Asian American Litigants in United States History

Asian American Litigants in United States History

NAPABA CRC

September 23, 2016

Speakers: Albert Lin Ice Miller LLP 250 West Street Columbus, Ohio 43215 [email protected]

Christl P. Glier Ice Miller LLP One American Square, Suite 2900 Indianapolis, IN 46282 [email protected]

I. Introduction II. Supreme Court Cases

a. Chew Heong v. United States i. 112 U.S. 536 (1884)

b. Yick Wo v. Hopkins i. 118 U.S. 356 (1886)

c. United States v. Wong Kim Ark i. 169 U.S. 649 (1898)

d. Ozawa v. United States i. 260 U.S. 178 (1922)

e. United States v. Singh i. 261 U.S. 204 (1923)

f. Hirabayashi v. United States i. 320 U.S. 81 (1943)

g. Korematsu v. United States i. 323 U.S. 214 (1944)

h. Oyama v. California i. 332 U.S. 633 (1948)

i. Nichols v. Lau i. 441 U.S. 563 (1974)

III. Conclusion

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Asian American Litigants in United States History

Albert Lin Ice Miller LLP

250 West Street Columbus, Ohio 43215 [email protected]

Christl P. Glier Ice Miller LLP

One American Square, Suite 2900 Indianapolis, IN 46282

[email protected]

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Introduction AAPI Heritage Month Supreme Court Cases

Chew Heong v. United States, 112 U.S. 536 (1884)

Yick Wo v. Hopkins, 118 U.S. 356 (1886)

United States v. Wong Kim Ark, 169 U.S. 649 (1898)

Ozawa v. United States, 260 U.S. 178 (1922)

United States v. Singh, 261 U.S. 204 (1923)

Hirabayashi v. United States, 320 U.S. 81 (1943)

Korematsu v. United States, 323 U.S. 214 (1944)

Oyama v. California, 332 U.S. 633 (1948)

Nichols v. Lau, 441 U.S. 563 (1974)

Conclusion

Agenda

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• Public Law 102-450 (Oct. 23, 1992)

• Important dates in May

• May 7, 1843: First Japanese immigrants to U.S.

• May 10, 1869: Golden Spike Day: Completion of the Transcontinental Railroad

• AAPI have “contributed significantly to the development of the arts, sciences, government, military, commerce, and education in the United States”

AAPI Heritage Month

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• “Peoples of diverse backgrounds and circumstances have long come to our country with the faith that they could build a better life in America … the story of AAPIs in the United States embodies this promise.”

• During AAPI Heritage Month “let us celebrate the contributions our AAPI brothers and sisters have made to the American mosaic … adding their unique voices and experiences to our Nation’s narrative.”

• Pres. Obama (April 29, 2016)

AAPI Heritage Month

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• AAPIs have a long history in pursuing claims in the U.S. Supreme Court

• Fought to protect their individual claims

• In some cases, these litigants established critical civil rights for all Americans

• During AAPI Heritage Month, appropriate to remember their contributions to public good

AAPI Supreme Court Litigation

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Chew Heong v. United States: Historical Context

• Chinese immigration into the US begins in the 1860s

• Mostly male immigrants came to build railroads and as part of the Gold Rush

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Chew Heong v. United States: Historical Context

• The influx led to many anti-immigrant laws • Chinese Exclusion Act • Prevented

naturalization of Chinese migrants; limited immigration

• Chinese in California could only get jobs in own business, like laundries

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• Chinese Exclusion Act of 1884 required Chinese laborers living in U.S. to obtain re-entry certificates in order to return after travel abroad

• Chew Heong left U.S. before this provision of Chinese Exclusion Act was implemented

• When he returned to the U.S., he did not have a re-entry certificate

Chew Heong v. United States

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• Re-entry certificate was shortcut to prove residency, as Chinese laborers were crowding the courts • “What shall the courts do with the [Chinese

laborers]? Can it give each one of them a separate trial? Can it let each of them produce evidence of former residence?”

• “Congress never supposed that Chinamen intended to go back to China and stay several years. If they do not come back at once they should not be allowed to come at all.”

• J. Field


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• Chew Heong argued Chinese Exclusion Act did not apply to him because treaty in place at time of his departure gave him right to re-enter U.S.

• Majority agreed, holding that Act did not apply retroactively • Chew Heong not required to present a certificate that

did not exist under then applicable laws and treaties • Justice Field dissented

• “Chinese cannot assimilate with our people” • “vast hordes would pour in upon us, overrunning our

coast and controlling its institutions”


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• Chew Heong impact

• Opened door for re-entry of thousands of Chinese laborers

• 7,000 petitions of habeas corpus

• But led to eventual passage of more stringent Exclusion Act of 1888 which prevented any re-entry


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Yick Wo v. Hopkins (1886)

• San Francisco had the greatest concentration of Chinese immigrants

• It passed strict laws on opening laundries

• No laundry in a wooden building without a permit

• 95% of laundries operated in wooden buildings

• Two-thirds of those laundries were owned by Chinese immigrants

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• The San Francisco law gave the Board of Supervisors the discretion to grant laundry permits

• The board rarely granted laundry permits to Chinese immigrants

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• Yick Wo lived in San Francisco and sought a laundry permit to operate his family laundry

• The Board of Supervisors denied Yick Wo a permit

• Convicted of misdemeanor for operating laundry without a permit

• Yick Wo sued San Francisco

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• Yick Wo lost in the lower courts and appealed to the U.S. Supreme Court

• The Supreme Court held that the San Francisco law was facially neutral

• But, that San Francisco could not apply the laundry law in a discriminatory fashion

• Based on 14th Am. Equal Protection Clause

• No state shall deny to any person within its jurisdiction the equal protection of the laws.

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• “No reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on … their harmless and useful occupation, on which they depend for a livelihood.” • “This consent of the supervisors is withheld … from two hundred others

who have also petitioned, all of whom happen to be Chinese subjects.” • “Eighty others, not Chinese subjects, are permitted to carry on the same

business under similar conditions.”

• “The fact of this discrimination is admitted … . The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws … .”

• J. Matthews


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• Yick Wo impact

• One of the most frequently cited U.S. cases (cited roughly 3,000 times)

• Basis to strike down state laws in the 1950’s and 1960’s limiting political rights of African- Americans

• Laid the foundation for disparate impact cases under modern employment law

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United States v. Wong Kim Ark (1898) • Wong Kim Ark was born in San Francisco Chinatown

to Chinese parents who were not citizens.

• Did not speak English

• Dressed in foreign clothes

• Looked like a “subject of the Emperor of China"

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United States v. Wong Kim Ark (1898)

• Wong Kim Ark visited China in 1894 and returned in 1895.

• Detained at customs when he returned

• Denied entry under the Chinese Exclusion Act

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United States v. Wong Kim Ark (1898) • U.S. argued that Wong Kim Ark was not a citizen,

despite his birth in San Francisco

• Child of alien parents

• Parents not citizens because of the Chinese Exclusion Act

• Case went to the Supreme Court

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United States v. Wong Kim Ark (1898) • The Supreme Court held that Wong Kim Ark was

a citizen

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• Under English common law citizenship is a birthright for children born within the boundaries of the sovereign

• The Constitution reiterates this in the Citizenship Clause

• “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States … .” 14th Am. Sec. 1.

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• Acts excluding citizenship to Chinese, or other immigrants, do not supersede the constitution

• “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”


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• Wong Kim Ark Impact

• Widespread application today

• Some movement to repeal birthright citizenship within the U.S.

• Proposed legislation would likely be unconstitutional under Wong Kim Ark

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• Takao Ozawa was a Japanese citizen, born in Japan, but had lived in the U.S. for 20 years

• His application for U.S. citizenship was denied, and he appealed

• Naturalization Act of 1906 provided rules for naturalization

• Court said Naturalization Act did not repeal statute limiting naturalization to “free white persons”

Ozawa v. United States (1922)

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• Ozawa did not argue the constitutionality of race restrictions; he argued that “free white person” included Japanese

• Court held that “white person” synonymous with “a person of the Caucasian race” and that does not include Japanese

• Despite long residence, U.S. education, and U.S. family, Ozawa was not eligible for naturalization

Ozawa v. United States (1922)

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• Bhagat Singh Thind was born in India and obtained U.S. citizenship

• U.S. sought to cancel Singh’s citizenship because he was not “a white person” and thus, not eligible for naturalization

United States v. Singh (1923)

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• Court held that all Asiatic races, including “the whole of India” were excluded from admission

• “the physical group of characteristics of the Hindus render them readily distinguishable from the various groups of persons in this country commonly recognized as white”

• Ultimately received citizenship through state of New York in 1936

United States v. Singh (1923)

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• Ozawa and Singh impact

• Government can discriminate based on national origin for the purposes of immigration

• Decisions lead to an eventual change of the quota system for immigration purposes

Singh & Ozawa

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• Hirabayashi was U.S. citizen (born in Seattle) of Japanese ancestry

• Executive Orders excluded all persons of Japanese ancestry from “military areas” and required them to be in their residence between 8:00 PM and 6:00 AM

• Hirabayashi violated both orders, was convicted on both counts, and was sentenced to 3 months imprisonment for each count to run concurrently

• Hirabayashi argued the exclusion/relocation and curfew orders were unconstitutional

Hirabayashi v. United States (1943)

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• Court held that the curfew order was constitutional as “an obvious protection against the perpetration of sabotage most readily committed during the hours of darkness”

• Court did not review the other conviction because the sentences ran concurrently and the curfew conviction was sufficient to sustain the sentence

• Hirabayashi’s convictions were vacated in 1986 and 1987

• He was posthumously awarded the Presidential Medal of Freedom in 2012

Hirabayashi v. United States (1943)

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Korematsu v. United States (1944)

• Fred Korematsu refused to move to the internment camp

• He was arrested and convicted

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Korematsu v. United States: Historical Context

• During World War II, President Roosevelt authorized Executive Order 9066

• This Order authorized military commanders to exclude all people of Japanese ancestry from military zones

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Korematsu v. United States: Historical Context

• These military zones included the entire West Coast of the United States

• Japanese-Americans relocated to camps further inland

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• Korematsu appeals up to the Supreme Court

• Justice Black wrote the 6-3 opinion

• Justice Frankfurter wrote a separate opinion • Paid great deference to the power of Congress

and the President during wartime

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• Justice Murphy dissent

• “Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.” • The first use of “racism” in a Supreme Court

Opinion

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• Korematsu v. United States is one of the only instances where strict scrutiny has been satisfied

• Requires a compelling governmental interests, that is narrowly tailored, and uses the least restrictive means

• Never overturned or overruled

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• Korematsu Impact

• Largely repudiated

• Laws passed to pay reparations to internees in 1988, 1992, for a total of $1.6 billion

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• Korematsu became widely respected U.S. civil rights leader

• Awarded Presidential Medal of Freedom in 1998

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• California Alien Land Law of 1913 prohibited aliens ineligible for U.S. Citizenship from acquiring, owning, leasing, or transferring land

• California Alien Land Law of 1920 included provision that if land was purchased in another person’s name, it was presumed it was done to circumvent the law – major shift in burden of proof

• In 1934, Fred Oyama’s father purchased two parcels of land in Fred’s name when he was a minor and was appointed guardian

Oyama v. California (1948)

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• In 1942, Fred and his family were forced to relocate from California as persons of Japanese descent

• California claimed ownership reverted to the state because Fred’s father attempted to evade the land laws

• Court held that the land laws deprived Fred of equal protection, as he would be the undisputed owner of the land but for his father being Japanese


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• J. Black concurrence • “If there is any one purpose of the 14th AM that is wholly outside the

realm of doubt, it is that the 14th AM was designed to bar States from denying to some groups, on account of their race or color, any rights, privileges, and opportunities … .

• J. Murphy concurrence • “[The Act] rests upon an unreal racial foundation. It assumes that there

is some racial characteristic, common to all Japanese aliens, that makes them unfit to own or use agricultural land in California. There is no such characteristic.”

• “[Such Acts] merely represent social and economic antagonisms which have been translated into false racial terms. As such, they cannot form the rationalization necessary to conform the statute to the EPC.”


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• Oyama Impact

• California holds alien land laws unconstitutional, and they were ultimately repealed in 1956

• Reasoning of Oyama sets the stage for subsequent civil rights cases seeking to limit application of certain rights to specific groups

• Romer v. Evans, 517 U.S. 620 (1996)


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• San Francisco school system was integrated by court order in 1971

• 2,856 students of Chinese ancestry who do not speak English

• 1,000 such students were given supplemental courses in English; the rest were not

Lau v. Nichols (1974)

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• Under Civil Rights Act of 1964, schools receiving federal funding cannot discriminate based on race, color, or national origin

• Failing to provide students an adequate education because they speak foreign language was tantamount to national origin discrimination


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• Lau v. Nichols impact • Equal Educational Opportunities Act

• Requires school districts to overcome language barriers that impedes students from participating equally in public educational programs

• Real world impact in that public school district are required to provide language support services • Foreign language services • English as a second language • Other instruction


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Questions?

THANK YOU!

Conclusion

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Asian American Litigants in United States History

Documents

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