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
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.
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.
- §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). ↩