Prologue Magazine

Summer 2002, Vol. 34, No. 2

Race, Nationality, and Reality:
INS Administration of Racial Provisions in U.S. Immigration and Nationality Law Since 1898, Part 1

By Marian L. Smith

Dictionary of Races or Peoples The Dictionary of Races or Peoples, prepared in 1911, was used by INS officials until the early 1950s. (INS)

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.

It was the lack of uniformity among naturalization courts and procedure, and the fraud it bred, that underlay Congress's establishment of the U.S. Naturalization Service by the Basic Naturalization Act of 1906 (34 Stat. 596). The law placed the Bureau of Immigration and Naturalization in "charge of all matters concerning the naturalization of aliens," with the general purpose of promoting uniform naturalization practices nationwide. While this seemed a clear mission, bureau officers would soon learn that influencing the courts— especially nonfederal courts— presented a persistent obstacle. Furthermore, inconsistencies within nationality law would prove difficult to reconcile. Among the most difficult was the issue of racial eligibility to citizenship.

As the bureau began its work, it found racial eligibility already a complicated subject. Though §2169 contained the broad rule regarding white persons and persons of African descent, an act of April 9, 1866, and the fourteenth amendment to the Constitution decided "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States." In 1898 the Supreme Court confirmed that the amendment applied to the U.S. -born children of Chinese and to others prohibited by law from becoming naturalized.6 Thus §2169 set racial qualifications for naturalization only; it did not apply to citizenship conferred by birth. Congress also, at times, ignored §2169 and used its original authority over naturalization to extend U.S. citizenship to groups of racially ineligible aliens. Numerous Native Americans were naturalized by treaty during the nineteenth century as were Chinese-born citizens of Hawaii at the time of annexation.7

The 1906 naturalization law retained §2169 limiting racial eligibility to citizenship, but as noted above, that language was not clear. By mixing references to color and geographic origin, the law displayed a then-popular confusion, or equation, of race with nationality. And if the vague language used to convey congressional intent regarding race was frustrating to federal naturalization officials at the turn of the century, the problem only worsened as time passed. Racial theory and terminology evolved each decade. "Racial" understanding associated with the eugenics movement was largely if not completely discredited after World War II, yet §2169 remained the nationality law of the land. Even when amended by Congress, the addition of equally vague language regarding additional "races" only served to increase Naturalization Service difficulties in administering the law.

While naturalization officials fielded questions about whether the term "race" meant color or nationality after 1906, they also encountered a third use of the term by immigration officials who operated within the same bureau. The U.S. Immigration Service developed its own conception of race during the late 1890s in an effort to improve immigration statistics at the port of New York. Ellis Island officials created a "List of Races or Peoples" with which to classify arrivals at that immigration station. The list of races was expressly "not intended to be an ethnological classification," nor was it to be "a history of an immigrant's antecedents." Rather, it was considered a practical tool devised by immigration officers familiar with the growing flow of immigrants into the United States, a tool that grouped together "people who maintain recognized communities." Statistics concerning such recognizable groups were deemed valuable as predictors of where such immigrants might settle and what occupations they would follow. An immigrant's race or people often decided these questions because, as one of its authors explained, "an immigrant is bound to ally himself with people of his own language already here and will enter the pursuits in which these people have found they can succeed."8

Immigration officials, and their List of Races or Peoples, employed the term "race" as we might use the term "ethnicity." Yet even among Ellis Island immigration officers, experts in identifying an immigrant's origin by his language or dress, "common understanding" was not universal. Rather, inspectors were as apt as the general public to use the terms race and nationality synonymously. Victor Safford, a medical doctor at Ellis Island and one author of the List of Races or Peoples, admitted there were "different ideas as to what these statistics are intended to show." As an experiment, he asked different immigrant inspectors to classify the same immigration passenger manifest record and found "confusion as to nationality, race and residence and a lack of agreement as to the territorial limits of the districts specified."9 For the moment, the relation of race to ethnicity or nationality was an academic question for Safford and the Immigration Service. Immigration law contained no reference to race beyond the exclusion of Chinese. When Congress did insert the word "race" into the Immigration Act of 1903, the purpose was to extend application of the List of Races or Peoples statistical scheme to all U.S. ports of entry.10

Until Congress instituted the national origins system of racial quotas in 1924, the "race question" remained primarily a headache for the Naturalization Service. As noted above, when the service began its work in 1906, the courts had not come to a clear definition of who was or was not a white person. The very existence of the Naturalization Division within the Bureau of Immigration and Naturalization, however, grew from Congress's mandate that it oversee and guide naturalization work by the courts. Naturally, those with questions about naturalization addressed them to the division. The clerk of the U.S. District Court in St. Louis, for example, asked in early 1907 whether the term "white person" in §2169 in the statutes and in the division's Naturalization Regulation 21 designated "only those whose color is actually white or does it further include all persons of what is ethnologically known as the white or caucasian race?"11

Race, Nationality, and Reality, Part 2
Race, Nationality, and Reality, Part 3

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.
Articles published in Prologue do not necessarily represent the views of NARA or of any other agency of the United States Government.
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