U.S. Supreme Court PERKINS v. ELG, 307 U.S. 325 (1939)

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14 Stat. 27; Fourteenth Amendment, Section 1, U.S.C.A.Const.; United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456. In a comprehensive review of the principles and authorities governing the decision in that case-that a child born here of alien parentage becomes a citizen of the United States-the Court adverted to the 'inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.' United States v. Wong Kim Ark, supra, 169 U.S. page 668, 18 S.Ct. page 164. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. [Footnote 1] And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law, on the resumption of that citizenship by her parents, does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, at citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.

Second.-It has long been a recognized principle in this country that if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties. [Footnote 2]

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Third.-Petitioners invoke our treaty with Sweden of 1869.10 This treaty was one of a series of naturalization treaties with similar terms, which were negotiated with various countries between 1868 and 1872.11 The relevant portions of the text of the treaty with Sweden, and of the accompanying protocol, are set forth in the margin. [Footnote 12]

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the United States under which his father or any other person can deprive him of his birthright'. To the same effect, as to the right of election, was the ruling of Secretary Evarts in 1879 in his instruction, above quoted, to our minister to Germany with respect to the brothers Boisseliers. [Footnote 18]

There were provisions, similar to those in the treaty with Sweden in the naturalization treaty with Denmark of 1872,19 but Secretary Evarts evidently did not regard those provisions as inconsistent with the claim, which he sustained, of one born here of Danish parentage who was taken abroad by his parents but insisted upon his American citizenship when he arrived at his majority. [Footnote 20] These rulings, following closely upon the negotiation of these naturalization treaties, show beyond question that the treaties were not regarded as abrogating the right of election for which respondent here contends.

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right of election if his parents became foreign nationals through naturalization. That would not seem to be a sensible distinction. Having regard to the plain purpose of Section 2 of the Act of 1907, to deal with voluntary expatriation, we are of the opinion that its provisions do not affect the right of election, which would otherwise exist, by reason of a wholly involuntary and merely derivative naturalization in another country during minority. And, on the facts of the instant case, this view apparently obtained when in July, 1929, on the instructions of the Secretary of State, the Department issued the passport to respondent as a citizen of the United States.

But although respondent promptly made her election and took up her residence in this country accordingly, and had continued to reside here, she was notified in April, 1935, that she was an alien and was threatened with deportation.

When, precisely, there occurred a change in the departmental attitude is not clear. [Footnote 28] It seems to have resulted in a conflict with the opinion of the Solicitor of the Department of Labor in the case of Ingrid Therese Tobiassen, and the Secretary of Labor because of that conflict requested the opinion of the Attorney General, which was given on June 16, 1932.29 It appeared that Miss Tobiassen, aged 20, was born in New York in 1911; that her father, a native of Norway, became a citizen of the United States by naturalization in 1912; that in 1919 Miss Tobiassen was taken by her parents to Norway where the latter had since resided; that at the age of 18 she returned to the United States and took up her permanent residence in New Jersey. The question arose

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but we are compelled to agree with the Court of Appeals in the instant case that the conclusions of that opinion are not adequately supported and are opposed to the established principles which should govern the disposition of this case. [Footnote 31]

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(Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S.Ct. 461, 108 A.L.R. 1000), declared Miss Elg 'to be a natural born citizen of the United States' (99 F.2d 414) and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship.

The decree will be modified accordingly so as to strike out that portion which dismisses the bill of complaint as to the Secretary of State, and so as to include him in the declaratory provision of the decree, and as so modified the decree is affirmed. It is so ordered.

Decree modified and, as modified, affirmed.

Mr. Justice DOUGLAS took no part in the consideration and decision of this case. Footnotes

Footnote 1 Oppenheim's International Law, Vol. I, Sec. 308; Moore, International Law Digest, Vol. III, p. 518; Hyde, International Law, Vol. I, Sec. 372; Flournoy, Dual Nationality and Election, 30 Yale Law Journal, 546; Borchard, Diplomatic Protection of Citizens Abroad, Sec. 253; Van Dyne, Citizenship of the United States, p. 25; Fenwick, International Law, p. 165.

Footnote 2 Hyde, op. cit., Secs. 374, 375; Borchard, op. cit., Sec. 259; Van Dyne, op. cit., pp. 25-31; Moore, Int. Law Dig., Vol. III, pp. 532-551.

Footnote 3 Moore, Int. Law Dig., Vol. III, p. 543.

Footnote 4 Moore, Int.Law Dig., Vol. III, p. 544.

Footnote 5 Foreign Relations, 1888, Pt. 2, p. 1341. See, also, Mr. Bayard, Secretary of State to Mr. McLane (1888), to Count Sponneck, Danish Minister (1888); Moore, Int.Law Dig., Vol. III, p. 548; Mr. Olney, Secretary of State, to Mr. Materne, 1896; Moore, Int.Law Dig., Vol. III, p. 542; United States ex rel. Schimeca v. Husband, 2 Cir., 6 F.2d 957, 958.

Footnote 6 Foreign Relations, 1906, p. 657. See, also, 'Compilation of Certain Departmental Circulars' relating to citizenship, etc., issued by Department of State, 1925, containing instructions to Diplomatic and Consular Officers under date of November 24, 1923, pp. 118, 121, 122; United States ex rel. Baglivo v. Day, D.C., 28 F.2d 44.

Footnote 7 See also, Mr. Uhl, Acting Secretary of State to Mr. Rudolph, May 22, 1895, 202 MS.Dom.Let. 298; Moore, Int.Law Dig., Vol. III, p. 534.

Footnote 8 15 Stat. 223, 8 U.S.C.A. 13-15.

Footnote 9 Van Dyne, op. cit., p. 269; Borchard, op. cit., Sec. 315; Hyde, op. cit., Sec. 376.

Footnote 10 17 Stat. 809.

Footnote 11 North German Confederation, 1868, 15 Stat. 615; Bavaria, 1868, 15 Stat. 661; Baden, 1868, 16 Stat. 731; Wurttemberg, 1868, 16 Stat. 735; Hesse, 1868, 16 Stat. 743; Belgium, 1868, 16 Stat. 747; Great Britain, 1870, 16 Stat. 775; Austria-Hungary, 1870, 17 Stat. 833; Denmark, 1872, 17 Stat. 941. See Flournoy and Hudson, Nationality Laws, pp. 661-673; Moore, Int.Law Dig., Vol. III, p. 358.

Footnote 12 The treaty provides:'The President of the United States of America and his Majesty the King of Sweden and Norway, led by the wish to regulate the citizenship of those persons who emigrate from the United States of America to Sweden and Norway and their dependencies and territories, and from Sweden and Norway to the United States of America, have resolved to treat on this subject, and have for that purpose appointed plenipotentiaries to conclude a convention, ... who have agreed to and signed the following articles:-'Art. I. Citizens of the United States of America who have resided in Sweden or Norway for a continuous period of at least five years, and during such residence have become and are lawfully recognized as citizens of Sweden or Norway, shall be held by the government of the United States to be Swedish or Norwegian citizens, and shall be treated as such.'Reciprocally, citizens of Sweden or Norway who have resided in the United States of America for a continuous period of at least five years, and during such residence have become naturalized citizens of the United States, shall be held by the government of Sweden and Norway to be American citizens, and shall be treated as such.'The declaration of an intention to become a citizen of the one or the other country has not for either party the effect of citizenship legally acquired.'Art. III. If a citizen of the one party, who has become a recognized citizen of the other party, takes up his abode once more in his original country and applies to be restored to his former citizenship, the government of the last named country is authorized to receive him again as a citizen on such conditions as the said government may think proper'.

The protocol containing 'the following observations, more exactly defining and explaining the contents' of the convention provides:'I. Relating to the first article of the convention. 'It is understood that if a citizen of the United States of America has been discharged from his American citizenship, or, on the other side, if a Swede or a Norwegian has been discharged from his Swedish or Norwegian citizenship, in the manner legally prescribed by the government of his original country, and then in the other country in a rightful and perfectly valid manner acquires citizenship, then an additional five years' residence shall no longer be required; but a person who has in that manner been recognized as a citizen of the other country shall, from the moment thereof, be held and treated as a Swedish or Norwegian citizen, and, reciprocally, as a citizen of the United States.'III. Relating to the third article of the convention.'It is further agreed that if a Swede or Norwegian, who has become a naturalized citizen of the United States, renews his residence in Sweden or Norway without the intent to return to America, he shall be held by the government of the United States to have renounced his American citizenship.'The intent not to return to America may be held to exist when the person so naturalized resides more than two years in Sweden or Norway'.

Footnote 13 Compare Secretary Hay to Mr. Harris, Foreign Relations, 1900, p. 13.

Footnote 14 While the nationality law of Sweden is not to be regarded as controlling unless the treaty makes it so-which we have found is not the case-it may be observed that it is not clear that the law of Sweden would operate so as to preclude recognition that respondent is a citizen of the United States. See the Swedish law of 7 May, 1909, Art. 8. That, however, is a question of foreign law which we find it unnecessary to attempt to determine.

Footnote 15 See Note 10.

Footnote 16 15 Stat. 615. See Terlinden v. Ames, 184 U.S. 270, 283, 284 S., 22 S. Ct. 484, 489.

Footnote 17 Steinkauler's Case, 15 Op.Atty.Gen. 15, 17, 18.

Footnote 18 Moore, Int.Law Dig., Vol. III, p. 543.

Footnote 19 17 Stat. 941.

Footnote 20 Moore, Int.Law Dig., Vol. III, p. 544.

Footnote 21 Mr. Wharton, Acting Secretary of State, to Count Sponneck, Danish Minister (1890); Moore, Int.Law Dig., p. 715.

Footnote 22 Secretary Sherman to Mr. Grip, Swedish Minister, June 15, 1897; Moore, Int.Law Dig., Vol. III, p. 472; 8 MS., Notes to Sweden, 58.

Footnote 23 Foreign Relations, 1906, p. 657.

Footnote 24 34 Stat. 1228, 8 U.S.C. 17, 8 U.S.C.A. 17.

Footnote 25 Sections 5 and 6 of this statute should also be noted as they contain provisions applicable to minor children. They are as follows:'Sec. 5. That a child born without the United States of alien parents shall be deemed a citizen of the United States by virtue of the naturalization of or resumption of American citizenship by the parent: Provided, That such naturalization or resumption takes place during the minority of such child: And provided further, That the citizenship of such minor child shall begin at the time such minor child begins to reside permanently in the United States.'Sec. 6. That all children born outside the limits of the United States who are citizens thereof in accordance with the provisions of section nineteen hundred and ninety-three of the Revised Statutes of the United States and who continue to reside outside the United States shall, in order to receive the protection of this Government, be required upon reaching the age of eighteen years to record at an American consulate their intention to become residents and remain citizens of the United States and shall be further required to take the oath of allegiance to the United States upon attaining their majority'.

Footnote 26 See Note 25.

Footnote 27 'Compilation of Certain Departmental Circulars' relating to citizenship, etc., issued by Department of State, 1925, containing instructions to diplomatic and consular officers under date of November 24, 1923, pp. 118, 121, 122.

Footnote 28 That there had been a change is frankly stated in the communication (a copy of which is annexed to the complaint) addressed by the American Consul at Goteborg, Sweden, to the respondent's father under date of October 29, 1935.

Footnote 29 Citizenship of Tobiassen, 36 Op.Atty.Gen., page 535.

Footnote 30 Cited as of June 14, 1871, the date of the exchange of ratifications.

Footnote 31 The same may be said of the opinion of the Circuit Court of Appeals of the Ninth Circuit in United States v. Reid, 73 F.2d 153, certiorari denied upon the ground that the application was not made within the time provided by law, 299 U.S. 544, 57 S.Ct. 44, so far as it is urged by petitioners as applicable to the facts of the instant case.

Footnote 32 Act of July 13, 1937, 50 Stat.Pt. 2, p. 1030; Act of June 25, 1938 ( Private No. 751, 75th Cong., 3d Sess., 52 Stat. 1410).