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

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