Excerpted From: Hardeep Dhillon, The Making of Modern US Citizenship and Alienage: the History of Asian Immigration, Racial Capital, and US Law, 41 Law and History Review 1 (February 2023) (176 Footnotes) (Full Document)


HardeepDhillonIn 1913, 38-year-old Sakharam Ganesh Pandit informed the Superior Court of the State of California for the County of Los Angeles that he was a “free White person,” according to his skin color, high-caste status, Aryan ancestry, and race science. Pandit also submitted evidence of at least 5 years of residency in the United States. The Indian immigrant was in the process of finalizing his petition to naturalize as a US citizen by proving that he met the requirements stipulated in naturalization law.

At its birth as a sovereign nation, the United States required an immigrant to be a “free white person ... of good character” if they sought to naturalize. The all-White male Congress enacted this racial prerequisite in the nation's first federal naturalization law in 1790, underscoring the founding legislators' efforts to codify Whiteness within the law, facilitate the settlement of a White nation, and enforce White supremacy. Following the Civil War, Congress amended federal naturalization law by extending naturalization to “aliens of African nativity and to persons of African descent.” Congress designed the amendment to retain racial eligibility within federal naturalization law, to thwart naturalization attempts by non-European immigrants, particularly Chinese immigrants, as Congress attempted to recast the nation's racial prejudice against Black Americans and immigrants. These changes in federal naturalization law gave non-African and European immigrants the option of naturalizing as African natives or descendants, or as White persons.

Between 1878 and 1952, US federal courts adjudicated fifty-two cases pursued by immigrants from Syria, Korea, the Philippines, China, Burma, Armenia, Japan, India, Hawai'i, and Mexico who sought to naturalize as US citizens by proving to US courts that they were indeed White. Their arguments solicited a range of rulings from US judges that underscored how immigrants' contestation of racial categorizations challenged the founding legislators' efforts to integrate White supremacy into law. When Pandit appeared in court to complete his naturalization proceedings, he encountered a puzzled Judge William Morrison. Morrison was uncertain if Indian immigrants were eligible to naturalize as US citizens based on their race, since judges across the United States made different rulings on whether Indian men constituted White persons, or persons of a different race such as Mongolian, Asiatic, or Hindu. Witnessing Morrison's hesitancy, Pandit shared that he needed to naturalize to qualify for the California bar and practice law in the United States. At the time, most states required individuals to be US citizens to qualify for the bar. On hearing Pandit's woes, Frederick Jones, the naturalization examiner in Pandit's case, informed Pandit that “the Judge [was] going to take a little time so that the door may not be thrown open to such as are not desirable.” Several weeks later, Judge Morrison naturalized Pandit, ruling that the immigrant “represent[ed] the highest type of the Hindu race, its culture and thought, and apart from the question of color or race is in all respects qualified for citizenship.” Even the most anti-Asian organizations were drawn to Pandit's accomplishments and status. For example, the San Francisco Call, the press organ of the Asiatic Exclusion League (AEL), an umbrella organization for labor groups dedicated to preventing Asian immigration, underlined Pandit's accomplishments as a college graduate, lecturer, law student, and “man of the Brahmin caste.” It also revealed Judge Morrison's praise for the remarkable nature of Pandit's legal brief to the court.

The racial classification of Indian immigrants preoccupied judges and bureaucrats across the United States until 1923, when the US Supreme Court agreed to review Indian immigrants' eligibility to naturalize as US citizens. The US Supreme Court unanimously ruled that Indian men did not constitute White persons in United States v. Bhagat Singh Thind. Following the Supreme Court's ruling, the Department of Justice (DOJ) attempted to denaturalize all Indian men who had gained US citizenship, as well as their families, by claiming they had naturalized “illegally.” The DOJ's decision was among the first efforts in US history to denaturalize an entire community of immigrants and their families and cast them as illegal citizens. The DOJ's discretionary decision-making remade legally naturalized immigrants as permanent aliens.

Denaturalization proceedings brought a 51-year-old Pandit back to court in 1926. Pandit argued his case based on equitable estoppel, a defense that prevented federal courts from denaturalizing him on the basis that he had relied on his status as a citizen to such an extent that he would experience great harm if his legal status changed. Since 1913, Pandit had exercised a range of rights reserved for US citizens. He had secured admission to the California bar in 1917, practiced law, and co-purchased 320 acres of land. Pandit also married Lillian Stringer, a White woman, in June 1920. The marriage was considered legal under California's existing miscegenation laws because Pandit was considered White.

Pandit's nearly 200-page court file defies the teleological narrative of immigrant to citizen that marks the United States' imaginary as a “nation of immigrants” and a multicultural nation. His case presents an array of critical points that demand an alternative interpretation of the history of US citizenship and alienage. For example, what did the naturalization examiner mean when he noted that Judge Morrison sought to prevent “undesirables” from acquiring US citizenship? How did caste become relevant to the adjudication of race in the United States? How did the DOJ delineate illegality when men like Pandit were naturalized in US courts in the presence of court clerks, naturalization examiners, judges, and district attorneys? Why did the DOJ pursue the denaturalization of Indian men and their families, but not for other Asian immigrants not classified as White? Finally, why was it that when Pandit returned to the court in 1926 for denaturalization proceedings, key aspects of his personal, professional, and economic life were contingent on his racialization as White and legal status as a US citizen, including his profession, land ownership, and marriage to a White woman?

This article unravels an important historical conjuncture in the making of modern US citizenship and alienage by drawing on the state's regulation of naturalization as it relates to Asian immigration in the early twentieth century. It draws particular attention to Indian immigration. My primary concern is to examine the socio-legal formations that constructed the thick distinctions between the modern US citizen and alien along the lines of racial difference and racial capital. Specifically, this article argues that Asian immigration to the United States remade the modern US citizen and alien in two significant and interconnected ways. First, it underscores how the adjudication of race in US courts and connected political campaigns re-mapped race in the United States and sharpened the racialization of continental Asia and Europe in profound ways that ultimately produced immigrants from southern, central, and eastern parts of Asia as the modern US alien. Second, the debate over Asian immigrants' eligibility to naturalize refashioned legal status as a normative avenue to sustain a regime of racial capital. It cast citizenship as a legal avenue for White men and families to acquire and protect a proprietary interest in citizenship and recast some Asian immigrants as permanent aliens in a period when alienage came to signify disposable immigrant labor.

At the center of these struggles for citizenship, the legal boundaries of Whiteness and the Asiatic acquired new definitions that substantiated a national color line based on racial difference. Given that US citizenship continues to be heralded as a form of legal security for immigrants and remains a critical issue in need of political reform, this history proves invaluable for tracing the hidden hierarchies of US citizenship and alienage, their relationship to racial capital and labor, and our understandings of the emancipatory prospects of citizenship.

This article has the immense fortune of building on the rigorous work of legal scholars who have excavated the histories of racial capital, citizenship and alienage, and the construction of race in US courts. The latter body of scholarship underlines that while race has important effects and affects in our world, it is a shifting social construct, not a biological fact. Specifically, legal scholars have focused on the role of the courts in adjudicating race, 25 particularly Whiteness as it relates to naturalization in the United States. In his insightful analysis of the prerequisite cases, Ian Haney López points to forms of evidence such as skin color, demeanor, ancestry, character, and deportment that US judges used to determine who was and was not “White by law.” Sherally Munshi calls attention to the role of racial visibility and the performance of Whiteness and citizenship in the adjudication of race, while Sarah Gualtieri reminds scholars that immigrants' attempts to be classified as White contributed to political and legal activism that spanned national borders and immigrant communities. Turning to racial categories more broadly, Mae Ngai's critical interventions remind us that Whiteness was not the only racial category under deliberation in naturalization cases. Categories such as “Asian” were equally important, as were state techniques in constructing immigrants as “impossible subjects,” including “illegal aliens” and “alien citizens”--citizens who remained alien--in the United States.

Drawing on these insights, I offer several methodological interventions for understanding the making of modern US citizenship and alienage, and the adjudication of race in the United States by considering the relational formations of race and histories of racial capital. First, I uncover how the prerequisite cases shaped racial categories beyond White and Asian through larger relational race formations that distinguished racial differences among and between immigrant communities from Asia. In federal courts and political discourse, immigrants from Asia engaged in “a possessive investment in Whiteness” to secure the legal rights to US citizenship and the life opportunities and rights afforded to individuals who fell within the bounds of Whiteness. As the Bureau of Naturalization and US courts deliberated whether immigrants from Asia were White, they also distinguished which immigrants from Asia were White. Immigrant communities and multiple US bureaucracies contributed to these processes of legal adjudication on a trans-imperial scale. Just as federal judges struggled to create a precedent in case law, federal bureaucrats strived for uniformity across the nation's naturalization processes. The Bureau of Naturalization, State Department, and DOJ initially encountered the racial classification of Asian immigrants without a clear or consistent conceptual framework, even though they policed Asian immigrants' submission of their first and second papers and oversaw their naturalization hearings.

The legal struggles of Asian immigrants, including Pandit's, remade the legal boundaries between White and Asiatic. Federal judges and bureaucrats adjudicating immigrants' naturalization petitions created a sharp racial division between which immigrants from the continent of Asia were classified as White and which were classified as Asiatic. US courts largely constructed immigrants from more western parts of Asia as White and eligible to naturalize, while individuals from southern, central, and eastern parts of Asia were deemed not White and recategorized as the modern US alien. These legal boundaries acquired sharper definition that substantiated a new national color line based on racial difference, reconfiguring which immigrants from continental Asia were “historically ‘alien-ated’ in relation to the category of citizenship.” Asian immigrants who were classified as Asiatic rather than White emerged as permanent aliens. New racial distinctions among Asian immigrants in the early twentieth century have continued to shape the contours of US racial formations, including in the field of Asian American Studies today. While Asian American Studies includes Asians from southern, central, and eastern parts of Asia, and has recently incorporated Indigenous communities and the Pacific, immigrants from more western parts of Asia receive far less attention. This disparity reveals how definitions of “Asia” and “Asian” continue to be influenced by the prerequisite cases and other sociolegal formations.

My second methodological intervention uses racial capital as the key sociolegal context for understanding how the prerequisite cases unfolded to remake the history of US citizenship and alienage. By racial capital, I refer to the processes by which access, acquisition, and protection of rights, goods, privileges, and legal reforms became attached to race. In her pivotal essay on Whiteness and property, Cheryl I. Harris argues that it was “the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination.” Throughout the mid-twentieth century, US citizenship was a form of legal status that provided immigrants deemed White with greater rights and privileges to capital accumulation, including but not limited to property, while prohibiting other immigrants from having the same rights and privileges. The exclusion of Asian immigrants from the United States and from US citizenship was central to this process. State and federal laws on naturalization and citizenship also played an important role. When Sakharam Ganesh Pandit naturalized, most immigrants did not choose to become citizens as soon as they became eligible. Rather, it was the growing distinction between citizenship and alienage, and increasingly restrictive federal immigration laws, which compelled many immigrants to naturalize. Instead of explicitly referring to race in state law, legislators across the United States expanded citizen-only laws on an unprecedented scale. Citizen-only laws stipulated “eligible to citizenship” clauses as a proxy for race to evade federal anti-discriminatory constitutional law and jurisprudence, particularly in relation to the Equal Protection Clause of the Fourteenth Amendment.

Examining these entanglements of race and naturalization, legal scholars of US immigration and citizenship have substantiated the historical development of citizenship and alienage in the United States. In the early twentieth century, many legal distinctions between citizens and aliens were forged to marginalize Asian immigrants. These legal processes helped make the distinctions between citizen and alien equivalent to the distinctions between White and Asiatic, the historical term used to refer to Asian immigrants at the time. American studies scholar Lisa Lowe captures this historical conjuncture: “In the last century and a half, the American citizen has been defined over and against the Asian immigrant legally, economically and culturally.”

Building on this scholarship, my work traces how the radical transformation of citizenship and alienage established the notion that citizenship was essential for the acquisition of property, employment, and various forms of socioeconomic mobility in the United States. I reveal how the expansion of state citizen-only laws and restrictive federal immigration laws targeting Asian immigrants positioned US citizenship as a coveted legal status that offered White individuals the potential to acquire, sustain, and expand their capital while restricting non-White immigrants from these opportunities. This included but was not limited to the right to vote, own land and property, hold a professional occupation, and gain membership in professional organizations such as the American Bar Association, which mattered to Asian immigrants like Pandit. The passage of these laws imbued US citizenship with greater value as a legal status, subsequently heightening the importance of Asian immigrants' racial classification and eligibility for US citizenship in the courts and beyond. As citizen-only laws expanded across the United States, Asian immigrants found it difficult to exercise citizen-only rights and privileges because it was harder for them to acquire first papers or gain eligibility for naturalization. Congress's passage of restrictive federal immigration laws only heightened the precarity of Asian immigrants, particularly laborers, in the United States. By eroding protections against deportation and limiting socioeconomic mobility, legislators and voters established a critical precedent in the production of a transitory and disposable labor force in the United States that targeted Asian immigrants while the nation's dependence on low-wage migratory labor grew.

The history of racial capital also provides a critical lens through which to reinterpret the remaking of legal status and who the nation believes is worthy of citizenship and naturalization reform. Just as federal immigration law offered legal exemptions for elite immigrants, including students, merchants, and diplomats, as a form of reciprocity to protect and expand US imperial interests in Asia, White judges, clerks, and naturalization examiners naturalized Indian immigrants with racial capital in the form of elite education, fiscal wealth, high-caste status, and access to White and Christian networks. These decisions reflected how US officials expanded national citizenship to include the most elite Indian immigrants, with the exception of individuals who participated in revolutionary freedom movements. Restrictions on the latter group reveal how US naturalization and immigration law upheld racial capital on a transimperial scale in the early twentieth century by attempting to secure the longevity of Euro-American imperialism and the continued extraction of wealth and resources across the world.

In the wake of Thind and exclusionary immigration and naturalization policies in the United States, more elite and middle-class Indian immigrants invoked their postgraduate education, financial status, and general socioeconomic standing as they advocated for immigration reform. Institutional organizations and political networks organized by Indian men portrayed Indian immigrants and their families as Americanized, well-educated, patriotic, and financially stable. By the 1920s, their portrayals of what kinds of immigrants were worthy of immigration reform became integral to the language of naturalization. In the mid-twentieth century, newer and more elite Indian immigrants emphasized India's markets and geopolitical importance, as Congress considered immigration and naturalization reforms for Asian immigrants. These arguments elicited sympathy and close consideration from US legislators. Consequently, when Congress opened the United States' borders and citizenship to Indian and other Asian immigrants, it expanded the entanglement of modern immigration and naturalization law with racial capital. In effect, the legal debate over Asian immigrants' eligibility to naturalize in the United States, and subsequent immigration reform integrated racial capital as a critical component of US citizenship, alienage, and immigration and naturalization reform.

[. . .]

The Great Depression and World War II reignited Asian immigrants' struggles to regain admission to the United States and naturalize as US citizens when aliens were deprived of state assistance amid the steepest economic decline in world history and shifting geopolitical interests. Still, until the 1952 repeal of the racial criterion for citizenship in the United States, Indian and other Asian activists won naturalization reforms on the basis of arguments rooted in racial capital. They insisted that their ancestral homelands were critical to US war efforts and markets. Asian immigrant organizations dedicated to reforming naturalization and immigration law, including the India Welfare League, Citizens Committee to Repeal Chinese Exclusion, Japanese American Citizenship League, and India League of America, pointed to their members' status as successful immigrants who excelled in educational pursuits, financial prosperity, and military patriotism, beyond that of most Americans.

US interests in retaining an imperial foothold in Asia and its global status, and Asian American advocacy, which emphasized reform through what Ellen Wu has described as “the color of success,” converged to create the model minority myth. They also normalized the idea that immigration and naturalization reform should result from the racial capital and general value that immigrants add to the nation. These debates unfolded in the late nineteenth and early twentieth century but cast a long shadow over US history. Since the period of Asian restriction, reform advocates have argued for greater rights for aliens, but few believed that the United States should naturalize all aliens, or that aliens should hold the same legal rights as citizens. Lawmakers and immigration reformers have largely accepted the radical claim that aliens must prove their value and worth to the nation before acquiring the legal rights and privileges reserved for citizens. The contours of this vocabulary reveal how the history of Asian immigration and struggles for citizenship continue to frame the epistemological parameters of our national debates on alienage and citizenship to this day.

Hardeep Dhillon is the child of immigrants, a storyteller, and a historian. She received her doctorate in history from Harvard University, with a secondary focus in women, gender, and sexuality studies. She is currently the American Bar Foundation/National Science Foundation Post-Doctoral Fellow in Law and Inequality. She will join the Department of History and Asian American Studies Program at the University of Pennsylvania in the Fall of 2023.< This email address is being protected from spambots. You need JavaScript enabled to view it.>

I use the term “Indian” rather than “South Asian” because it refers to the historical region from which immigrants in this study originated. Most Indians in the US migrated from the province of Punjab, which is today partitioned across northern India and eastern Pakistan. South Asian and South Asia developed as categories during World War II and the Cold War.