James Alger Fee

James Alger Fee was a United States circuit judge who served on the United States Court of Appeals for the Ninth Circuit from 1954 until his death in 1959. Born in eastern Oregon in 1888, he had a distinguished legal career that included military service, private practice, state judicial service, and more than two decades as a United States district judge before his elevation to the federal appellate bench. His judicial tenure was marked by significant cases involving Native American treaty rights, Japanese American internment during World War II, and government liability issues. He was appointed to the Ninth Circuit by President Dwight D. Eisenhower, a Republican, and served in that capacity until his death at age 70.

Early life and legal career

James Alger Fee was born on September 24, 1888, in Pendleton, a city in eastern Oregon. He pursued his undergraduate education at Whitman College in Walla Walla, Washington, where he earned a Bachelor of Arts degree in 1910. During his time at Whitman, he was a member of the Gamma Zeta chapter of the Beta Theta Pi fraternity. Following his undergraduate studies, Fee relocated to New York City to continue his education at Columbia University, where he completed a master's degree. He remained at Columbia for his legal education, attending Columbia Law School and graduating with a Bachelor of Laws degree in 1914.

After completing his legal education, Fee returned to his native Oregon and was admitted to the bar in 1914. He established a private law practice in his hometown of Pendleton, where he began building his legal career. In 1916, he took on the role of city attorney for Pendleton, a position he held until 1917. His tenure as city attorney was cut short when he entered military service, joining the United States Army's Air Service with the rank of lieutenant. Fee served in the military until 1919, after which he transitioned to civilian government service as a member of the legal staff at the War Department. He remained with the War Department until 1920, when he returned to Pendleton to resume private practice.

Fee practiced law privately in Pendleton throughout the 1920s. His father had also served as a judge in Oregon, establishing a family tradition in the judiciary. Fee was a partner in the law firm of Fee & Slater during this period. In 1916, he married Frances Waldo, who had been born in Berkshire, New York, in 1886. The couple had three daughters: Frances Louise, Margery Waldo, and Lillian Adele. Frances Fee was actively involved in civic organizations, including the American Association of University Women, the Army and Navy League, and the executive board of the Camp Fire Girls. She passed away on September 20, 1935.

In 1927, Fee transitioned from private practice to the judiciary, accepting appointment to the Oregon Circuit Court, where he served as a state trial judge until 1931. This four-year period on the state bench provided him with judicial experience that would prove valuable in his subsequent federal service.

Federal appellate service

Fee's federal judicial career began at the district court level. He received a recess appointment from President Herbert Hoover on March 18, 1931, to a seat on the United States District Court for the District of Oregon that had been vacated by Judge Robert S. Bean. President Hoover formally nominated Fee to the same position on December 15, 1931. The United States Senate confirmed the nomination on December 22, 1931, and Fee received his commission the following day. He would serve on the district court for more than two decades, eventually becoming Chief Judge of the District of Oregon, a position he held from 1948 to 1954.

During his extensive tenure on the district court, Fee presided over numerous significant cases covering a wide range of legal issues. He ruled on matters involving Native American treaty rights, determining in one case that Native Americans possessed superior fishing rights over non-Native Americans at certain locations, including Celilo Falls, based on treaties signed in the nineteenth century. In 1952, he decided two cases related to the 1948 flood that destroyed Vanport, Oregon, ruling that the federal government was not liable for property damage suffered by residents. His docket also included labor disputes, religious organization contract matters, administrative issues involving national parks, and municipal infrastructure cases.

The most nationally prominent case of Fee's district court service involved the wartime internment of Japanese Americans. In June 1942, he presided over the trial of Minoru Yasui, an Oregon native of Japanese descent who was prosecuted for violating a curfew that applied only to persons of Japanese heritage. The curfew had been imposed by General John L. DeWitt under authority granted by President Franklin Roosevelt's Executive Order 9066, which initiated the Japanese American internment following the attack on Pearl Harbor. Yasui, an attorney and United States Army reservist who had worked for the Japanese consulate in Chicago before the war, was the first person arrested for violating the curfew. He had deliberately broken the curfew in downtown Portland to challenge its constitutionality. In his ruling, Fee determined that the curfew could only lawfully apply to aliens, as martial law had not been declared. However, he also ruled that Yasui had forfeited his American citizenship by working for the Japanese government, and therefore the curfew did apply to him. Fee sentenced Yasui to one year in jail, to be served at the Multnomah County Jail. The case was appealed to the United States Supreme Court, which decided the matter differently, holding that Yasui remained a citizen but that the curfew could constitutionally apply to citizens. After the Supreme Court returned the case to Fee for reconsideration in light of its ruling, he affirmed the conviction on the grounds established by the higher court. The case attracted national attention and became part of the broader legal and historical record of the internment period.

Fee's service on the district court terminated on April 30, 1954, when he was elevated to the circuit court. President Eisenhower nominated him on April 6, 1954, to a seat on the United States Court of Appeals for the Ninth Circuit that had been vacated by Judge Clifton Mathews. The Senate confirmed Fee on April 23, 1954, and he received his commission on April 30, 1954. Upon assuming his new position, Fee relocated his chambers from Oregon to San Francisco, California, where the Ninth Circuit is headquartered.

Jurisprudence and legacy

Fee served on the Ninth Circuit for approximately five years until his death. During his appellate tenure, he continued to address significant legal questions, including issues of government liability. In 1957, he authored an opinion in a case involving the federal government's liability for damages related to nuclear bomb testing that had occurred in 1951. In that decision, Fee declined to hold the government liable for such damages, addressing novel questions arising from the atomic age.

Fee's judicial philosophy and approach were shaped by his extensive experience on the trial bench before his elevation to the appellate court. His more than two decades as a district judge gave him a practical understanding of trial procedure and fact-finding that informed his work as an appellate jurist. The breadth of cases he handled at the district level—ranging from Native American rights to wartime civil liberties, from labor disputes to government tort claims—demonstrated his capacity to address diverse and complex legal issues.

The Yasui case remains the most historically significant matter with which Fee was associated. His initial ruling, which attempted to limit the scope of the wartime curfew to non-citizens while simultaneously finding that Yasui had lost his citizenship, reflected the difficult legal and social tensions of the wartime period. The Supreme Court's reversal of his citizenship determination, while upholding the constitutionality of applying the curfew to citizens, became part of the controversial legal framework that permitted the internment. Decades later, the internment and the legal decisions that facilitated it, including the Yasui case, have been widely recognized as a grave injustice and a departure from constitutional principles.

Fee's service on the Ninth Circuit was cut short by his death on August 25, 1959, just one day before his seventy-first birthday. He had served on the federal bench, at both the district and circuit levels, for over twenty-eight years. His career spanned significant periods in American history, including the Great Depression, World War II, and the early Cold War era, and his judicial decisions addressed many of the legal challenges that arose during those transformative decades.