OPINIONS

OF

HON. ROBERT H. JACKSON, OF NEW YORK

APPOINTED JANUARY 18, 1940

CITIZENSHIP-EXPATRIATION

A woman born in Germany acquired American citizenship through marriage to an American citizen who thereafter was naturalized as a German citizen. She continued all her life to reside in Germany and to claim and exercise the privileges of its citizenship. Held: She should not be granted an American passport to enable her to come to the United States.

The statutory methods of expatriation are not necessarily exclusive.

The SECRETARY OF STATE.

JANUARY 25, 1940.

MY DEAR MR. SECRETARY: Reference is made to your request of October 19 for my opinion as to whether the State Department may grant a passport to Mrs. A as a citizen of the United States to enable her to come to the United States from Germany, or whether she will be obliged to obtain an immigration visa as an alien.

From the documents submitted by you it appears that Mrs. A, a German citizen born in Germany in 1872, acquired American citizenship by virtue of her marriage in 1894 to a native-born American citizen. In 1924 her husband became naturalized as a German citizen, she being included in her husband's certificate and acquiring German citizenship by virtue of his naturalization. She states that while she did not herself apply for German citizenship at the time her husband was naturalized, she has since then "held myself out as a German citizen." It is not stated whether at the time Mrs. A was married in 1894 she relinquished or lost her German citizenship, but if she did, she reacquired it in

1924 when her husband became a German citizen by naturalization. Mrs. A has never lived in the United States, and is now asserting her American citizenship for the first time by applying for a passport to travel to the United States. She desires to come to the United States because of the present conditions in Germany, where she has lived since her birth 67 years ago.

Expatriation, or the voluntary renunciation or abandonment of nationality and allegiance, is a "natural and inherent right of all people." Perkins v. Elg, 307 U. S. 325, 334; R. S., sec. 1999. This right may be exercised by any citizen. There must be, however, an intent on the part of the person to renounce citizenship, or the performance of some act which shows presumptive intent. 30 Op. A. G. 412, 421. The statutes provide several different ways in which expatriation may be effected, but it does not necessarily follow that the methods thus prescribed are exclusive (United States v. Marshall, 34 F. (2d) 219), although the contrary view is expressed in Leong Kwai Yin v. United States, 31 F. (2d) 738.

Mrs. A's American citizenship was acquired by naturalization, by virtue of her marriage to an American citizen. A presumption of expatriation arises under section 2 of the act of March 2, 1907 (34 Stat. 1228; U. S. C., title 8, sec. 17), when a naturalized citizen has resided for 2 years in the foreign state from which he came or for 5 years in any other foreign state. Different views have been expressed on the question whether this presumption relates to the loss of right of diplomatic protection as a citizen or to the loss of citizenship itself. Miller v. Sinjen, 289 Fed. 388; Camardo v. Tillinghast, 29 F. (2d) 527; 28 Op. A. G. 504; 35 Op. A. G. 399. Moreover, the presumption of expatriation arising under the statute may be overcome upon the presentation to State Department officials of satisfactory evidence showing that the naturalized citizen has made definite arrangements to return immediately to the United States to reside permanently. Thus, assuming that Mrs. A intends to come to the United States to reside permanently, the statute appears to be inapplicable.

The naturalization of Mrs. A's husband as a German citizen did not necessarily deprive her of American citizenship, since section 3 of the act of September 22, 1922, 42 Stat. 1021, 1022, as amended (U. S. C., title 8, sec. 9), provides that "a woman citizen of the United States shall not cease to be a citizen of the United States by reason of her marriage after the passage of this act, unless she makes a formal renunciation of her citizenship before a court having jurisdiction over naturalization of aliens," 37 Op. A. G. 206; and it does not appear that Mrs. A made such formal renunciation. It also does not appear whether she has taken an oath of allegiance to any foreign state, thus depriving herself of American citizenship under section 2 of the Expatriation Act of March 2, 1907, supra.

It does appear, however, that with her knowledge Mrs. A was included in her husband's certificate of naturalization as a German citizen, and that since that time she has voluntarily accepted German citizenship, and held herself "out as a German citizen." Being possessed of dual nationality, American and German, she seems to have elected to claim and exercise the privileges of German citizenship. Apparently she has never claimed or exercised the privileges of American citizenship. Such conduct is inconsistent with a claim of American citizenship. It seems not to have been mere acquiescence in the status conferred upon her by German law but rather affirmative voluntary action upon her part evidencing a renunciation or termination of her allegiance to the United States. This view is strengthened by the fact that Mrs. A has never lived in the United States, and prior to her recent application for a passport has never shown any purpose or intent to come to the United States or to accept American citizenship. It is not to be assumed, I think, that the Congress has ever intended, in circumstances such as these, to impose American citizenship upon a national of another country who for many years has manifested no purpose to accept it, but on the contrary, has continued all her life to reside in the country of her birth and to claim and exercise the privileges of its citizenship.

Accordingly, I concur in the conclusion of your Legal Adviser that Mrs. A's application for a passport as an American citizen should be denied. Such action will not preclude her from obtaining an adjudication of the question by the courts. Respectfully,

ROBERT H. JACKSON.

TRADE WITH THE INDIANS

An employee of the Indian Service is not authorized to accept employment after hours as salaried manager of a community store financed by the incorporated Native Village of Atka.

There appears to be no justification for a narrow construction that would make the statute concerning trade with the Indians inapplicable to Government employees engaging in such trade as salaried agents or as agents for an Indian principal.

The SECRETARY OF THE INTERIOR.

FEBRUARY 15, 1940.

MY DEAR MR. SECRETARY: In your letter of January 27 you requested my opinion whether the law will permit Mr. William E. Thomas, an employee of the Indian Service at Atka, Alaska, to accept employment after hours as salaried manager of a community store financed by the incorporated Native Village of Atka.

The statutes of possible application are included in the United States Code as sections 68 and 87 of title 25 and read in pertinent part as follows:

"S 68. Employees not to trade with Indians. No person employed in Indian affairs shall have any interest or concern in any trade with the Indians, except for, and on account of, the United States; and any person offending herein shall be liable to a penalty of $5,000, and shall be removed from his office."

"S 87. Interest of agents and employees in Indian contracts. No agent or employee of the United States Government or of any of the departments thereof, while in the service of the Government, shall have any interest, directly or indirectly, contingent or absolute, near or remote, in any contract made, or under negotiation, with the Government or with the Indians, for the purchase or transportation or delivery of goods

*

The violation of any

or supplies for the Indians * of the provisions of this section shall be a misdemeanor, and shall be punished by a fine of not less than $500 nor more than $5,000, and by removal from office; and, in addition thereto, the court shall, in its discretion, have the power to punish by imprisonment of not more than six months."

As manager of the store Mr. Thomas presumably would buy goods at wholesale and sell them to the Indians. This, of course, is "trade with the Indians" and the statute, broadly, forbids employees of the Indian Service to engage in such trade. There appears to be no justification for a narrow construction that would make the statute inapplicable to Government employees engaging in the forbidden trade as salaried agents or as agents for an Indian principal. As pointed out in the Attorney General's opinion to you of July 12, 1937, citing United States v. Douglas, 190 Fed. 482, 488, and other cases, "these statutes have been broadly construed to prohibit Government employees from in any way being connected with or concerned in 'trade in articles bought for, supplied to, or received from the Indians' " (39 Op. 82).

It is therefore my opinion that the law will not permit Mr. Thomas to accept the proffered employment.

Respectfully,

ROBERT H. JACKSON.

APPOINTMENT OF REFEREES TO SIT WITH THE NATIONAL RAILROAD ADJUSTMENT BOARD

Every case filed with the National Railroad Adjustment Board involves a question of jurisdiction and the Board must decide these jurisdictional questions, subject to review by the courts.

The first division of the Board being equally divided whether to assume jurisdiction over labor disputes involving such matters, it is the duty of the National Mediation Board (upon proper request and certification of the facts) to select and name a referee to sit with the first division as provided in sec. 3 of the Railway Labor Act.

The PRESIDENT.

FEBRUARY 19, 1940.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request of January 26 for my opinion whether it is the duty of the National Mediation Board to appoint a