“said land shall not be … within four miles of the residence or improvements of any white inhabitant of this State” (Alabama Indians Relief Act, 1854)

Section 1. Be it enacted by the Legislature of the State of Texas, that twelve hundred and eighty acres of vacant and unappropriated land, situated in either Polk or Tyler counties, or both, to be selected by the Chiefs of the Alabama Indians and the Commissioners hereinafter named, be, and the same is hereby set apart for the sole use and benefit of, and as a home for the said tribe of Indians….

Sec. 3. That said land shall not be selected or located within four miles of the residence or improvements of any white inhabitant of this State. And that said Indians shall not alien, lease, rent, let, give or otherwise dispose of said land or any part thereof to any person whatsoever. And should the State of Texas hereafter provide a home for said tribe of Indians, and settle them thereon, then the said twelve hundred and eighty acres of land, with its improvements, shall become the property of the State.

“An Act for the relief of the Alabama Indians,” February 3, 1854. H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 68 (link).

 

“Black was a generic term encompassing all non-Whites” in People v. Hall, California 1854 (Haney López)

California – People v. Hall (1854) — Chinese testimony grouped with Black and Indian by construction, “Black” as generic term =df non-White, the reverse of arguments made in Texas 1845 state convention. / WBL 51ff

Unsurprisingly, this early social treatment of Chinese as akin to Blacks also found legal expression. For example, in the 1854 case People v. Hall the California Supreme Court heard the appeal of a White defendant challenging his conviction for murder. He appealed on the grounds that he was convicted only through the testimony of a Chinese witness, and that this testimony should have been excluded under an 1850 statute providing that “no Black, or Mulatto person, or Indian shall be allowed to give evidence in favor of, or against a White man.”[6] The court agreed with the defendant that the Chinese witness was barred from testifying by the 1850 statute, reasoning that Indians originally migrated from Asia, and so all Asians were conversely also Indian, and that, at any rate, “Black” was a [52] generic term encompassing all non-Whites, and thus included Chinese persons.[7] This legal equation of Chinese and Black status was not temporally or geographically unique. Three-quarters of a century later and across the country, Mississippi’s Supreme Court reached a similar decision, holding in 1925 that school segregation laws targeting the “colored race” barred children of Chinese descent from attending schools for White children.[8] Given their social and legal negroization, it may well have been easier for the Chinese and other immigrants to argue their qualification for citizenship as Blacks rather than as Whites.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 51ff.

 

  1. [6]Ozawa, supra, 260 U.S. at 198.
  2. [7]Ichioka, supra, at 9-17.
  3. [8]

“National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment” (Haney López)

significance of the nationalization of citizenship vs. old state citizenship system / WBL p. 50

The lag between the enactment of a racial prerequisite for naturalization and its first legal test may partly reflect the relative insignificance of federal as opposed to state citizenship during this country’s first century. Prior to the Civil War, state citizenship was more important than federal citizenship for securing basic rights and privileges. National citizenship gained significance only in the wake of the Civil War and the Fourteenth Amendment. After 1870, “[a]ll persons born within the dominion and allegiance of the United States were citizens and constituents of the sovereign community. Their status with respect to the states depended upon this national status and upon their own choice of residence, and it could not be impeached or violated by state action.”[3] Thus, the spate of naturalization cases that began in 1878 may reflect the increased importance of national versus state citizenship after the civil war.

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 50.

 

  1. [3]Ichioka, supra, at 12.

“not to permit any Indian or Indians, to be absent from said Reservations … unless they are accompanied by some white man, or men, to be sent with them” (Laws of Texas, 1858)

Be it Resolved by the Legislature of the State of Texas, that the Governor be, and he is hereby requested to urge upon the authorities of the Federal Government at Washignton, the great necessity of the immediate establishment of a permanent military post as near the junction of the larger Wichita and Red River as practicable, and the Indian Agents in charge of the Indians on the Texas Indian Reserve, be instructed to require every male Indian over the age of twelve years, to be upon the Reserve under his control every day, unless such Indian or Indians have his special written permission to be absent; and that such Agents be instructed not to permit any Indian or Indians, to be absent from said Reservations by special permission more than three days at any one time, unless they are accompanied by some white man, or men, to be sent with them by him, to prevent them from committing depredations on the citizens of the country, or communicating with other Indians not known to be at peace with Texas, or sent with white men [276/1148] as guides, hunters, &c., or sent by said Agents as spies, of express bearers; and that the Agents be required to enforce these instructions, and that the Government furnish and keep constantly at each Reserve, a sufficient military force to enable Agents to carry out such instructions. And that our Senators and Representatives in Congress be requested to co-operate with the Governor in accomplishing the objects of this Resolution, and that the Governor be requested to furnish each of them and the President and Secretary of War, and Secretary of the Interior of the United States, with a copy of the same.

Approved, January 29th, 1858.

Joint Resolution of January 29, 1858. H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 275-276 (link).

“it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives)” (Haney López)

1855, 1868: only ‘white women’ can gain citizenship by marriage; loss of citizenship to white women married to barred men. / WBL p. 46

Notice the mention of gender in the statutory language ending racial restrictions in naturalization. The issue of women and citizenship can only be touched on here, but deserves significant study in its own right.[46] As the language of the 1952 Act implies, eligibility for naturalization once depended on a woman’s marital status. Congress in 1855 declared that a foreign woman automatically acquired citizenship upon marriage to a U.S. citizen, or upon the naturalization of her alien husband.[47] This provision built upon the supposition that a woman’s social and political status flowed from her husband. An 1895 treatise on naturalization put it, “A woman partakes of her husband’s nationality; her nationality is merged in that of her husband; her political status follows that of her husband.”[48] A wife’s acquisition of citizenship, however, remained subject to her individual qualification for naturalization–that is, on whether she was a “white person.”[49] Thus, the Supreme Court held in 1868 that only “white women” could gain citizenship by marrying a citizen.[50] Racial restrictions further complicated matters for noncitizen women in that naturalization was denied to those married to a man racially ineligible for citizenship, irrespective of the [47] woman’s own qualifications, racial or otherwise.[51] The automatic naturalization of a woman upon her marriage to a citizen or upon the naturalization of her husband ended in 1922.[52]

The citizenship of American-born women was also affected by the interplay of gender and racial restrictions. Even though under English common law a woman’s nationality was unaffected by marriage, many courts in this country stripped women who married noncitizens of their U.S. citizenship.[53] Congress recognized and mandated this practice in 1907, legislating that an American woman’s marriage to an alien terminated her citizenship.[54] Under considerable pressure, Congress partially repealed this act in 1922.[55] However, the 1922 act continued to require the expatriation of any woman who married a foreigner racially barred from citizenship, flatly declaring that “any woman citizen who marries an alien ineligible to citizenship shall cease to be a citizen.”[56] Until Congress repealed this provision in 1931,[57] marriage to a non-White alien by an American woman was akin to treason against this country: either of these acts justified stripping of citizenship from someone American by birth. Indeed, a woman’s marriage to a non-White foreigner was perhaps a worse crime, for while a traitor lost his citizenship only after trial, the woman lost hers automatically.[58] The laws governing the racial composition of this country’s citizenry came inseverably bound up with and exacerbated by sexism. It is in this context of combined racial and gender prejudice that we should understand the absence of any women among the petitioners named in the prerequisite cases: it is not that women were unaffected by the racial bars, but that they were doubly bound by them, restricted both as individuals, and as less than individuals (that is, as wives).

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 46-47.
  1. [46] See generally Ursula Vogel, Is Citizenship Gender-Specific? THE FRONTIERS OF CITIZENSHIP 58 (Ursula Vogel and Michael Moran eds., 1991).
  2. [47] Act of Feb. 10, 1855, ch. 71,§ 2, 10 Stat. 604. Because gender-based laws in the area of citizenship were motivated by the idea that a woman’s citizenship should follow that of her husband, no naturalization law has explicitly targeted unmarried women. GORDON AND MAILMAN, supra., at
    § 95.03[6] (“An unmarried woman has never been [statutorily] barred from naturalization.”).
  3. [48] PRENTISS WEBSTER, LAW OF NATURALIZATION IN THE UNITED STATES OF AMERICA AND OTHER COUNTRIES 80 (1895).
  4. [49] Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604.
  5. [50] Kelly v. Owen, 74 U.S. 496, 498 (1868).
  6. [51] GORDON AND MAILMAN, supra at § 95.03[6].
  7. [52] Act of Sept. 22, 1922, ch. 411, § 2, 42 Stat. 1021.
  8. [53] GORDON AND MAILMAN, supra at § 100.03[4][m].
  9. [54] Act of March 2, 1907, ch. 2534, § 3, 34 Stat. 1228. This act was upheld in MacKenzie v. Hare, 239 U.S. 299 (1915) (expatriating a U.S.-born woman upon her marriage to a British citizen).
  10. [55] Act of Sept. 22, 1922, ch. 411, § 3, 42 Stat. 1021.
  11. [56] Id. The Act also stated that “[n]o woman whose husband is not eligible to citizenship shall be naturalized during the continuance of the marriage.”
  12. [57] Act of March 3, 1931, ch. 442, § 4(a), 46 Stat. 1511.
  13. [58] The loss of birthright citizenship was especially harsh for those women whose race made them ineligible to regain citizenship through naturalization, especially after 1924, when the immigration laws of this country barred entry to any alien ineligible to citizenship. Immigration Act of 1924, ch. 190, § 13(c), 43 Stat. 162. See, e.g., Ex parte (Ng) Fung Sign, 6 F.2d 670 (W.D.Wash. 1925). In that case, a U.S. birthright citizen of Chinese descent was expatriated because of her marriage to a Chinese citizen, and was subsequently refused admittance to the United States as an alien ineligible to citizenship.

“descendants of races indigenous to the Western Hemisphere” in the Naturalization Act of 1940 (Haney López)

During the war, the United States seemed through some of its laws and social practices to embrace the same racism it was fighting. Both fronts of the war exposed profound inconsistencies between U.S. naturalization law and broader social ideals. These considerations, among others, led Congress to begin a process of piecemeal reform in the laws governing citizenship.

In 1940, Congress opened naturalization to “descendants of races indigenous to the Western Hemisphere.”[39] Apparently, this “additional limitation was designed to ‘more fully cement’ the ties of Pan-Americanism” at a time of impending crisis.[40] In 1943, Congress replaced the prohibition on the naturalization of Chinese persons with a provision explicitly granting them this boon.[41] In 1946, it opened up naturalization to persons from the Philippines and India as well.[42] Thus, at the end of the war, our naturalization law looked like this:

The right to become a naturalized citizen under the provisions of this Act shall extend only to–

(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).[43]

Ian F. Haney López, White By Law: The Legal Construction of Race (New York: New York University Press, 1996), 45.
  1. [39]Act of Oct. 14, 1940, ch. 876, § 303, 54 Stat. 1140
  2. [40]Note, The Nationality Act of 1940, 54 HARV. L. REV. 860, 865 n.40 (1941)
  3. [41]Act of Dec. 17, 1943, ch. 344, § 3, 57 Stat. 600.
  4. [42]Act of July 2, 1946, ch. 534, 60 Stat. 416.
  5. [43]Id.

“If any free white person or persons shall play at any game with cards, or at any other game or games of chance with a slave or slaves, or a free person of color” (Texas Penal Code, revised 1860)

Article 1. Be it enacted by the Legislature of the State of Texas, That the following chapters and articles of the act above recited, commonly known as the Penal Code, be and they are hereby so amended, so as that the same shall read as follows, that is to say:

“An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas” (February 11, 1860), H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 95/1457 (link).

TITLE 12.

Offences against public morals, decency and chastity.

[97/1459]

CHAPTER 6.

Of the crime against nature.

[…]

Art. 409a. If any free white person or persons shall play at any game with cards, or at any other game or games of chance with a slave or slaves, or a free person of color, he or they shall be fined not less than twenty nor more than one hundred dollars, or imprisonment in the county jail not more than three months, at the discretion of the jury.

TITLE 13.

Chapter 4.

Gaming.

[…]

“An Act supplementary to and amendatory of an act entitled an act to adopt and establish a Penal Code for the State of Texas” (February 11, 1860), H. P. N. Gammel, The Laws of Texas, 1822-1897, Vol. 4 (Austin, Texas: Gammel's Book Store, 1898), 96-97/1458-1459 (link).

 

Conceptual Differences in how to organize Anglo-Tejanx differences

Tejanxs have always been perceived as a distinct outgroup in Texas. But the question is how these differences were organized in rhetoric and law — the logic they obeyed, the axes of difference they marked out. The ingrouping-outgrouping could be done along a variety of distinct axes of difference — differences in religion, of color, of ethne, of nationality, of class, of race, of sides in wartime, etc.