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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 1 of 8

by Marian L. Smith

In recent years, scholars, scientists, and policymakers have turned increasing attention to matters of race as a factor in our society, the judicial system, and in American history.

The history of U.S. immigration and nationality law demonstrates how race became a factor in determining who could come to America and who could not. Studies of Chinese exclusion laws or the old immigration "quota system" trace a tradition of racist immigration policy. The Supreme Court reinforced this policy in the 1920s with a decision stating that Americans shared a "common understanding" of who was and was not "white," and by extension shared a "common understanding" of who did and did not belong in the United States.

Despite Supreme Court pronouncements, federal officials charged with administration of U.S. immigration and nationality laws were keenly aware that not all Americans shared the same understanding at any given time. More important, any "common understanding" of race or ethnicity shared by a majority of American society evolved over time, while the law remained locked in eighteenth century language.

For officers of the Immigration and Naturalization Service and its predecessor agencies, issues and problems of race were more practical than theoretical. Immigration laws barred the entry of the poor and sick, and Ellis Island immigrant inspectors could check to see that arriving immigrants had adequate money while Public Health Service physicians checked the immigrants' health. But how did they decide who was or was not white? What rules did they follow? How could those rules be changed?

When Congress finally eliminated the racial provisions in U.S. immigration and nationality law in the 1940s and 1950s, generations of federal practice and procedure did not instantly disappear without a trace. Over the years, other government agencies had developed their own racial classification systems, often partially borrowed from INS experience, and such systems could take on lives of their own.

Thus a review of how INS officials met the challenge of interpreting racial provisions in the law, and how the courts, Congress, and an activist public helped shape that interpretation, is necessary to fully appreciate current debates over race. It may also be helpful in determining whether we share any "common understanding" on such matters today.

* * *

After 1790, and throughout the nineteenth century, Congress legislated separately regarding immigration and nationality. One congressional committee drafted nationality law, defining U.S. citizenship and how it might be lost or gained. Another committee addressed immigration issues and only began serious attempts to govern or regulate immigration as the nineteenth century came to a close. With the exception of the Chinese Exclusion Act of 1882, the two bodies of immigration and nationality law were not coordinated, nor did either make any reference to the other.

During the antebellum years and for a time thereafter, immigration and nationality law appeared to agree and serve national goals. The United States achieved a policy of free and open immigration largely by failing to legislate on the subject. The Steerage Act of 1819 remains Congress's most aggressive action regarding immigration prior to 1875, and the 1819 law worked to encourage immigration by ensuring safe and healthy conditions aboard passenger ships.[1] As the nation marched west, a regular supply of immigrants from Europe arrived to occupy new territories and hold them for their new nation.

Nationality law allowed for political inclusion of new arrivals into the United States. Between 1790 and 1802, Congress established simple rules for naturalization and facilitated the process by granting naturalization authority—which belonged originally to the legislative branch—to "any court of record."[2] Naturalization requirements included five years' residence in the country, "good moral character," and that applicants be "free white persons." Such language in 1802 preserved the constitutional understanding of citizens as white persons and exclusion of African Americans and "Indians not taxed" from citizenship. U.S. nationality law generally transformed northern and western European immigrants into U.S. citizens. For most of the nineteenth century, Europe was the primary source of immigration to the United States, and it no doubt seemed the law would be adequate forever.

The fourteenth amendment declared all persons born within the United States to be U.S. citizens and worked to bestow citizenship on freedmen. Congress went further by amending naturalization requirements in 1870 and extending naturalization eligibility to "aliens being free white persons, and to aliens of African nativity and to persons of African descent."[3] The 1870 revision of §2169, U.S. Revised Statutes, laid the foundation for future confusion over racial eligibility to citizenship. The rule did not state that white persons and black persons may naturalize, nor did it limit naturalization to those of European or African nativity or descent. Rather, the 1870 rule appeared to apply a color test—white persons and those with African origins (i.e., black)—but did so by reference to geography. After extending naturalization to blacks (as Africans) in 1870, Congress banned the naturalization of Chinese in 1882. The Chinese Exclusion Act of that year, which is primarily an immigration law, included a section directing that "hereafter no State court or court of the United States shall admit Chinese to citizenship; and all laws in conflict with this act are hereby repealed."[4] The 1882 law clearly directed the courts not to naturalize any Chinese, but it did not explain whether "Chinese" indicated race or nationality.

There was relatively little controversy or litigation surrounding racial qualifications for citizenship before the late nineteenth century. As others have explained, federal citizenship was of secondary importance to state citizenship until some time after the Civil War.[5] Yet as sources of American immigration shifted and increasing numbers of people came from southern and eastern Europe, the subcontinent, and Asia, their desire to naturalize confronted the racial limitations in U.S. nationality law. Because naturalization remained a judicial function, the courts were left to decide who was or was not a white person, or an alien of African nativity, or person of African descent.

In this question, as in all naturalization matters, the courts had little guidance. The delegation of naturalization authority to "any court of record" in 1790 led to a motley array of more than five thousand high and low courts exercising such jurisdiction by the turn of the twentieth century. Case law was their only guide, for there was no central or national authority to answer judges' questions regarding the finer points of naturalization law or procedure. Methods adopted by late nineteenth-century courts to determine qualifications for citizenship varied widely. Just as courts in some localities interpreted the "good moral character" requirement differently, judges in different jurisdictions had differing ideas of what constituted "whiteness." Many thousands of elected county judges across the nation simply relied on their "common understanding" of race, an understanding presumably shared by the local community.


Notes

[1] Steerage Act of March 2, 1819, 3 Stat. 489 (1819).

[2] Act of March 26, 1790, 1 Stat. 103; Act of 1795, 1 Stat. 414; Act of June 18, 1798, 1 Stat. 566; Act of April 12, 1802, 2 Stat. 153.

[3] Act of July 14, 1870 (amending §2169 Rev. Statutes).

[4] Chinese Exclusion Act of May 6, 1882, §14, 22 Stat. 58.

[5] Ian F. Haney Lopez, White by Law: The Legal Construction of Race (1996), p. 50.


About The Author

Marian L. Smith is the senior historian for the U.S. Immigration and Naturalization Service, Washington, D.C. She writes and speaks about the history of the agency. The author thanks Roger Daniels of the University of Cincinnati for his encouragement and good advice in the writing of this article. Readers may contact Ms. Smith at Marian.L.Smith@usdoj.gov.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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