Nationality Act of 1940 – dwkcommentaries

To my great amazement, I recently have discovered that the United States has had a long history of racism in its statutes regarding U.S. citizenship. In the words of Blum and Haney-Lopez, “From this country’s inception [in 1789-1790], the laws regulating who was or could become a citizen were tainted by racial prejudice. Birthright citizenship, the automatic acquisition of citizenship by virtue of birth, was tied to race [from 1790] until 1940. Naturalized citizenship, the acquisition of citizenship by any means other than through birth, was conditioned on race [from 1790] until 1952.”[1]

The following is a brief summary of these laws.

Birthright Citizenship

“The U.S. Constitution as ratified did not define the citizenry, probably because it was assumed that [U.S. law included] the English common law rule of jus soli,” i.e., “citizenship accrues to ‘all’ born within a nation’s jurisdiction.”

The Supreme Court, however, in its now infamous 1857 decision in the Dred Scott case held that Scott, an enslaved Negro of the African race whose ancestors were brought to the U.S. and sold as slaves, and all other Blacks, free and enslaved, were not and never could be citizens because they were a “subordinate and inferior class of beings.” Therefore, Scott did not have standing to sue in federal court to claim a right to his freedom. (Scott v. Sanford, 60 U.S. 393 (1857).)

This was changed after the Civil War in the Civil Rights Act of 1866, 14 Stat. 27 (1866), which stated that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” This was confirmed in Section 1 of the Fourteenth Amendment to the U.S. Constitution, adopted in 1868: “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.” https://www.law.cornell.edu/constitution/amendmentxiv

This statute and constitutional amendment, however, left two minorities in the cold on birthright citizenship.

The first group was children born in the U.S. to non-citizen parents. Their status was unclear until the U.S. Supreme Court in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898), held that such children were birthright citizens of the U.S.

The second group was Native Americans who were born in the U.S. Here, the Supreme Court rendered a negative opinion in 1884 in Elk v. Wilkins, 112 U.S 94 (1884). It held that Native Americans owed allegiance to their tribes and thus did not acquire U.S. citizenship upon birth.

Thereafter Congress granted such citizenship in piecemeal fashion, tribe by tribe, until 1924, when it enacted the Indian Citizenship Act (Snyder Act), 43 Stat. 233 (1924), which stated “that all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States.”

This statute, however, left unclear whether it covered individuals born after its effective date. That issue was finally resolved in section 201(b) of the Nationality Act of 1940, which stated, “The following shall be nationals and citizens of the United States at birth . . . A person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe.”

Citizenship by Naturalization

Although the Constitution, as just noted, did not originally define the citizenry, it did make an explicit grant of authority to Congress to establish the criteria for granting citizenship after birth. That is found in Article I, Section 8 of the Constitution, which provides that Congress has the power “To establish an uniform Rule of Naturalization.” From the very start in 1789-1790 through 1952, Congress exercised this power in a manner that burdened naturalization laws with racial restrictions that tracked those in the law of birthright citizenship. This history can be seen in two periods: 1790-1870 and 1870-1952.

1790-1870

In 1790, only a few months after ratification of the Constitution, the very First Congress of the U.S. adopted the “Act to establish an uniform Rule of Naturalization,” 1 Stat. 103 (1790). It provided that naturalization was limited to immigrants who were “free white persons of good character.” (Emphasis added.) Although the statute did not define that term, it clearly excluded Native Americans, indentured servants, slaves, free blacks and Asians from this method of obtaining U.S. citizenship.

This sole requirement of being a “white person” for naturalization remained in the U.S. statutes until after the Civil War in 1870 when Congress adopted a statute that made it possible for naturalization for “aliens of African nativity and to persons of African descent.” This was contained in section 7 of An Act to amend the Naturalization Laws and to punish Crimes against the same, and for other purposes,” 16 Stat. 254 (1870).

In the 1870 congressional debate over this change, Senator Charles Sumner argued that racial barriers to naturalization should be struck altogether. However, racial prejudice against Native Americans and Asians forestalled the complete elimination of the racial prerequisites. For example, one senator argued against conferring “the rank, privileges, and immunities of citizenship upon the cruel savages [Native Americans] who destroyed [Minnesota’s] peaceful settlements and massacred the people with circumstances of atrocity too horrible to relate” in the U.S.-Dakota War of 1862.[2] Another senator wondered “’whether this door’ [of citizenship] shall now be thrown open to the Asiatic population,’ warning that to do so would spell for the Pacific coast ‘an end to republican government there, because it is very well ascertained that those people have no appreciation of that form of government; it seems to be obnoxious to their very nature; they seem to be incapable either of understanding or carrying it out.’”

1870-1952

Thus, as of 1870, being either “white” or “African nativity or descent” was a requirement for naturalization, and these options remained in U.S. law until 1952.

Other individuals, particularly those from Asia, were not eligible with this 1870 change in the law. Moreover, starting in 1882, Congress passed a series of laws that specifically excluded from naturalization individuals from China, Japan, India and the Philippines although the laws never specifically labeled them as “Asians” or “Orientals” or another supposed racial category. Thus, in 1922, the U.S. Supreme Court in Ozawa v. United States, 260 U.S. 178 (1922), held that a Japanese man was not “white” or Caucasian and thus ineligible for naturalization.

The next year in Thind v. United States, 261U.S. 204 (1923), the Court decided that an immigrant from India was not “Caucasian” and thus not eligible for naturalization. Important for the Court was the criterion of assimilability to separate the desirable immigrants from the undesirable ones: Asian Indians were distinguished from the swarthy European immigrants, who were deemed ‘readily amalgamated’ with the immigrants ‘already here.’

This limitation of naturalization to persons who were “white” or “African nativity or descent” eroded during World War II as a result of political pressures on the U.S. associated with its well-founded opposition to the horrendous racism of Nazism. In 1940 eligibility was extended to “descendants of races indigenous to the Western Hemisphere;” in 1943, to Chinese persons; and in 1946, to persons from the Philippines and India.

Thus, at the end of World War II, U.S. laws permitted naturalization for:

(1) white persons. persons of African nativity or descent, and persons of races indigenous to the continents of North or South America or adjacent islands and Filipino persons or persons of Filipino descent;
(2) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (1);
(3) Chinese persons or persons of Chinese descent; and persons of races indigenous to India; and
(4) persons who possess. either singly or in combination, a preponderance of blood of one or more of the classes specified in clause (3) or, either singly or in combination, as much as one-half blood of those classes and some additional blood of one of the classes specified in clause (1).

All of this complexity was eliminated in 1952 when Congress enacted the McCarran-Walter Act, 60 Stat. 163, 239 (1952), which states in section 311, “The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married.”

Conclusion

Although I was a history major at an excellent U.S. college, studied law for three years at a prominent U.S. law school, practiced law for 35 years, including some exposure to U.S. immigration law, and taught in another prominent law school for nine years, I am embarrassed to admit that until recently I was unaware of this history of racism in U.S. laws regarding U.S. citizenship beyond the post-Civil War changes regarding African-Americans.

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[1] Except for specific statutes cited and discussed, this account is primarily based upon Blum & Haney-Lopez, Racial Restrictions in the Law of Citizenship, Ch. 2. See also Braziel, History of Migration and Immigration Laws in the United States (Spring 2000).

Tag: Nationality Act of 1940

Long History of Racism in U.S. Laws Regarding United States Citizenship