Kenji Namba v. McCourt


The 1949 Oregon Supreme Court decision Kenji Namba v. McCourt, (185 Ore. 579, 204 P. 2d. 569) struck down the state's alien land law. As the first ruling by a state high court against the network of alien land legislation in Western states, it was an authoritative blow against racial discrimination in land ownership.

Background

The Namba case grew out of Oregon's alien land law, which barred Japanese and other Asian immigrants, under the category of "aliens ineligible to citizenship," from purchasing agricultural property. While they could buy property for underage minor children, who were citizens, any such gift was subject to a legal presumption that it was made in violation of the alien land act. First enacted in February 1923, the law represented one of the series of copycat laws enacted against Japanese Americans on the model of California's 1913 statute, which would itself be upheld by the U.S. Supreme Court in Terrace v. Thompson in late 1923. Oregon's alien land law was seldom enforced during the prewar era.

In the closing months of World War II, as Japanese Americans confined in War Relocation Authority camps began migrating back to the West Coast, various state legislatures enacted legal barriers to discourage them from residing there. In California, the state legislature enacted a statute barring Japanese aliens from receiving fishing licenses, and funded escheat suits to enforce that state's alien land act. In Oregon, the state legislature enacted a new and strengthened alien land law in 1945. Not only did it bar "aliens ineligible to citizenship" from purchasing land, but also made it a crime for them to enter into any contract made in the name of a wife or child. Property purchased in violation of the act would escheat to the state, while lease contracts would be voided.

Test Case

In 1947, Japanese Americans and their allies in Oregon formed the Oregon Alien Land Law Test Case Committee, and the Portland, Snake River, and Mid-Columbia branches of the Japanese American Citizens League helped raise money for a legal challenge. Kennie Kenji Namba, a 22-year-old veteran of the 442nd Regimental Combat Team, and his father Etsuo Namba, a Japanese immigrant, agreed to serve as litigants. In the years before the war, Etsuo and his five children had operated a farm in Fairview, a town around fifteen miles east of Portland. In 1942, the Nambas were confined at the Portland Assembly Center and then at the Minidoka camp. In 1943, Kenji Namba volunteered from camp for the 442nd. Wounded by a German hand grenade while in combat in Italy, he spent 40 days in the hospital, and received the Purple Heart and Bronze Star for his actions.

Following the end of the war, the Nambas returned to their Fairview home, only to discover that others were working the land. They therefore sought to lease a 62-acre farm near Gresham. Along with Florence C. Donald, the property owner, they brought suit in court to have the alien land law that prevented them from doing so declared unconstitutional. Allan Hart and Verne Dusenbery (sometimes written as Dusenberry), two American Civil Liberties Union attorneys from Portland, agreed to argue the case pro bono. John M. McCourt, Multnomah County district attorney and George Neuner, the state district attorney, were named as defendants. On July 29, 1947, the Namba case was argued before Judge James W. Crawford at the Multnomah County courthouse. Crawford thereafter issued a declaratory decree upholding the alien land act. The Nambas then appealed. In the interim, the legal landscape was drastically altered by the U.S. Supreme Court's January 1948 decision in Oyama v. California. By a 6-3 majority, the High Court ruled that California's alien land law discriminated against U.S. citizens of Japanese ancestry by imposing on them the burden of proving that gifts of land from alien parents were not made with intent to evade the alien land law. It thereby violated the Fourteenth Amendment of the U.S. Constitution. Although the Oyama decision did not directly address the question of whether Japanese aliens could lease or purchase property for themselves, both the spirit of the decision and language of the concurring opinions left grave doubt that the law could survive constitutional scrutiny—a doubt reinforced later the same year when the Supreme Court struck down California's anti-alien fishing law in Takahashi v. California Fish and Game Commission.

State Supreme Court Ruling

On December 21, 1948, Hart and Dusenbery argued the Namba appeal before the Oregon Supreme Court. Rex Kimmell, deputy state attorney general and his assistant Cecil H. Quesseth, were respondents. Even as the judges considered the appeal, on February 7, 1949, the Oregon legislature repealed the 1945 alien land law amendment, and a group of senators introduced a bill to strike the 1923 act entirely. Before they could enact the measure, however, on March 29, 1949, the Oregon Supreme Court ruled in favor of the Nambas, overturning the circuit court ruling by a 4-0 margin. In his court opinion, Judge George Rossman found that the state's alien land law was an infringement of the 14th Amendment equal protection clause. Noting the Supreme Court's Oyama and Takahashi decisions—and notably the concurrences by Justices Black and Murphy which held the California law to be directly based in racial discrimination—Rossman held that while Oyama did not directly refer to the rights of Japanese aliens, "It may be that the decision, in fact, ended the Alien Land Law." Rossman concluded, "Our country cannot afford to create by legislation or judicial construction a ghetto for our ineligible aliens."

Not only did the Namba case eliminate land discrimination against Japanese Americans in Oregon, but it also served as a crucial precedent for the California Supreme Court in the cases of Fujii v. California and Masaoka v. California three years later, in which that court struck down that state's historic alien land law.

Etsuo Namba died in 1969. Kenji Namba graduated from University of Portland in 1953, and thereafter worked for thirty years as a right-of-way agent for Pacific Power & Light. He died in 2012.

Authored by Greg Robinson, Université du Québec À Montréal

For More Information

Chuman, Frank F. The Bamboo People: The Law and Japanese-Americans. Del Mar, Calif.: Publisher's Inc., 1976.

McGovney, Dudley O. "The Anti-Japanese Land Laws of California and Ten Other States." California Law Review 35.1 (1947): 7-54.

Robinson, Greg. After Camp: Portraits in Midcentury Japanese American Life and Politics. Berkeley: University of California Press, 2012.