Race and the naturalization law
Note: As we all struggle to come to terms with current events, it may prove helpful to look back at some of our history. Believing firmly that knowing how we got here may help us all see the way forward, The Legal Genealogist will reprise posts that provide historical context.
If your family is anything like that of The Legal Genealogist, you have ancestors who traveled here in the 19th or even 20th centuries.
They were escaping a wide range of conditions in their native lands: oppression; war; poverty; even just a general lack of opportunity.
For many of our ancestors, the trip to America eventually ended up with a routine and relatively simple to the courthouse where, with a declaration of intent to become a citizen followed by a petition for naturalization and the court’s approval, they left their old lands completely behind and became Americans.
But not for all.
Some were not, in the eyes of the law, white enough to become citizens.
Oh, not those you might be thinking of. Not those who were of African descent. Not after 1870, when the law was changed to permit naturalization by “aliens of African nativity and to persons of African descent.”1
No, these were folks like Turks and Armenians, Japanese, Indians and Filipinos.
For these folks — our ancestors — their trip to naturalization was anything but routine or simple.
The problem: language in the naturalization laws limiting citizenship to “free white persons.” That language entered our statutes in 1790 and stayed there for generations:
• The initial naturalization act of 1790 provided for the naturalization of “any alien, being a free white person.”2
• The act of 1795 repeated that language: “any alien, being a free white person, may be admitted to become a citizen.”3
• The act of 1802 said the same thing: “any alien, being a free white person, may be admitted to become a citizen.”4
And so it continued, in 1816;5 in 1824;6 in 1828.7
In fact, the only naturalization act that didn’t have that limitation was an 1862 statute that allowed any honorably discharged soldier to be naturalized.8 And although the language of the 1870 statute didn’t include the “free white” language, Congress closed that loophole in 1875 with an act “to correct errors and to supply omissions in the Revised Statutes.”9
Now you might expect that things would have been dicey for darker-skinned immigrants in the days of slavery. Nope. The real issues arose in the early days of the 20th century. The courts that struggled with these cases did so well into the 1900s.
In 1909, the federal government asked the federal in Massachusetts to reject the naturalization petitions of four Armenians, arguing they weren’t white enough to be citizens. The court rejected the government argument:
We find, then, that there is no European or white race, as the United States contends, and no Asiatic or yellow race which includes substantially all the people of Asia; that the mixture of races in western Asia for the last 25 centuries raises doubt if its individual inhabitants can be classified by race; that, if the ordinary classification is nevertheless followed, Armenians have always been reckoned as Caucasians and white persons; that the outlook of their civilization has been toward Europe. We find, further, that the word “white” has generally been used in the federal and in the state statutes, in the publications of the United States, and in its classification of its inhabitants, to include all persons not otherwise classified; that Armenians, as well as Syrians and Turks, have been freely naturalized in this court until now, although the statutes in this respect have stood substantially unchanged since the First Congress; that the word “white,” as used in the statutes, publications, and classification above referred to, though its meaning has been narrowed so as to exclude Chinese and Japanese in some instances, yet still includes Armenians.10
In 1922, the U.S. Supreme Court itself rejected citizenship for a Japanese native, “born in Japan… (who) had continuously resided in the United States for 20 years. He was a graduate of the Berkeley, California, high school, had been nearly three years a student in the University of California, had educated his children in American schools, his family had attended American churches, and he had maintained the use of the English language in his home. That he was well qualified by character and education for citizenship is conceded.”11 And it did so because “The intention was to confer the privilege of citizenship upon that class of persons whom the fathers knew as white, and to deny it to all who could not be so classified. … The appellant in the case now under consideration, however, is clearly of a race which is not Caucasian, and therefore belongs entirely outside the zone…”12
In 1923, the Supreme Court rejected citizenship for an applicant described as “a high-caste Hindu, of full Indian blood, born at Amritsar, Punjab, India.”13 The Court’s reasoning might be regarded today as appalling:
The words of familiar speech, which were used by the original framers of the law, were intended to include only the type of man whom they knew as white. The immigration of that day was almost exclusively from the British Isles and Northwestern Europe, whence they and their forebears had come. When they extended the privilege of American citizenship to “any alien being a free white person,” it was these immigrants — bone of their bone and flesh of their flesh — and their kind whom they must have had affirmatively in mind. The succeeding years brought immigrants from Eastern, Southern and Middle Europe, among them the Slavs and the dark-eyed, swarthy people of Alpine and Mediterranean stock, and these were received as unquestionably akin to those already here and readily amalgamated with them. It was the descendants of these, and other immigrants of like origin, who constituted the white population of the country when § 2169, reenacting the naturalization test of 1790, was adopted, and, there is no reason to doubt, with like intent and meaning.14
Federal prosecutors were emboldened by the Bhagat Singh Thind decision and even went so far as to go after folks who’d already been naturalized. In Oregon, for example, in 1924, the government tried to cancel the naturalization of a prominent local Armenian, T.O. Cartozian. There, they didn’t succeed.15
So when did the law change?
Not until 1952.
Seriously.
It was only in the Immigration and Nationality Act of 1952 that the words “free white persons” were removed, for all time, from the naturalization laws.16
So if you’re sitting there pondering the naturalization status of your ancestors, and perhaps why you can’t find a record, think about the law of the time. And whether, under the law of that day, your own people might not have been white enough to be citizens.
Cite/link to this post: Judy G. Russell, “Review: how white was white enough?,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 11 June 2020). Originally posted in 2014.
SOURCES
- §7, “An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other Purposes,” 14 July 1870, 16 Stat. 254, 256 (1870); digital images, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” Library of Congress, American Memory (http://memory.loc.gov/ammem/amlaw/lawhome.html : accessed 11 June 2020). ↩
- §1, “An Act to establish a uniform Rule of Naturalization,” 26 Mar 1790, 1 Stat. 103 (1790). ↩
- §1, “An Act to establish a uniform rule of Naturalization; and to repeal the act heretofore passed on that subject,” 29 June 1795, 1 Stat. 414 (1795). ↩
- §1, “An Act to establish a uniform rule of Naturalization; and to repeal the acts heretofore passed on that subject,” 14 April 1802, 2 Stat. 153 (1802). ↩
- §2, “An Act relative to evidence in cases of naturalization,” 22 Mar 1816, 3 Stat. 258, 259 (1816). ↩
- §2, “An Act in further addition to ‘An act to establish a uniform rule of Naturalization’…,” 26 May 1824, 4 Stat. 69 (1824). ↩
- §2, “An Act to amend the acts concerning naturalization,” 24 May 1828, 4 Stat. 310 (1828). ↩
- §21, “An Act to define the Pay and Emoluments of certain Officers of the Army, and for other Purposes,” 17 July 1862, 12 Stat. 594, 597 (1862). ↩
- “An act to correct errors and to supply omissions in the Revised Statutes of the United States,” 18 Feb 1875, 18 Stat. (Part 3) 316, 318 (1875). ↩
- In re Halladjian et al., 174 F. 834, 834 (D. Mass. 1909). ↩
- Ozawa v. United States, 260 U.S. 178, 189 (1922). ↩
- Ibid., 260 U.S. at 195, 198. ↩
- United States v. Bhagat Singh Thind, 261 U.S. 204, 206 (1923). ↩
- Ibid., 261 U.S. at 213-214. ↩
- See “Tatos O. Cartozian with his Daughters,” The Oregon History Project, Oregon Historical Society (https://oregonhistoryproject.org/ : accessed 11 June 2020). ↩
- An Act to revise the laws relating to immigration, naturalization, and nationality; and for other purposes, 27 June 1952, 66 Stat. 163 (1952). ↩
Will you have the resource in which to research? Does it all matter?
Yes, it matters. These laws and ways of thinking about who could be a citizen in the past informs how we think of race and ethnicity and what it means to be a citizen today. And I do not understand the question about ‘resource to research.’ This is partly a case of ‘not remembering the past so we are repeating’ the same mistakes we made 200+ years ago.
Judy, I always thought we were a ‘melting pot’ until the last couple of years after studying American history while doing genealogy (I was a European history major in college). It seems that although some peoples melted in the pot of the United States and became citizens, it was not everyone. Obviously, from the beginning of our nation there was an effort to exclude those not white enough, not just black peoples.
The repetition of “free white person” made me wonder if “free” meant something more than just “not a slave”. There weren’t any white slaves in the USA, so why the emphasis? Were indentured people considered to be “not free”?
Indentured servants were not free until the end of their indenture. Also, the British Empire would transport convicts, political prisoners, and prisoners of war to the colonies in the Americas; they were not free until they had served their sentence. Georgia was originally established as penal colony.
Sara, Judy always includes a list of references after her column. Try those. And yes, it matters, because the very people excluded in the early statutes are the same ones now being targeted by white supremacists and just plain racists. I’m wondering: have you at all been paying attention to the news in recent weeks?
Judy, I am this was such a timely post. As you know, I write extensively on race as it relates to genealogy at Reclaiming Kin, and I’ve researched these exact cases. So much history that so many of us just didn’t learn. Thanks for talking about this!
As ever, I so appreciate your skills and perspective, Judy. I’ve spent many hours reading and unpacking the laws of Canada as they relate to Chinese (Japanese, Jews, Indigenous) and to the best of my ability, understanding the ramifications.
It’s painful to read the wording of the original laws, but it’s even more hurtful to glimpse the interlocking systemic web of laws that were designed to impede, curtail, limit, or prevent PoC from, among other things; voting, having a family, making a living, buying a home, running for office, hiring white women, working in a union, being employed by forestry or mining, or being called up to fight. If people remember anything, they think the Chinese got the vote in 1947 and were immediately accorded all the rights they’d been denied. (Don’t even get me started on the rights of the Indigenous to vote in all elections. The province of Quebec held out to 1969.)
It wasn’t until the passing of the Canadian Charter of Rights and Freedoms (1982) and the Order-in-Council 1616, 1967 (points-based immigration, as opposed to race-based immigration) that Canada embraced the ethos of the UN Charter signed in 1945. I’ve always wondered what happened in the two decades between 1945-1967, and it’s a hard-fought and largely unknown battle where rights and permissions were attained slowly.
It’s shameful to me now to recall with what certitude my teenaged self believed Canada had conquered racism.
Again, thank you for this blog.
One aspect of all this that does get forgotten is what was going on in the West Indies / Caribbean. There was a huge trade always between Barbados and ports like Charleston and Savannah in the 18th century and even back to the 17th century. Some of the colonists and the slaves came from there by a chain migration process. The reason why the British were in the Caribbean was that the sugar crop was so profitable. In the fight against Revolutionary France and then Napoleon, 1793-1815, the revenue stream from this trade was very significant in helping to fund the 7 Coalitions Britain had to put together to defeat France / Napoleon. From 1801-1805 the French Army was encamped at Boulogne. Sometimes it helps understand circumstances if you look at the same issues from a British colonial perspective – and to understand that you need to understand maritime trade and the Royal Navy, 1500-1900.
Excellent work as always, Judy. And as shocking as this history is, no one should believe that when the statute was finally changed in 1952, the racist attitudes long embedded in the law magically disappeared. The same people who were administering the law in 1951, were still on the job in 1953. And you can be sure many of them did whatever they could to resist change.
Fast-forwarding to 2020, those same bigoted sentiments are still very much alive and well in America. Sure, the immigration statutes are now race-neutral. But the old hatreds are being enforced every day by executive fiat as the Department of Homeland Security implements Donald Trump’s relentless attacks on non-white immigrants, and against anyone from what the president deems to be a “sh*thole” country.
They weren’t white enough in Puerto Rico, when the census was taken. I was surprised when I was researching my husband’s family, all of his relatives were classified as Black.