Page 13 - 2024 March April Magazine

set the stage with a brief history of race and naturalization in America.
1776: Declaration of Independence declared: “All persons born or naturalized in the United States ... are citizens.... And are entitled to the equal protection of the laws.” But we fell short of that.
1787: The U.S. Constitution expressly gave Congress power to establish a uniform rule on naturalization. But the Constitution did not define citizenship.
1790: Pursuant to this power, Congress passed the first naturalization law for the U.S. , the Naturalization Act of 1790 restricting naturalization to “free white persons” of “good moral character.” Would I have been considered white? If your answer is yes, see me after class.
1819: Congress passes the Indian Civilization Act of 1819 to assimilate Native Americans. This law provided government funds to subsidize Protestant missionary educators in order to convert Native Americans to Christianity. The act did not grant citizenship.
1857: The U.S. Supreme Court decided the infamous Dred Scott case. The Court upheld the Fugitive Slave Act and declared that Dred Scott, a freed formerly enslaved person, was not a citizen under the Constitution. The Court used this rationale to declare that the federal courts had no jurisdiction to hear Dred Scott’s case, which rested on the federal courts’ jurisdiction to hear cases from “citizens of different states.”
The Court used the Declaration of Independence to interpret the Constitution, and concluded that the writers of the Declaration of Independence did not intend to include Black people in the word “citizen:”
The Court then went on at length about how other courts had held similarly views, and how other states had similarly racists laws. They used some particularly horrible language in doing so:
“[A] perpetual and impassable barrier was intended to
be erected between the white race and the one which they had reduced to slavery, ... and which they then looked
upon as so far below them in the scale of created beings, that intermarriages between white persons and negroes or mulattoes were regarded as unnatural and immoral, and punished as crimes, not only in the parties, but in the person who joined them in marriage."
The Court also pointed out that only two clauses in the Constitution mention Black people, and in both, they are treated as property.
1868: 14th Amendment, Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the
laws. – But one still had to be white to naturalize.
As an additional aside, Texas attempted to segregate Latinos and deny 14th Amendment protection to Latinos in the 1950s.
Mexican residents of the territory were granted citizenship as part of the treaty that ended the Mexican American war in 1848 on the premise that Latinos are white. Since Latinos were legally white, and had to have been to be naturalized, Texas argued in the 1950’s it was ok to discriminate against them or at least such conduct was not a 14th Amendment violation.
1878: In In re Ah Yup, the Ninth Circuit ruled that Chinese individuals are ineligible for naturalized citizenship. The Court ruled that Mongolians could not be classified as “white,” and made it clear that the existing provisions prevented all except “whites” and individuals of African descent from naturalizing. The court noted that this was the first time a Chinese individual had ever applied for naturalization.
1882: The Chinese Exclusion Act passed, by which Congress prohibited Chinese immigration. Congress also banned entry of “lunatics” and “infectious disease carriers.”
Native Americans were still denied citizenship. Neither the “Indian Tribes” nor “individual members of those Tribes,” no more than “other foreigners” could “become citizens of their own will.”
1902: Chinese Exclusion act was made permanent; Chinese population sharply declined.
1917: Immigration Act of 1917 (a.k.a., the Asian Barred Zone Act) restricted immigration from southern and eastern Asia and the Pacific islands, and excluded immigration from Japan and the American territories of Guam and the Philippines. Also added a literacy test to apply for naturalization. Because these geographic regions were home to many of the world’s Buddhists, Hindus, Muslims, and Sikhs, these religious groups were effectively shut out of the U.S.
1922: The Supreme Court decides Ozawa v. United States. The Court concluded that Takao Ozawa, a Japanese-American who was born in Japan but lived in the United States, was ineligible for naturalization. The law at the time only allowed “free white persons” and “persons of African descent” under the 14th Amendment to naturalize. Ozawa claimed he classified as a free white person because his skin was naturally light. The court relied on other federal court cases that had held Japanese individuals are not Caucasian.
Manifestly the test [to determine whiteness] afforded by the mere color of the skin of each individual is impracticable, as that differs greatly among persons of the same race. . . The federal and state courts, in an almost unbroken line, have held that the words ‘white person’ were meant to indicate only a person of what is popularly known as the Caucasian race.
Continued on next page.
March/April 2024 | PIERCE COUNTY LAWYER 13