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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 3 of 8

by Marian L. Smith

Whether to apply a "color test" or to determine whiteness by reference to an ethnological table of the families and races of mankind was the basic question put to naturalization officials for years thereafter. Court officers, attorneys, and private citizens regularly requested a ruling from the Department of Commerce and Labor on the question. But, as Naturalization Division Chief Richard K. Campbell admitted in 1907, such a ruling would not "be considered authoritative if one were adopted," because the ultimate power to decide the issue lay with the courts.[12]

At the same time, Campbell understood the 1906 naturalization act to have given his agency a clear mandate to guide naturalization courts toward uniformity. When the various U.S. attorneys who represented the government in naturalization cases asked Campbell how they should proceed without a definitive court ruling, he began to offer the opinion of his office regarding racial eligibility to naturalization and to suggest a course of action for the attorneys. While Campbell's writings indicate that he personally considered "off-color races not only unfit but as well undesirable additions to the body politic," his strategy consisted of efforts to force courts into making decisions one way or the other. He began in August 1908 by advising Andrew Balliet, assistant U.S. attorney in Seattle, to direct clerks of court to refuse to accept declarations of intention or file petitions for naturalization on behalf of "Hindoos," or East Indians. In doing so, Campbell hoped to push the applicants toward a higher court that might issue a precedent decision.[13]

Beyond his effort to coordinate the activities of U.S. attorneys, and through them influence clerks of courts, Campbell could offer little in the way of practical instruction. He received numerous queries from clerks like J. W. Porter, clerk of the circuit court, Champaign County, Illinois, who asked if the division could supply a "list of countries from which, and from which only, natives may apply for naturalization?"[14] Campbell replied that there was no list, nor would such be of any "practical value." Rather, a list of countries, representing nationalities, "would be very apt to mislead you" since §2169 does "not apply to countries or to natives of any country, solely, as white persons may come from any country to the United States and be eligible to citizenship."[15] Like the courts, the Naturalization Division could offer no clear guidance on Clerk Porter's practical question.

Copies of Richard Campbell's earlier letter to U.S. Attorney Balliet, which implied that clerks of court were not to accept naturalization applications by any person racially ineligible to citizenship, eventually forced Campbell and the division into retreat. In the next year, 1909, New York immigrant advocate Justin S. Kirrah launched a campaign on behalf of Syrians, Turks, East Indians, and others deemed non-white by Campbell. In a complaint to the secretary of commerce and labor, Kirrah accused the division chief of "personal malice" toward certain ethnic groups and of interfering with work of the courts and "abuse of his office and usurpation of functions appertaining to Federal officials other than himself."[16] At the same time, the Board of Delegates on Civil Rights of the Union of American Hebrew Congregations also complained to the secretary about the department's denial of naturalization to Turks, Syrians, Armenians, Palestinians, and Jews, pointing out that if the ruling were upheld, "it would, if living, exclude David and Isaih [sic] and even Jesus of Nazareth himself."[17]

Secretary of Commerce and Labor Charles Nagel soon admonished the chief of naturalization for pretending to decide for the courts whether a person was racially qualified to apply for naturalization, advising the division to "be concerned more with the present reputation than with the original nativity of the applicant." Campbell responded by mailing a new letter of instructions to each chief naturalization examiner (representatives of the division in naturalization hearings). He admitted that racial eligibility was a question of law "and is not a question which this Department or any officer thereof is authorized to decide." On the other hand, it remained the examiners' duty to advise the court of each and every petitioner's race.[18] Though the 1906 Naturalization Act put the Naturalization Division in charge of "all matters" related to naturalization, this 1909 episode demonstrated the limited power held by the administrative agency at that time. The division and the courts actually shared, or enjoyed divided, authority over various aspects of the naturalization process. And as Campbell later remarked, "[d]ual authority and responsibility never have been and never will be productive of anything but confusion."[19]

Unless the courts issued enough decisions to determine the eligibility of every possible "race" that might apply for citizenship, or until the Supreme Court might issue broad guidance on the definition of white persons, federal officials continued to live amid uncertainty. Those at the Department of Interior's General Land Office were frequently embarrassed by the fact that they accepted homestead applications from aliens racially ineligible to citizenship, then had difficulty issuing final patents when the homesteader was unable to naturalize. Often, judges frustrated with contradictory federal rules would admit racially ineligible homesteaders to citizenship as a protest to conflicting federal practices.[20]

Other absurd cases continued to arise, like the case of Carmen Garcia, a Mexican teacher at the Government Indian School in Riverside, California. While employed by one arm of the U.S. government to teach Americanization on the reservation, Garcia was found racially ineligible to naturalize by another arm of that government because her ancestry was three-quarters Papago Indian.[21] In correspondence with U.S. attorneys, Campbell sought cases in which an objection to the naturalization of a racially ineligible applicant might make its way to the Supreme Court. Attorneys, however, were understandably reluctant to defend such objections without evidence, and there was no settled opinion on what constituted evidence of race. The courts increasingly turned to science for an answer to the question, and the state of early twentieth-century American ethnology was peculiarly qualified to confuse the issue further.

When trying to advise a local judge about the racial eligibility of "Hindoos," or East Asians, the assistant U.S. attorney in Seattle consulted a scientific library in an effort to learn whether or not East Indians were white. He learned that ethnologists considered East Asians to be "from Aryan stock," specifically "Caucasic" or "Caucasian." He then advised the court to accept a Hindu's application, since it seemed "from the best source of information obtainable by this office on that subject that they are included in the term 'Caucasian.' If that is true they have a right to make their declaration." Expressing some doubt that his action was appropriate, the attorney wrote the Division of Naturalization for Campbell's opinion.[22]

Campbell frequently voiced his disregard for "ethnologists, of whom the authors of the statutes had as little knowledge as they did of this rather speculative science." Campbell said the division based its determination that Hindus were not white persons on previous court decisions holding that Indians, Chinese, Japanese, Hawaiians before annexation, and natives of British Burma were all nonwhite Further, "prior to the Civil War negroes, of whatever shade, were ineligible." Arguments that Hindus were Caucasians were irrelevant, for it was "immaterial whether the writer is ethnically an Aryan or a Mongolian. His claim in that respect is probably correct. The fact is that he is not a white person." To determine who was and was not white, Campbell was happy to leave the issue to the courts, whose decisions would be based not on science, but on "common understanding":

    The law refers to persons, and confines the right to become naturalized to those who are white. It does not seem to me that the introduction of expert testimony would result otherwise than it does where testimony of this character is used to establish any doubtful point, the question of sanity, for example. 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 Korean.

The result desired is one that can be reached definitely, not by any general rule, but by a slow process of elimination.

Campbell's approach now agreed with that taken by the lower courts, which considered each race or ethnic group on a case-by-case basis. The accumulation of court decisions over time, however, did not necessarily bring clarity. Campbell observed in 1916 that the language of §2169 "has been fruitful of much honest diversity of construction by the public and by the courts . . . in the absence of legislative attempt to remove its obscurity."[23]


[12] Richard K. Campbell to Charles D. Thompson, Dec. 7, 1907, ibid.

[13] Campbell to Andrew J. Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26, RG 85, NAB.

[14] J. W. Porter to Chief, Division of Naturalization, Sept. 29, 1908, file 19783/1-24 (19783/16), box 1572, Entry 26, RG 85, NAB.

[15] Campbell to Porter, Oct. 19, 1908, ibid.

[16] Justin S. Kirrah to Secretary of Commerce and Labor, Nov. 1, 1909, file 19783/43 part 1, box 1572, Entry 26, RG 85, NAB.

[17] Simon Wolf to Secretary of Commerce and Labor, Nov. 5, 1909, ibid.

[18] Charles Nagel to Campbell, Nov. 11, 1909, and Campbell to all Chief Naturalization Examiners, Dec. 3, 1909, ibid.

[19] US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1917 (1917), p. 11.

[20] Report of Robert A. Coleman, Chief Naturalization Examiner, St. Paul, MN, to Campbell, July 1, 1910, file 457177 part 1, box 1698, Entry 26; Acting Secretary of Commerce and Labor to Secretary of Interior, Jan. 8, 1909, file 19783/18, box 1572, Entry 26, RG 85, NAB.

[21] Correspondence re Carmen Garcia (1909), file 19783/20, box 1572, Entry 26, RG 85, NAB.

[22] Assistant US Attorney, Seattle, to Chief, Division of Naturalization, July 28, 1908, file 19783/13, box 1572, Entry 26, RG 85, NAB.

[23] Campbell to Balliet, Aug. 6, 1908, file 19783/1-24 (19783/13), box 1572, Entry 26; Campbell to John Young, Clerk, US Supreme Court, file 19783/1-24 (19783/14), box 1572, Entry 26, RG 85; Campbell to Charles R. Beattie, July 19, 1909, file 19783/25, box 1572, Entry 26, RG 85, NAB; US Bureau of Naturalization, Annual Report of the Commissioner of Naturalization, 1916 (1916), p. 7.


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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