Race, Nation, and Refuge

The Rhetoric of Race in Asian American Citizenship Cases

Doug Coulson

• Publisher: SUNY Press
• Year: 2017
• Print ISBN: 9781438466606, 9781438466613
• eBook ISBN: 9781438466620
• Topic: Social Sciences
• Subtopic: North American History
• Index: Social Sciences

From 1870 to 1940, racial eligibility for naturalization in the United States was limited to "free white persons" and "aliens of African nativity and persons of African descent, " and many interpreted these restrictions to reflect a policy of Asian exclusion based on the conclusion that Asians were neither white nor African. Because the distinction between white and Asian was considerably unstable, however, those charged with the interpretation and implementation of the naturalization act faced difficult racial classification questions. Through archival research and a close reading of the arguments contained in the documents of the US Bureau of Naturalization, especially those documents that discussed challenges to racial eligibility for naturalization, Doug Coulson demonstrates that the strategy of foregrounding shared external threats to the nation as a means of transcending perceived racial divisions was often more important to racial classification than legal doctrine. He argues that this was due to the rapid shifts in the nation's enmities and alliances during the early twentieth century and the close relationship between race, nation, and sovereignty.

1

MONGOLIAN INVADERS, THE BUREAU OF NATURALIZATION, AND OZAWA

Although eligibility for naturalized citizenship was limited to “free white persons” from the time the nation’s first naturalization act was passed in 1790, the earliest published judicial opinion to address the racial eligibility provision of the act was issued in In re Yup in 1878. In Yup, Judge Lorenzo Sawyer of the United States Circuit Court for the District of California decided whether a “native and citizen of the empire of China, of the Mongolian race,” was a “free white person” for purposes of naturalization. Sawyer held that the applicant was not “white,” writing in his published opinion that the words “white person,”

in this country, at least, have undoubtedly acquired a well settled meaning in common popular speech, and they are constantly used in the sense so acquired in the literature of the country, as well as in common parlance. As ordinarily used everywhere in the United States, one would scarcely fail to understand that the party employing the words “white person” would intend a person of the Caucasian race.

After referring to the leading ethnological authorities of the nineteenth century, Sawyer claimed that

neither in popular language, in literature, nor in scientific nomenclature, do we ordinarily, if ever, find the words “white person” used in a sense so comprehensive as to include an individual of the Mongolian race.1

Based on popular perceptions of the Caucasian and Mongolian racial division, which classified the Chinese as Mongolian, Sawyer concluded that it was beyond dispute that because the Chinese were not Caucasian they were not “white.”

The certainty with which Judge Sawyer regarded the racial classification of the Chinese was echoed in other cases. In a 1909 case regarding the racial eligibility of Armenians for naturalization, for example, the United States attorney argued that

without being able to define a white person, the average man in the street understands distinctly what it means, and would find no difficulty in assigning to the yellow race a Turk or Syrian with as much ease as he would bestow that designation on a Chinaman or a Korean.2

Despite this argument, there are no reported cases in which the Bureau of Naturalization opposed the racial eligibility for naturalization of a Turk, and there is evidence that the bureau mostly deferred to early judicial precedent holding Syrians to be “free white persons” for purposes of naturalization. In a case involving a Parsi applicant the following year, a federal appeals court similarly wrote that “for practical purposes there is no difficulty in saying that the Chinese, Japanese, and Malays and the American Indians do not belong to the white race.”3 In these and other early cases interpreting the racial eligibility provisions of the naturalization act, the racial classifications made were depicted as so obvious that they required little explanation beyond brief citation of ethnological authorities or previous judicial precedent.

The certainty of such statements is belied by a considerably more fraught history of racial classification in the United States, however, dating from the time of the nation’s founding. As Michael Keevak describes, in initial encounters Europeans “almost uniformly” described natives of the Far East as “white” and even described their whiteness in particularly superlative terms, such as “rather white” (zimblich weiß), “truly white” (véritablement blanc), “completely white” (fulkomligen hvita), “white like us” (bianchi, si come siamo noi), and “as white as we are” (aussi blancs que nous). In correspondence with his former aide Tinch Tilghman, George Washington expressed surprise that Tilghman had compared the physical appearance of Chinese sailors to American Indians because Washington thought that the Chinese, “tho’ droll in shape and appearance, were yet white.”4 In 1860, the United States census included 33,149 male and 1,784 female Asians in the “white” population,5 and Chinese immigrants arriving in the United States in the nineteenth century were granted naturalization certificates in Eastern states for decades before the Chinese Exclusion Act prohibited Chinese naturalizations. As early as the 1830s, Chinese naturalizations were recorded in New York and North Carolina,6 and in 1870 a Boston newspaper article recounted the longstanding practice in Massachusetts of naturalizing “Chinese as well as other Asiatics” since at least 1843.7 The United States Circuit Court for the District of Massachusetts also found as late as the turn of the twentieth century that it had long been its practice to naturalize Asian immigrants.8 In 1879, a San Francisco newspaper article remarked that although Judge Sawyer had ruled against Chinese naturalizations in California “one Judge Larrimore in New York is making American citizens out of Chinamen as fast as he can.”9

As late as World War I, the classification of the Japanese as “white” was even explicitly defended by ethnologists and other scholarly commentators. In an 1894 article in the American Law Review, legal scholar John Wigmore argued that “in the scientific use of language and in the light of modern anthropology, the term ‘white’ may properly be applied to the ethnical composition of the Japanese,”10 and in a 1913 article in the North American Review William Griffis wrote that “to class the Japanese as ‘Mongolians’ is absurd.”11 In 1909, Judge Francis Lowell of the United States District Court for the District of Massachusetts wrote that “at one time Chinese and Japanese were deemed to be white, but are not usually so reckoned today” because “the change of sentiment and usage … produced a change in the construction” of the naturalization act, and as a result “its meaning has been narrowed so as to exclude Chinese and Japanese in some instances.”12 Drawing on previous ethnological accounts, H. G. Wells claimed in his 1920 bestseller Outline of History that the Japanese and others in the Indian Ocean and Pacific Rim descended from the Mediterranean people of Europe who migrated to Central Asia and the Pacific,13 and the United States census of 1910 reflected hundreds of Japanese who had been granted naturalizations.14 Like the Chinese, the racial classification of the Japanese was considerably unstable, and the Chinese were often classified as “white” before the United States Supreme Court held them racially ineligible for naturalization in 1922.15 Notwithstanding the naive realism reflected in some early judicial opinions interpreting the racial eligibility provisions of the naturalization act, racial formation is always highly unstable.

In order to provide the historical context needed to understand the racial eligibility cases, this chapter examines the relationship between race and citizenship in the United States from the nineteenth century through the early 1920s when the United States Supreme Court issued its only two opinions interpreting the racial eligibility provisions of the naturalization act in Ozawa and Thind. I begin by examining the period of territorial expansion during the nineteenth century when countless American Indians, Mexicans, Asians, and Pacific islanders—groups later held to be racially ineligible for naturalization—were collectively naturalized under the provisions of various treaties. Despite these collective naturalizations of Asians and other non-European residents in territorial expansion treaties, as anti-Chinese sentiment developed in the late nineteenth century an Asian exclusion policy emerged in interpretations of the racial eligibility provisions of the naturalization act. I examine the emergence of this policy and the interpretive approach adopted by the United States Bureau of Naturalization after its creation in the early twentieth century, then analyze the rhetorical significance of naturalization applicant Takao Ozawa’s expression of Japanese nationalism in Ozawa.

RACIAL INCLUSIVENESS DURING TERRITORIAL EXPANSION

Throughout the nineteenth century, the various treaties and legislative acts that annexed new territories to the United States reflect the contradictions in the nation’s policy regarding racial eligibility for citizenship as the nation made citizens of American Indians, Mexicans, Asians, and Pacific islanders by collectively naturalizing the inhabitants of most newly annexed territories without regard to race. The Louisiana Purchase of 1803 granted American citizenship to all inhabitants of the Louisiana territory, including those of French, Spanish, and Mexican descent as well as a substantial number of free blacks and mulattoes.16 Similarly, the annexations of Florida, Texas, and southern portions of Arizona and New Mexico in 1819, 1845, 1848, and 1853 provided American citizenship to all of the citizens of the annexed territories and in most cases to all of the inhabitants without regard to race.17 As United States Supreme Court Justice John McLean noted in his dissenting opinion in Dred Scott, on the question of citizenship the nation had “not been very fastidious” because it “made citizens of all grades, combinations, and colors” during its many territorial expansions.18 The territorial expansions reflect the fact that the need to clearly define the nation’s borders transcended any racial difference that may have been perceived.

The collective naturalization provisions of the annexations were occasionally observed to conflict with the racial eligibility provisions of the naturalization act, but the conflicts were mostly ignored. With regard to Mexicans, the judiciary even relied on their collective naturalization in various annexation treaties to hold them racially eligible for naturalization under the naturalization act. In an 1897 opinion in In re Rodriguez, Judge Thomas Maxey of the United States District Court for the Western District of Texas justified his decision that a “pure-blooded Mexican” with no Spanish descent was racially eligible for naturalization based largely on the fact that the Adams-Onís Treaty, the Treaty of Guadalupe Hidalgo, and the Gadsden Treaty had collectively naturalized numerous Mexican inhabitants:

A reference to the constitution of the republic of Texas and the constitution, laws, and treaties of the United States will disclose that both that republic and the United States have freely, during the past 60 years, conferred upon Mexicans the rights and privileges of American citizenship … by various collective acts of naturalization.

Because Rodriguez was the only published judicial opinion regarding Mexican racial eligibility for naturalization, it mostly settled the question of Mexican racial eligibility for naturalization under the naturalization act by serving as precedent for later cases. Although some have questioned whether Maxey actually found Mexicans to be “free white persons” in Rodriquez because the opinion does not explicitly state the finding, in 1944 the Board of Immigration Appeals explicitly found that a native and citizen of Mexico was “a person of the white race” for purposes of their eligibility for citizenship.19

After the Civil War, the United States also reaffirmed the English common law rule of birthright citizenship by which a person’s citizenship is determined by their place of birth rather than their parents’ nationality.20 In 1868, the Fourteenth Amendment to the United States Constitution granted citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.”21 Although the reaffirmation of birthright citizenship in the Fourteenth Amendment was specifically designed to reverse the United States Supreme Court’s decision in Dred Scott, which had held that African Americans were constitutionally incapable of becoming citizens, the principle more broadly repudiated racial eligibility criteria for citizenship with regard to anyone born in the United States. In 1884, the United States Supreme Court held that American Indians who maintained their tribal relations could not become citizens by birth under the Fourteenth Amendment because they were not “subject to the jurisdiction” of the United States,22 but in 1897 the Supreme Court held that a child born in San Francisco of Chinese parents became a United States citizen under the Fourteenth Amendment because “every citizen or subject of another country, while domiciled here, is within the allegiance and protection, and consequently subject to the jurisdiction, of the United States.”23 As in the nation’s territorial expansions, one consequence of the Civil War was to reaffirm birthplace citizenship as part of an effort to establish national unity. Although racial discrimination in the form of racial segregation laws, poll taxes, literacy tests, and other measures continued to undermine the full exercise of citizenship rights by racial minorities, the Fourteenth Amendment afforded formal legal protection to every person born in the United States without regard to race.

The history of American Indian citizenship during the nineteenth and early twentieth centuries also reflected the contingency of racial eligibility for citizenship on threats to the nation, culminating in the unilateral naturalization of all noncitizen Indians as a...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Chapter One Mongolian Invaders, the Bureau of Naturalization, and Ozawa
• Chapter Two The Ghadr Party and the Indian Caste System in Thind
• Chapter Three The Armenian Genocide, Martyrdom, and Cartozian
• Chapter Four World War II Alliances in Asia and the End of Racial Eligibility for Naturalization
• Conclusion Race, Sovereignty, and Transcendence
• Notes
• Bibliography
• Index
• Back Cover