Excerpted From: Joy Kanwar, Stories from the Negative Spaces: United States V. Thind and the Narrative of (Non)Whiteness, 74 Mercer Law Review 801 (Spring, 2023) (231 Footnotes) (Full Document)


JoyKanwarIn the years following September 11, 2001, hate crimes and violent incidents against Sikh people in America rose dramatically. Most of these incidents involved individuals who targeted Sikh people--often men--because of their turbans and beards, which the attackers conflated with their own imagined versions of “9/11 terrorists.” Although the Sikh faith had no relationship to whom these attackers thought they were assaulting, very often someone they believed to be from the Islamic faith, the “visual” told the story--the victim was an outsider, someone who did not belong here and someone who was dangerous for America.

One particularly poignant moment resonated with me from that time. In 2005, my firm took over the pro bono representation of Rajinder Singh Bammi (also known as Khalsa, an honorific for priest), who was beaten within an inch of his life in Queens by several young men of Italian ancestry leaving a christening party. The Queens District Attorney brought a hate crimes case against the men, who were convicted and served either time or community service. Significantly, Mr. Bammi then decided to bring the first case in America in which a Sikh person brought *804 a civil suit against his attackers to pay for his hospital bills and lost wages. In reflecting upon the burden and responsibility of bringing such a case, he asked out loud, “Why are they mixing us up? Why don't they know who we are?” I have thought both of my immediate response to the first question--that no one should be attacked no matter their faith and that we stand with all vulnerable communities--but also of the lingering second question: “Why don't they know who we are?”

In the years since, violent incidents burst forth again in a shooting rampage in the Oak Creek gurdwara, and in shootings and arson in mosques, in synagogues, in churches against other minority communities across the country. Further incidents took place in mundane, everyday locations like FedEx shipping depots in Indianapolis, nail salons and spas in Atlanta, and corner and grocery stores in just about every city in America. What was it that kept certain communities invisible? And more importantly, when the communities were suddenly noticed in incidents such as these, who was creating the narratives around them? I wanted to revisit the story of another case, this one before the Supreme Court of the United States, to see how *805 another Sikh immigrant contested his identity and to see what we can learn from stories left in the negative spaces around the case.

The Supreme Court's decision in United States v. Bhagat Singh Thind turned a century old in February 2023. Other than for scholars who have examined its impact on American immigration history, it remains a relatively unknown case to the general public. But its impact is monumental when it comes to the history of Asians--and in particular, South Asians--in America. The case captures its own historical moment and provides lessons for the ways in which we understand race, citizenship, and what it means to be an American today.

Thind's story spans continents, decades, and empires. By taking the lens back to encompass more of the picture--of the various political and historical forces at play and the ways in which actors contemplated, used, and challenged existing and competing norms--we can see more of the story. This Article articulates why--despite presenting a case carefully designed to align with the Court's own prior reasoning--Thind could not have prevailed in his case to retain his American citizenship before the Supreme Court in 1923.

A word on the various uses of language in this paper. Terminology is ever-changing, and historical terminology does not always comport with the words we tend to use today. To the extent possible, I will try to clarify which community I mean and at which time period. I use the term “South Asian” to describe the modern diaspora of persons originally from India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan, Afghanistan, and the Maldives. When I refer to India or the Indian Independence movement, I am referring to the country before Independence in 1947 (which would also encompass modern-day Pakistan and Bangladesh), and in this specific historical context I may use the word “Indian” to refer to persons from that region. Most American historical sources in the nineteenth century referred to people from India as “Hindus or Hindoos” rather than Indians to distinguish these immigrants from people native to the Americas. This term encompassed all people from India, regardless of whether they were religiously Hindu, and included people of the Sikh, Muslim, Buddhist, and other faiths, as well. Although this Article focuses on Thind and his quest for citizenship, many of the prevailing forces were already in place long before Thind set sail for America, and many *806 continue to work in the negative spaces to define who gets to become fully part of this country and who does not.

This Article builds upon the scholarship about the racial prerequisite cases, including the two Supreme Court decisions in Thind and Takao Ozawa v. United States, which the Supreme Court took up only three months before Thind's case. Scholars such as Ian Haney Lopez, Sherally Munshi, and Doug Coulson have theorized about the legal and rhetorical underpinnings of these cases, including, in Coulson's work, the British imperial influence on Thind's fate. I offer my contribution as in line with Vinay Harpalani's work on DesiCrit, which adds to the rich literature about law and the “creation” of Asian identity and South Asian identity, with John Tehranian's work on the mutability of racial categories, and with the movements of legal storytelling to contextualize the impacts of law on real people. Finally, I am inspired by scholars, including those in my own field of legal writing, who have brought fresh perspectives to the study of historical cases, including by revisiting and rewriting cases as if they were judges of the time, or by *807 foregrounding methodologies that recenter stories about justice from non-Western perspectives.

I recently wrote a dissenting opinion in the Thind case for the forthcoming U.S. Feminist Judgments Project: Immigration Law edition. In the dissent, I had an opportunity to delve into what the Court could have considered in its decision based on resources available in 1923, including its reading of the Naturalization statute and use of the existing tests used in the lower federal courts at the time. After writing that piece (with Professor Jaya Ramji-Nogales' truly insightful accompanying commentary tying Thind to current tropes in immigration law), I wanted to address the stories that illuminated the decision but could not be part of a formal judicial opinion. In terminology I borrow from artistic composition, these were the stories in the negative spaces, stories which surround the main subject and give it greater definition and context. With this article, I look again at the language in filings, briefs, and decisions, and add back the details of people's lives that are often removed from the stories we tell about the law. Some of these details and documents are little-known, and I thank Bhagat Singh Thind's family members--his son, David, and his grandson, Justin--for allowing me to get a larger sense of the impact of the case on their lives as well.

Like the Panchatantra itself, this Article proceeds in five parts. I start with the frame story--the case itself and the language that the Court used to exclude Thind and, thereby, all Indian immigrants from *808 naturalization. Then I tell the nesting stories around the case to provide context for why and how race became a moving target for Thind and other immigrants at that time.

[. . .]

I asked before whether Bhagat Singh Thind must have been surprised by the decision in his naturalization case. When asked about the decision, he is understood to have said, “America, by far the best of all the Christian lands, sided with perfidious Albion to insult India in the matter of citizenship.” And he was not alone in his assessment that Britain and its treatment of Indians as subjects played a role in their denaturalization in America. The Indian press of the time came to the same conclusion.

Thind, by then, Dr. Thind, a world-famous spiritual teacher who was known to his students as “Doctorji,” and a friend of luminaries such as Swami Yogananda, applied again for citizenship in New York in 1935. He applied on the basis that he served the United States in World War I. On March 2, 1936, on the third try, Dr. Bhagat Singh Thind became a citizen of the United States of America. Years later, in 1946, when the Luce-Celler Act removed racial restrictions, Indians were able to naturalize in this country. The next year, India gained independence from Britain, and the nations of India and Pakistan were born.

When I asked him about the case, Dr. Thind's son, David, graciously obliged and answered my questions. But he primarily knew his father as someone who traveled across the country giving spiritual lectures, who was joyous and full of life, and who had endless patience for his students and family. He told me that his father never talked about it, but that he had learned so much about the case in the years since his death. Finally, I asked David's son, Justin, whose mother is white, and grandmother, Vivian Thind, was white, what he considers himself, and he said, “Oh, I consider myself South Asian.”

*844 One hundred years ago, Bhagat Singh Thind challenged his denaturalization in the Supreme Court of this land. And if “past is prologue,” then we should know his story.

Professor of Legal Writing and Associate Dean of Diversity, Equity and Inclusion, Brooklyn Law School. New College (B.A., 1996); Vermont Law School (J.D., 1999). Editor, Res Communes Vermont Law School Environmental Law Journal (1999). Member, State Bar of New York.