing on one reservation. * * * .'
This section became effective June 18, 1934.
Section 206 of Title 48 of U.S.C.A., dealing with Territories and Insular Possessions, contains definitions among which are these:
'Indians: Natives of one-half or more Indian blood.
'Eskimo: Natives of one-half or more Eskimo blood.'
The criterion of 'blood' is applied in Section 212c of 8 U.S.C.A., in defining the terms 'persons of races indigenous ...