(40 Sup.Ct.)

Mr. Justice CLARKE delivered the opinion of the Court.

In January, 1915, Kwock Jan Fat, the petitioner, intending to leave the United States on a temporary visit to China, filed with the Commissioner of Immigration for the Port of San Francisco an appication, as provided for by law, for a "preinvestigation of his claimed status as an American citizen by birth."

He claimed that he was 18 years of age, was born at Monterey, Cal., was the son of Kwock Tuck Lee, then deceased, who was born in America of Chinese parents and had resided at Monterey for many years; that his mother at the time was living at Monterey; and that there were five children in the family-three girls and two boys.

The Department of Immigration made an elaborate investigation of the case presented by this application, taking the testimony of the petitioner, of his mother, of his brother and one sister and of three white men, of whom the inspector said in his report:

A general demurrer to this petition was sustained by the District Court and on appeal to the Circuit Court of Appeals that judg ment was affirmed. The case is here on writ of certiorari.

[1] With the petition were filed all of the testimony and papers pertaining to the proceedings prior to the appeal to the Secretary of Labor, and since it is prayed that when the copy of the proceedings thereafter had shall become available they may be made a part of the petition, it was proper for the courts below and is proper for this court to interpret the allegations of the petition, giving due effect to the immigration records filed and *with this evidence in his possession, with the petition and with respondent's rewhich he was amply justitied in believing | turn. Low Wah Suey v. Backus, 225 U. S. would secure his readmission into the United | 460, 469, 472, 32 Sup. Ct. 734, 56 L. Ed. 1165. States when he returned, he went to China.

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It is not disputed that if petitioner is the son of Kwock Tuck Lee and his wife, Tom Ying Shee, he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U. S. 649, 18 Sup. Ct. 456, 42 L. Ed. 890. But while it is conceded that he is certainly the same person who, upon full investigation was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909, as a son of a Chinese merchant, Lew Wing Tong, of Oakland, Cal.

[2] It is fully settled that the decision by the Secretary of Labor, of such a question as we have here, is final, and conclusive upon the courts, unless it be shown that the proceedings were "manifestly unfair," were *458 "such as to pre*vent a fair investigation," or show "manifest abuse” of the discretion committed to the executive officers by the statute, Low Wah Suey v. Backus, supra, or that "their authority was not fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law," Tang Tun v. Edsell, Chinese Inspector, 223 U. S. 673, 681, 682,

"The three white witnesses are representative men of this town and would have no motive in misstating the facts."

As a result of this inquiry, the original of his application, approved, signed and sealed by the Commissioner of Immigration at San Francisco, was delivered to the petitioner,

The record shows that during his absence anonymous information reached the San Francisco Immigration Office (in which there had been a change of officials) to the effect that petitioner's name was not Kwock Jan Fat, as claimed, but was Leu Suey Chong and that he had entered the United States in 1909 as the minor son of a merchant, Lew Wing Tong, of Oakland, Cal. Thereupon an investigation was conducted, chiefly by the comparison of photographs, for the purpose of determining the truthfulness of this anonymous suggestion, with the result that when the petitioner returned to San Francisco he was not allowed to land, and a few days thereafter was definitely denied entry to the country by the Commissioner of Immigration. nereafter, this decision of the Commissioner was reconsidered, the case reopened and testimony for and against the petitioner was taken, but the Commissioner adhered to his denial of admission. The only reason given for the decision was "the claimed American citizenship is not established to my satisfaction."

Thereupon an appeal was taken to the Secretary of Labor, who approved the order appealed from.

(1) That the examining inspector reported to the Commissioner of Immigration as evidence, statements purporting to have been obtained from witnesses under promise that their names would not be disclosed, and that when demand was made for the names of such witnesses for purpose of reply, it was refused, with the result that petitioner did not have a fair hearing.

(2) That the examining inspector did not

Promptly thereafter the petition for a writ of habeas corpus in this case was filed, which is based chiefly upon two claims, viz.:

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record an *important part of the testimony of three white witnesses called by petitioner, with the result that it was not before the Commissioner of Immigration or the Secretary of Labor when they decided adversely to him, and thereby he was arbitrarily denied a fair hearing.

32 Sup. Ct. 359, 363 (56 L. Ed. 606). The deci- statement of the Acting Commissioner that sion must be after a hearing in good faith, | the inspector's report objected to was not alhowever summary, Chin Yow V. United lowed to influence his decision, we might not States, 208 U. S. 8, 12, 28 Sup. Ct. 201, 52 L. say that the taking and reporting of the Ed. 369, and it must find adequate support in testimony objected to of witnesses whose the evidence, Zakonaite v. Wolf, 226 U. S. names are not disclosed, rendered the hear272, 274, 33 Sup. Ct. 31, 57 L. Ed. 218. ing so manifestly unfair as to require re

As to the first ground of complaint in the versal, if there were nothing else objectionpetition for habeas corpus. able in the record.

After the final decision by the Commissioner of Immigration adverse to petitioner, his counsel requested an opportunity to examine the record on which it was rendered. This request was granted, and promptly, thereafter, demand was made for permission to see the testimony referred to, but not reported, in a designated report of Inspector Wilkinson. Assistant Commissioner Boyce answered this request saying:

"The portion of Inspector Wilkinson's report which was withheld from you contained no evidence whatsoever and nothing material to the issue in this case. As a matter of fact this inspector's report in no way influenced my decision and was useful only in locating other material witnesses, whose testimony appears in the record."

This report appears in the record before us and is of a remarkable character. It is dated August 8th and after saying that "only upon the assurance that the identity of the witness would be kept secret" could the information contained in it be obtained, the writer proceeds with much detail to narrate what, if believed, would be evidence of first importance making against the claim of petitioner. The report continues that after his

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first visit the inspector *returned to Monterey

and learned from his confidential witness

that in the interval he had inquired of "an old Chinese resident," who said that, "Tuck Lee had no son," and adds, "I was unable to ascertain the name of this Chinese person."

On the margin of this letter is written August 8, 1917: "Approved. Edward White" (the Immigration Commissioner).

In this manner, with much detail, state ments of a person who must remain unknown, and in part derived from another person who must remain unknown, were com: municated by the investigating inspector to his superior, who was to dispose of the case on the evidence which was furnished him, and he, in form at least, approved of this report. This approval is explained by the Acting Commissioner as referring to the recommendation contained in it that further investigation should be made, and there is confirmation of this explanation in the fact that the record shows that immediately thereafter evidence of the character suggested in the report was taken in affidavits which were open to the inspection of the petitioner. While we would not give the weight to these affidavits which the Commissioner of Immigration and the Secretary of Labor seem to have given to them, nevertheless, when taken with the

There remains the question whether the hearing accorded to the petitioner was unfair and inconsistent with the fundamental principles of justice embraced within the conception of due process of law because an inspector failed to record in its proper place an

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important part of the testimony of three white witnesses called by the petitioner.

A discussion of what the record shows and of the character of the witnesses involved Will be necessary to an appreciation of the importance, in determining the issue presented, of having a full report of what was said. and done by these three witnesses.

When the petitioner, before going to China, applied for a preinvestigation of his claimed status as an American citizen, three white witnesses from Monterey were called in his behalf-two of whom were notable.

Ernest Michaelis, for 26 years a justice of the peace and for many years the official collector of fish licenses, testified, making reference, for purpose of identification, to a photograph of the petitioner. He said he had known the parents of the boy since shortly after he himself went to live at Monterey in 1879; that there were two boys and three girls in the family; that he had seen the petitioner frequently as a little fellow when he went to collect fish licenses (the boy's father was a fisherman); and had known him ever since; and, referring to the photograph, he declared positively that he was sure of his identity and that he was born in Monterey. He added that the father of the boy was native born and was a voter in that community.

W. E. Parker testified that he had been

agent for the Wells Fargo Company at Monterey for 25 years, and was also chief of the fire department and city clerk for many years. He said, referring to a photograph of petitioner, that he had known the parents of the boy for many years and the boy himself since he was 5 or 6 years old; that he remembered two boys and at least one girl, but later he stated that he recalled that there were three girls in the family, and his identification of the petitioner by photograph was very definite. He stated that the father of the boy

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was a fisherman and shipped fish fre*quently by express so that he came to know him well and his wife also because she often transacted business for her husband. He recalled that after the fire and earthquake the petitioner was sent to school at San Francisco, but returned to Monterey every few months when he saw him.

(40 Sup.Ct.)

A third witness, Manuel Ortin, a retired | petitioner wrote the Commissioner that Mibusiness man, gave similar testimony, but it is not so definite and circumstantial as that of the others and need not be detailed.

The government inspector to whom the case in this preliminary stage was referred, wrote the Commissioner of Immigration at San Francisco that the testimony of petitioner, of his alleged brother, his mother and three credible white witnesses had been taken; that the petitioner gave his testimony mostly in English, presented a good appearance, and "tells his story in a straightforward manner in a way to convince one that he is telling the truth," and that "the three white witnesses are representative men of this town and would have no motive in misstating the facts." He concluded with the statement that in his mind there was no doubt that the Chinaman named Kwock Tuck Lee (claimed by applicant to be his father) had lived in Pacific Grove (the Chinatown of Monterey), and was a registered voter there; that he was married and had several children and that the testimony seemed to prove that the petitioner was a member of his family. He added that a sister of the boy lived at a given number in Chicago and suggested that her testimony should be taken. This sister's testimony was taken, as recommended, and then the inspector reported to the Commissioner of Immigration that her testimony did not vary in the main from that of the mother or brother of the petitioner; that "the white witnesses, Judge Michaelis, and chief of the fire department and Wells Fargo agent, and retired grocer, Mr. Ortin, are men of standing in this town" and that he had no reason to doubt their testimony. He added that, tak

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ing the testimony as a whole, "he *believed the applicant made a good showing and recommended favorable action." On this record the application was approved and the young man went to China.

chaelis, Pugh, and Ortin had told him that when they were examined at San Francisco they were confronted with the petitioner and that they recognized him, that he recognized them, and that the examining inspector was present and asked a number of questions, which were answered, and calls this to the attention of the Commissioner "as it may have been an oversight on the part of the official stenographer in recording everything said and done at the hearing of the case." On the same date affidavits by Michaelis, Pugh and Ortin were filed, in each of which, after referring to his examination at San Francisco, the affiant says in substance, as Michaelis does in form, that "after being questioned by the inspector the affiant was confronted with Kwock Jan Fat who met him while the inspector was present and that said inspector *heard everything said between affiant and Kwock Jan Fat;" and that affiant then told the inspector that the petitioner was the son of Tuck Lee, that he had known him from infancy, and that he was a native of Monterey.

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To this letter of counsel for petitioner an Acting Commissioner replied, saying:

"With regard to the identification of the applicant by Messrs. Michaelis, Pugh and Ortin, you are advised that these witnesses were confronted with the applicant with the result that said witnesses mutually recognized and identified the applicant as the person whom they had known as Kwock Jan Fat, and the applicant was equally prompt in recognizing said witnesses. While I was advised of this incident and gave it full consideration in arriving at my decision, it was not made of record in connection with the statements taken from the witnesses. A copy of this letter will be placed with the record as evidence to the fact that there was mutual recognition between said witavailable for the consideration of the Secrenesses and the applicant which will thus be tary on appeal."

portant witnesses and their examination in his presence by the inspector was placed before the Secretary of Labor, and apparently there was no record whatever of either before the Commissioner of Immigration when he decided the case.

When the petitioner returned from China This excerpt from the letter of an Acting and the investigation was renewed Michaelis, Commissioner (the decision was rendered by Ortin, and another important white witness, the Commissioner personally) is the only form Pugh, were examined at San Francisco by an in which the facts and circumstances of the inspector. Michaelis and Ortin testified sub-recognition of the petitioner by these imstantially as they had done a year before, and Pugh, also a business man of Monterey, gave similar testimony and definitely identified the petitioner as the son of Kwock Tuck Lee. The examination of these witnesses, by question and answer, was taken down and is in the record, but no reference whatever was made to the fact that the petitioner was brought into their presence to test their recognition of him and his recognition of them, or of any examination in his presence. The testimony was in this form when it was sent to the Commissioner of Immigration for his consideration and decision, and, acting upon it, on September 6, 1917, he denied the petitioner admission to the country. After certainly as dependable as any who were this decision, on September 12th, counsel for called. All they had said with respect to the

[3] Comment cannot add to the impression which this plain statement of facts should make upon every candid mind. Here was testimony being taken which was to become the basis for decision by men who must depend wholly upon the report of what was said and done by the witnesses. The men examined were important, intelligent and very

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Defendant in error brought this action to obtain possession of certain lands, formerly

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(40 Sup.Ct.)

part of the Pottawatomie Indian Reserva- [ the Pottawatomie Reservation-so far as aption and now in Pottawatomie county, Kan., pears, without protest or objection. which lie in the margins of the 400-foot strip claimed by it as legal successor to the original grantee. Counsel for plaintiffs in error well say but one question is presented for our determination:

"Were the lands involved in this action 'public lands' within the meaning of the acts of Congress dated July 1, 1862, and July 2, 1864, granting a right of way to the Leavenworth, Pawnee and Western Railroad Company and its successors."

The cause was tried by the court below upon pleadings and agreed statement of facts; and a memorandum states the reasons for judgment favorable to the railroad.

[1] By the act of July 1, 1862 (12 Stat. 489, c. 120, § 2), Congress granted a right of way "two hundred feet in width on each side of said railroad where it may pass over the public lands" (Stuart v. Union Pacific Railroad Company, 227 U. S. 342, 345, 33 Sup. Ct. 338, 57 L. Ed. 535), and declared:

"The United States shall extinguish as rapidly as may be the Indian titles to all lands falling under the operation of this act and required for the said right of way and grants herein

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after made."

Some amendments added by the act of July 3, 1866 (14 Stat. 79) are not specially important here.

By the treaty of 1846 (article 4) the United States agreed to grant to the Pottawatomie Indians possession and title to a district 30 miles square, on the Kansas river, and to guarantee full and complete possession thereof "as their land and home forever." 9 Stat. 854.

In 1861 the same parties entered into an

*$445

November 14, 1862, the railroad company accepted the act of 1862, and during 1865 and 1866 duly constructed its road through

other treaty *which stipulated (articles 1 and 2) that land within the reservation designated by the treaty of 1846 should be allotted thereafter in severalty to tribal members who had acquired customs of the whites, and desired separate tracts; that the United States' agent should take an accurate census showing those desiring to hold in severalty and those desiring to hold in common, and "thereupon there shall be assigned, under the

direction of the Commissioner of Indian

Affairs," specified amounts of land "to include, in every case, as far as practicable, to each family their improvements and a reasonable portion of timber, to be selected according to the legal subdivision of survey." "When such assignments shall have been completed, certificates shall be issued by the Commissioner of Indian Affairs for the tracts assigned in severalty, specifying the names of the individuals to whom they have been assigned, respectively, and that said tracts are set apart for the perpetual and exclusive use and benefit of such assignees and their heirs."

It is said that under treaties of 1846 and 1861 with the United States (9 Stat. 853; 12 Stat. 1191) the Pottawatomie Reservation was no part of the "public lands"; moreover that Congress lacked power to grant rights therein to a railroad company.

Subsequent to July 1, 1862, a census was duly taken; commissioners, appointed Jan

[2] In Kindred v. Union Pacific Railroad Co., 225 U. S. 582, 596, 32 Sup. Ct. 780, 56 L. Ed. 1216, lands in the Delaware Diminished Indian Reservation-east of the Pottawat-uary 16, 1863, made allotments, and in Noomies—were declared "public lands" within vember, 1863, submitted their report. The the intendment of the right of way clause, Secretary of the Interior, December 12, 1864, act of 1862, although then actually occupied approved allotments for the lands now inby individual members of the Tribe under volved to tribal members having improveassignments executed as provided by treaty.ments thereon before the treaty of 1861, and That case renders clear the definite purpose who had continued to live there. Patents of Congress to treat Indian Reservations, thereto issued at different dates, the earliest subject to its control, as public lands within being June 14, 1867, without expressly rethe right of way provision. This provision serving a right of way for the railroad. is not to be regarded as bestowing bounty on Plaintiffs in error claim through mesne conthe railroad; it stands upon a somewhat veyances from those who received such aldifferent footing from private grants, and lotments and patents. should receive liberal construction favorable to the purposes in view. United States v. Denver & Rio Grande Railway Co., 150 U. S. 1, 8, 14, 14 Sup. Ct. 11, 37 L. Ed. 975. Whether Congress had power to make grants in respect of the lands here involved must be determined upon a consideration of their history.

Article 5, treaty of 1861, offered certain privileges to the railroad company which were never accepted; the road was not constructed as provided by the treaty, but under the act of Congress.

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[3, 4] It seems plain that, at least, until actually allotted in *severalty (1864) the lands were but part of the domain held by the tribe under the ordinary Indian claim-the right of possession and occupancy-with fee in the United States. Beecher v. Wetherby, 95 U. S. 517, 525, 24 L. Ed. 440. The power of Congress, as guardian for the Indians, to legislate in respect of such lands is settled. Cherokee Nation v. Southern Kansas Rail