Redress Provisions for Persons of Japanese Ancestry

DEPARTMENT OF JUSTICE

28 CFR Part 74

[Order No. 2017-96]

Redress Provisions for Persons of Japanese Ancestry

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: The Department of Justice hereby proposes 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 to make eligible for payments of $20,000 those persons who

were born after their parents ``voluntarily'' evacuated from the

prohibited military zones of the West Coast of the United States 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 during the

defined war period and

[[Page 17668]]

whose parents had resided in 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 could not legally return to their

parents' original place of residence within the prohibited military

zones on the West Coast.

DATES: Comments must be submitted on or before June 6, 1996.

ADDRESSES: Comments may be mailed to the Office of Redress

Administration, P.O. Box 66260, Washington, DC 20035-6260.

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, DC 20035-6260; (202) 219-6900 (voice) or (202) 219-4710

(TDD). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION:

I. Background

The Civil Liberties Act of 1988, Pub. L. No. 100-383 (codified at

50 U.S.C. app. 1989 et. seq., as amended) (``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 (1980). This bipartisan commission was established: (1) To review

the facts and circumstances surrounding Executive Order 9066, issued

February 19, 1942, 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 February

1983 a unanimous report, Personal Justice Denied, which extensively

reviewed the history and circumstances of the decisions to exclude,

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 Civil

Liberties Act of 1988 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.

The ORA is charged with identifying and locating persons eligible

under the Act. To date, restitution has been paid to a total of 79,832

Japanese-Americans and permanent resident aliens of Japanese ancestry.

In the preamble of the final regulation, the Civil Rights Division

stated that ``while 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 Fed. Reg. 34160 (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. In all, approximately 900 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 2, 1945, the effective

date of Proclamation No. 21, which rescinded the prohibited military

zones on the West Coast and lifted the general 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 Ishida v. United States, 31 Fed. Cl. 280 (1994); Tanihara

v. United States, 32 Fed. Cl. 805 (1995). However, the United States

Court of Appeals for the Federal Circuit recently 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.

U.S., No. 94-5150 (Fed. Cir., July 10, 1995) (unpubl.).

II. Revised Interpretation

In order to conform to these recent decisions, the Civil Rights

Division proposes to revise its interpretation regarding the

eligibility for redress of persons who either were born after their

parents ``voluntarily'' evacuated from the prohibited military zones on

the West Coast or who were born after a parent had been evacuated from

the prohibited military zones on the West Coast and interned.

Specifically, the regulation would reverse the Civil Rights Division's

current policy of denying redress to such persons who were prevented 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 from California in March

1942. His claim of deprivation 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.

However, as mentioned above, 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 evacuated

from California in March 1942, was also eligible to receive redress

under the Act.

The Civil Rights Division proposes that it be guided by certain

principles in applying the modified standard discussed above. First,

the Civil Rights

[[Page 17669]]

Division proposes to apply the standard 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 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 Federal Government actions, the Civil Rights

Division proposes to 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 Civil Rights Division proposes to limit eligibility

under this policy to claimants born prior to January 3, 1945, the

effective date of Proclamation No. 21 (midnight on January 2, 1945).

Proclamation No. 21 lifted the general restrictions that had prevented

persons of Japanese ancestry from returning to their original places of

residence in the prohibited military zones on the West Coast.

Accordingly, persons born on or after January 3, 1945, 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 on which

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 the

proclamation might not have been fully implemented or fully publicized

at the time of its issuance, ORA will not use the earlier date of

issuance but will use the effective date of Proclamation No. 21.

Third, the West Coast is defined as those geographic areas in the

State of California, the western portions of Washington and Oregon, and

the southern portion of Arizona, where persons of Japanese ancestry

were initially required to reside and later barred from entering,

pursuant to several 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, dated June 8, 1942, and excluded from the

California portion of Military Area No. 2 pursuant to Proclamation No.

11, dated August 18, 1942.

III. Regulatory Impact Analysis

The Attorney General has determined that this proposed rule is not

a significant regulatory action under Executive Order No. 12866, and

accordingly this proposed rule has not been reviewed by the Office of

Management and Budget.

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 proposed to be amended by revising

part 74 to read 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, section 74.3 is amended by adding paragraph (b)(9)

to read as follows:

Subpart B--Standards of Eligibility

Sec. 74.3 Eligibility determinations.

(a) * * *

(b) * * *

(9) Individuals born after a parent had been evacuated, relocated,

or interned pursuant to paragraph (a)(4) of this section, and whose

parent's or parents' original place of residence was in the prohibited

military zones on the West Coast on or after March 2, 1942, and who

could not legally return to their parent's or parents' original place

of residence in the prohibited military zones on the West Coast prior

to January 3, 1945. This also includes those individuals who were born

after a parent had ``voluntarily'' evacuated pursuant to paragraph

(b)(3), and whose parent's or parents' original place of residence was

in the prohibited military zones on the West Coast immediately prior to

their evacuation, and who could not legally return to their parent's or

parents' original place of residence in the prohibited military zones

on the West Coast prior to January 3, 1945.

* * * * *

Dated: April 9, 1996.

Janet Reno,

Attorney General.

[FR Doc. 96-9505 Filed 4-19-96; 8:45 am]

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