Whiteness on Trial: Asian Americans and the Right to Citizenship

“The color question is destined to get the United States in much trouble,” wrote John Mitchell, Jr., editor of the Black owned and Black run newspaper, the Richmond Planet, under a column titled “The Japanese Question” in July 1920.^[1] He continued, “The Japanese are now being ostracised and discriminated against in California and the National Administration appears to be helpless.”^{[2] *} Only a year after this was written, the Richmond Planet noted that “an interesting story is told in the following telegraphic dispatch:

Washington, Aug. 13. — The United States Supreme Court will be asked to declare the Japanese a white race, and thus entitled to American citizenship it was learned here today. The request will be made, it was said, in the case known as Takao Ozawa versus the United States, in which the petitioner is seeking to establish his right to become a naturalized American.”^[3]

While the 1790 Naturalization Act extended naturalized citizenship to “free white persons,” what rights did Asian immigrants like Takao Ozawa have to become naturalized?^† As historian Gary Okihiro writes:

As nonwhites, Asians and Pacific Islanders too were excluded from citizenship by the 1790 act. Three years before Dred Scott, California’s supreme court had ruled in favor of a white man, George Hall, who petitioned to overturn a conviction of murder. An immigrant to California, Hall had killed a Chinese miner while trying to extort gold from the man, and his conviction was based on testimony from Chinese witnesses. Hall’s petition flowed from a long tradition, beginning in colonial Virginia, holding that Indians and Africans were “incapable in law.” Hall’s attorney pointed out that California law disallowed American Indians and African Americans from testifying for or against whites and argued that Chinese witnesses should be debarred on the same grounds. In his decision in The People v. George W. Hall (1894), Chief Judge Hugh Murray agreed: “A free white citizen of this State” had had his rights abridged by having been subjected to a trial contaminated by evidence provided by aliens “not of white blood.” The “European white man,” Murray reasoned, must be shielded from the testimony of “the degraded and demoralized caste.” Moreover, if given equality and the rights of citizenship, the Chinese would constitute “an actual and present danger” to the nation’s stability. The phrase free white persons thus defined citizenship as a matter of race. (It was also a matter of gender, insofar as freedom was a virtue possessed by men.)^[4]

The case referenced above in the Richmond Planet is Ozawa vs. United States. The case came from Japanese immigrant Takao Ozawa, who challenged the United States’ ban on naturalized citizenship for Japanese immigrants. Ozawa was born in Japan in 1875 and emigrated to the United States as a student in 1894. He attended the University of California for three years before moving to Hawaii to raise a family, was fluent in English, was a practicing Christian, and worked for an American company.^[5] On 14 October 1914, Ozawa filed an application for citizenship but was denied; he challenged the ruling in the U.S. District Court for the Territory of Hawaii two years later and was again denied.

Ozawa argued that race was a matter of color and culture, and “claimed his skin was whiter than that of ‘the average Italian, Spaniard or Portuguese,’ and that he was thoroughly assimilated and a fervently patriotic American.”^[6]

Indeed, the court “found that Ozawa was ‘in every way eminently qualified under the statute to become an American citizen’ except for his race. He was not white as the country’s naturalization laws required.”^[7] Ozawa appealed the decision and the case went to the U.S. Supreme Court on 31 May 1917. As mentioned in the Richmond Planet article, former U.S. Attorney General George Wickersham, “one of the ablest attorneys in this country [who] ranks with the best in the world,” represented Ozawa, but as the Planet adds, “he [Wickersham] has undertaken a task that only the large size of his clients pocket-book will justify. He has also lost sight of the fact that he is playing with ‘loaded dice,’ that is arguing his case before a prejudiced jury in this matter.”^[8] Prescient indeed, since the U.S. Supreme Court rejected Ozawa’s arguments in 1922 to become a naturalized citizen and “relied on scientific opinion that denied skin color as a criterion of racial classification and held that white was synonymous with Caucasian.”^[9] The court stated that Japanese immigrants were not white, since they were not considered a Caucasian race.

The Ozawa decision was a court case that added to a number of murky contradictions around decisions of naturalization and race of Asian immigrants and Asian Americans by the U.S. Supreme Court. With Ozawa as a precedent, a Punjabi man, Bhagat Singh Thind^‡, took a case to the U.S. Supreme Court in 1923, when officials began to denaturalize South Asian immigrants and naturalized citizens on the grounds that they were not white.^[10] Thind was a naturalized citizen who first entered the United States in 1913 and served in the U.S. armed forces during World War I. Okihiro writes:

The legal context from which the U.S. v. Bhagat Singh Thind case arose was the tangled precedents of Armenians classified as Asians and later in 1909, as whites, and Syrians considered whites in 1909, 1910, and 1915 but nonwhites in 1913 and 1914. The 1909 ruling In re Najour, by a federal court in Georgia, involved the Syrian Costa George Najour. According to the judge’s ruling,the term free white person, the criterion for naturalization eligibility of the 1790 Naturalization Act, referred to race, not skin color. Race, he ruled, was a scientific concept: since Syrians belonged to the Caucasian race, they were white.^[11]

Thind pointed out that science had classified South Asians as Caucasians. He claimed that he was a descendent of the Aryans of India and belonged to the Caucasian race, and was thus “white” within the strictures of the U.S. laws. He likely had the Ozawa case in mind, where the court relied on the scientific opinion that denied skin color as a criterion of racial classification.

A lower district court agreed with Thind in 1920, citing the Najour case and granted him naturalization, but on Thind’s appeal, the Supreme Court denied his arguments, despite the “logic” argued in the Ozawa case that rejected skin tone as a measure of race. Thind, along with other South Asians who had been naturalized citizens, were all unceremoniously denaturalized, and without citizenship status, South Asians were subject to California’s Alien Land Laws (see footnote). It was not until 1946, when the Luce-Celler Act amended the Immigration Act of 1917 and allowed “natives of India” to apply for admission to the United States, that many Indian immigrants were given the rights of citizens.^[12]

The cases of Ozawa in 1922 and Thind in 1923 point to the complexities and contradictions within white supremacy and challenged and destabilized ideas of race and citizenship. Scholar John Tehranian wrote that after the cases of Ozawa and Thind, “whiteness was determined through performance. The potential for immigrants to assimilate within mainstream Anglo-American culture was put on trial.

Successful litigants demonstrated evidence of whiteness in their character, religious practices and beliefs, class orientation, language, ability to intermarry, and a host of other traits that had nothing to do with intrinsic racial grouping. Thus, a dramaturgy of whiteness emerged…performance became the dominant criterion for racial determination and the courts directly influenced the construction of racial identity.”^[13]

I often hearken to a quote from historian Leslie Bow, that “treatment of nonblack, nonwhite people confirmed the flexibility and resourcefulness of white supremacy’s apparatus.”^[14] In 1924, after the Ozawa and Thind cases had been decided, the state registrar of vital statistics, Walter Ashby Plecker, employed Virginia’s Act to Preserve Racial Integrity to effectively separate Virginia citizens into two simplified racial categories: white and “colored.” I have to wonder how closely Plecker followed these Supreme Court Cases and how he may have defined Asian immigrants and Asian Americans along this strict binary.