Excerpted From: Gabriel J. Chin and Anna Ratner, The End of California's Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice, 29 Asian American Law Journal 17 (2022) (210 Footnotes) (Full Document)

ChinRatnerFrom the earliest days of statehood, California had a policy of driving out Asian people. California law used a variety of techniques to oppress Asians, from direct controls on immigration, prohibition of employment of “Mongolians,” discriminatory licensure, testimonial disqualification, and the traditional Jim Crow methods of selective enforcement of facially neutral laws, school segregation, prohibition of interracial marriages, and denial of voting rights. California also encouraged the federal government to enact, enforce, and strengthen Asian Exclusion from immigration. Denial of land ownership and other economic opportunities was another important part of anti-Asian policy.

California's Alien Land Law was a model for the nation, adopted in as many as 15 states, from Delaware to Oregon. Although the existence of land laws is well known, their end has gone almost unnoticed in the legal literature. As this article explains, years before Brown v. Board of Education, when public and private racial discrimination were perfectly legal in many spheres of American life, California in 1951 reversed course and paid reparations to Asian Californians whose land it had taken by “escheat” under the Alien Land Law. The repudiation of the Alien Land Law came not only from the courts, but also from the voters, who declined to ratify it in a referendum, and from the legislature, which authorized payments even though it was not legally required to do so, and even in the face of some doubt that it had the power.

In later years, California and federal courts had to address the aftermath of the Alien Land Law. When the Alien Land Law was in effect and enforced, Asians developed stratagems to control land while avoiding escheat. Subsequently, family members and business partners insisted that technical, legal owners were not necessarily the true beneficial owners. Instead, some claimed, land had been placed in the names of straw owners, or held in secret trusts, in order to allow Asians to own or control land. After the Alien Land Law was invalidated, they wanted the law to give effect to the true arrangement, even though it had been implemented to frustrate laws which were valid at the time of the transaction. Under the doctrine of “illegal contracts,” courts generally do not aid parties to crimes. Yet, all courts facing such claims apparently agreed that the techniques were legitimate efforts to evade invalid laws, and gave effect to secret, previously illegal arrangements.

Part I discusses the California Alien Land Laws and their treatment in the Supreme Court. It also discusses the reparations campaign of the Japanese American community, the changing views of lawmakers, and the reaction to historical events that made reparations possible. Part II analyzes the end of the laws, and the legislature's decision to pay reparations. Part III discusses the tax and trust consequences resulting from strategies employed by Asians to avoid the consequences of the law, such as holding property in the names of straw buyers.

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In 1985, California Supreme Court Justice Stanley Mosk would contend that “[w]e have come a long way since the days of alien land laws.” There is at least substantial truth to this claim. The decision to repay Japanese Americans who had lost their land was remarkable. Every non-White person who had lost property had done so with due process of law, including an opportunity for a judicial trial. In addition, the U.S. Supreme Court to this day has never held that the land laws were unconstitutional because they were racially discriminatory. Thus, even though the legislature had not been compelled to act, and despite the strong possibility that they could not have been (because of sovereign immunity and the lawfulness of the takings at the time), the legislature chose to right what it had come to regard as wrongs. The legislature was supported by the voters who declined to support the Alien Land Law in 1945 and ultimately repealed it, and the courts, which sent strong signals of disapproval, and ultimately invalidated the Alien Land Law, a decision in which the executive branch acquiesced by not appealing.

Reparations for Japanese Americans was not limited to compensation for lost land. A federal statute in 1948 offered compensation for some property losses of Japanese Americans incarcerated during the War, and Congress awarded monetary compensation for the incarceration itself in 1988. There was also compensation for lost employment.

All of this compensation was richly deserved. Yet, this country's long history of racial regulation raises the question of why there were reparations for the Alien Land Law when there have not been for other wrongs, which were longer-lasting, affected more people, and resulted in injury and death, not “just” financial loss? To be sure, there was also some public recognition that “[o]ur war-time treatment of Japanese aliens and citizens of Japanese descent on the West Coast has been hasty, unnecessary and mistaken.” At the same time, there are few defenders of repudiated policies like Jim Crow, the genocide of indigenous peoples in the United States, and slavery, but that rejection has not led to compensation. While a full discussion of the theory and history of reparations is beyond the scope of this paper, one reparations scholar offered the following explanation as a summary of why Japanese Americans have been successful in ways that African Americans have not.

The African American claim faces two major difficulties. First, it is difficult to frame the call for reparations in a convincing manner because many of the victims are long since dead, there are too many of them, and they cannot easily be identified. Second, the causal chain between past harms and present victims is too long and too complex, with too many actors and events implicated. By contrast, the Japanese American claim for reparations was easily framed. Both victims and perpetrators were easily identifiable, and the event took place over a short, finite period. The harm was clear, and the causal chain was short and lacking in complexity.

Another factor might be the contemporary international political situation. Segregation was counter-productive, a blunder, given the Cold War contest for hearts and minds around the world, which was explicitly acknowledged by the Department of Justice. Another reason for the success might be the determinate and small number of claimants, all identifiable from court records, and a readily calculable and limited amount of loss.

However, California and the United States have not come a long way since those days. The United States remains fundamentally shaped by an anti-Asian policy. During the decades of open immigration, the United States and the states discouraged and then flatly prohibited the immigration of Asians. A key idea behind the California Alien Land Law was that Asians might own all of the real estate in the country: “If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens.” This idea was similar to those of earlier anti-Chinese agitation, which the Supreme Court noted was based on a conclusion “that that their immigration was in numbers approaching the character of an Oriental invasion, and was a menace to our civilization.” While some mid-century critics of the Alien Land Laws rejected anti-Asian prejudice on principle, they also regularly observed that the threat of Asian invasion and Asian property domination had passed.

In his Oyama concurrence, Justice Murphy contended that because of their age and the immigration ban, Japanese farmers presented no threat and could present no threat in the future.

The nature of the Japanese alien segment of the California population is significant. In 1940 there were 33,569 Japanese aliens in that state, but the number is now smaller, the best estimate being about 25,000. The 33,569 figure represents those who entered before 1924, when Congress prohibited further immigration of aliens ineligible for citizenship.While the Alien Land Law has undoubtedly discouraged some from becoming farmers, the number who would normally be non-farmers remains relatively substantial. The farmers, actual and potential, among this declining group are numerically minute. The existence of a few thousand aging residents, possessing no racial characteristic dangerous to the legitimate interests of California, can hardly justify a racial discrimination of the type here involved.

Likewise, the Fujii majority of the California Supreme Court observed:

According to 1940 census figures, the alien Japanese population of California was 33,569. Immigration of persons ineligible to citizenship was halted by the Exclusion Act of 1924, 43 Stats. 161, 8 U.S.C.A. § 213(c), hence Japanese aliens in the state in 1949 were necessarily of mature years, and their number must have been materially less than in 1940 due to death, changes of residence, deportation and other causes.

The Oregon Supreme Court decision invalidating its land law made a similar point:

With the enactment in 1924 of the Exclusion Act, 8 U.S.C.A. § 213(c), immigration from Japan ended. Accordingly, all Japanese nationals who are now in Oregon are at least twenty-five years of age, and manifestly, many of them are in middle life or beyond. It is with them that our Alien Land Law deals. According to the 1940 census, there were then 1,617 Japanese aliens in Oregon. Very likely death, the effects of evacuation and other causes have reduced that number materially.

None of this is to say that all, or even many, of the jurists, legislators, and voters were disingenuous when they ended the Alien Land Law and other anti-Asian policies. It may be that some to all of them were attempting to make substantial changes politically palatable. Nevertheless, it is telling that even at this point, they saw the need to underscore the likelihood that there would be little real change as a result of the decisions.

California's Alien Land Law had been enacted to restrict the economic lives of Asians, based on a desire to minimize Asian presence in the state. The network of laws worked, limiting the number of Japanese immigrant farmers and contributing to a wave of anti- Asian public policy which led to the comprehensive exclusion of Asians in 1924. As late as 1960, Asians remained only about one half of one percent of the U.S. population. Reparations for the California Alien Land Law had been made to members of a group which had, by successful policy innovation, nearly been eliminated from the country. As such, the California Alien Land Law is at best an uncertain precedent for the political possibility of reparations for groups whose status is not settled.

Edward L. Barrett Jr. Chair and Martin Luther King Jr. Professor, University of California, Davis, School of Law. This email address is being protected from spambots. You need JavaScript enabled to view it. </p

Member, California Bar.