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Race, Nationality, and Reality: INS Administration of Racial Provisions in US Immigration and Nationality Law Since 1898, Part 7 of 8

by Marian L. Smith

The evidence that INS administrators were dissatisfied with the agency's racial classification systems, shown by the revision of naturalization forms and elimination of Hebrew from the List of Races or Peoples, makes another INS decision of the time appear even more curious. The Alien Registration Act of 1940 charged the INS with myriad new responsibilities, foremost among them the registration and fingerprinting of every alien resident in or entering the United States. The law specifically directed the commissioner to design a form for that purpose, a form that had to include the alien's date and place of entry, their present and future activities within the United States, how long they expected to remain, and any criminal record. Any additional information on the form was left to the discretion of the commissioner and the attorney general.50 The Alien Registration Program thus afforded the INS an opportunity to eliminate the question of race from at least part of its operations.

Rather than avoid the traditional problems of recording race, the INS compounded them by designing a form with five choices for the registrant: White, Negro, Japanese, Chinese, and Other. The reasons behind this choice are, for the moment, inexplicable. The racial options did not correspond to either the List of Races or Peoples, nor did they match those races then eligible for naturalization. Neither would they help or serve to identify anticipated enemy aliens should the United States be drawn into the expanding war in Europe and Asia. They were, as one employee of the Alien Registration Division complained, "a mixture of race and nationality." Unwritten statistical coding rules for Alien Registration data caused various responses to be re-coded as white, and so many disparate answers remained in the "other" category it was rendered meaningless. "For statistical purposes the race code in present use is worthless," reported the coding section, and "the fault lies in the confusion of race and nationality for this item on the registration forms." Not surprisingly, when finally published, the Alien Registration data tables contained no information as to race.51

The INS would not be free of racial considerations, of course, as long as nationality law contained racial requirements for naturalization and immigration law excluded those ineligible to naturalize. While Board of Immigration Appeals decisions began to clarify the meaning of "white persons" for INS officials, Congress at the same time introduced equally confusing language to §303 of the nationality law (the section replacing §2169 in 1940). As noted above, the Nationality Act of 1940 extended eligibility to citizenship to "descendents of races indigenous to the Western Hemisphere." In 1943 Congress repealed the Chinese Exclusion Act and made Chinese eligible for naturalization. And in 1946, Congress extended the same eligibility to Filipinos or persons of Filipino descent and "persons of races indigenous to India."52 Again, language sufficiently clear for Congress came into question in the courts. Just as they previously wrestled with the meaning of the term "white persons," the courts and INS were now called upon to determine the exact limits of the Western Hemisphere, and to decide which races were indigenous to India.

When Congress included descendents of races indigenous to the Western Hemisphere in the Nationality Act of 1940, it was understood by Congress and INS officials the intention was to make Native Americans eligible to citizenship.53 But the provision was soon adopted to support the petitions of various Pacific Islanders for naturalization. A Polynesian born in the Society Islands applied for citizenship in California in 1944, claiming to be of a race indigenous to the Western Hemisphere. The court came to two conclusions. First, though the Society Islands may in fact be within the Western Hemisphere, ethnologists traced the origin of the Polynesian race to the Eastern Hemisphere and the applicant was thus ineligible for naturalization (note well: The exact opposite of this argument supported the 1925 Ali decision). Second, there seemed no common understanding of the term "Western Hemisphere."54

The same question came before the INS in relation to immigration procedures. Noting that conventional maps placed New Zealand in the Western Hemisphere, the Department of State requested an INS decision on whether Maoris, native to New Zealand, now qualified for immigration visas or if they were still ineligible to citizenship. The INS general counsel, L. Paul Winings, began his long consideration of the subject by first determining that Maoris were neither white persons nor persons of African nativity or African descent. He then

    sought to discover the prevailing geographical opinion concerning the limits of the Western Hemisphere. However, this quest led me to the conclusion that there is no universally accepted formula which fixes the bounds of the so-called Western Hemisphere. Most of the authorities consulted had no reference whatever to the Western Hemisphere, and by this silence eloquently proclaimed their rejection of any such geographic formula.

Cartographers' conventions, it seemed, were no more reliable than those of the ethnologists.

Winings was left to trace Congress's original intent in the use of the words "Western Hemisphere." He found that since adoption of the phrase in connection with the Monroe Doctrine in the 1820s, Western Hemisphere referred to North, Central, and South America and islands adjacent thereto. Such was the case not only in foreign policy statements, but also in international trade agreements and, most important, in immigration law. Certain immigration law exemptions applied to natives of Western Hemisphere countries had long been interpreted by the INS as applying to natives of the Americas and adjacent islands. Winings concluded, then, that Congress in neither 1790 nor 1940 intended Maoris to be eligible for naturalization.55

50 Alien Registration Act of June 28, 1940, §34(a), 54 Stat. 670.

51 Memorandum re Coding "Race"-Item 5(c), Mrs. Delin to Mr. Charlesworth, Apr. 5, 1944, Alien Registration Statistics File; "Alien Registration, 1940," 11 vols. (original tables, INS History Library, Washington, DC).

52 Nationality Act of October 14, 1940, 54 Stat. 1137; Act of December 17, 1943, 57 Stat. 601; Act of July 2, 1946, 60 Stat. 416.

53 Nationality Laws of the United States. A Report . . . in Three Parts. Part 1, Proposed code with explanatory comments (1939) V-VII; Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, Apr. 27, 1945, 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB. See also M. Smith, "The INS and the Singular Status of North American Indians."

54 "Summaries of Recent Court Decisions," INS Monthly Review, 2 (October 1944): 44.

55 Such exemptions involved Head Tax since the 1890's, Visa requirements since 1921, and travel control provisions since 1918. Memorandum re Racial eligibility for naturalization of Maoris, L. Paul Winings to Commissioner Ugo Carusi, April 27, 1945, p. 14, file 56013/383, box 1596, accession 85-58A734, RG 85, NAB.

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

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

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