The Naturalization Act of 1790:  Race, Gender, and Natural Born Citizens

 

            What if President Obama had been born in Kenya?  Why did the Supreme Court rule Hindus from India were ineligible to naturalize?  Why was John McCain considered to be a natural born citizen despite having been born outside of the United States?

            These are some of the questions that can be answered by studying the Naturalization Act of 1790.  This is the closest we can come to understanding the thoughts of our founding fathers on citizenship issues.   

Naturalization Act: March 26, 1790 (excerpts)

“…That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application to any common law Court of record in any one of the States wherein he shall have resided for the term of one year at least… And the children of such person so naturalized, dwelling within the United States, being under the age of twenty one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…”

The Nationality Act of 1790 was our nation’s first law stating who may become a naturalized citizen.  It provided for the naturalization of minor children and stated that children born outside the United States, of American parents, are “natural born citizens.”  However, the law limited naturalization to “a free white person.”

Part One: Citizenship and Race

In 1790 the United States was primarily populated by whites of European ancestry, Blacks from Africa, and Native Americans.  Citizenship issues were primarily determined by the states.  Citizens of states were also United States citizens, but first allegiance was to states, not to the federal government.  A few states accepted Native Americans and free Blacks as citizens and allowed them to vote, but most did not.  The citizenship status of Native Americans and free Blacks remained uncertain for many decades.  For naturalization purposes, citizenship was limited to “free whites.”  This meant that the person naturalized must have completed any obligated period of indentured servitude.

Americans believe our nation was populated by people seeking religious freedom.  That is only partially true.  Before the Revolutionary War, 80% of immigrants came as indentured servants.  Indentured servants were not free to marry, to travel, or even attend church without their master’s permission.  The average length of servitude was seven years, but could be as little as three years or as much as fourteen years, depending upon the servant’s job skills.    

The Civil Rights Act of 1866 extended full citizenship to Blacks, however, Congress wanted to remove all doubt and passed the 14^th Amendment in 1868.  In 1857 the U.S. Supreme Court had refused to rule on the case of Dred Scott, claiming he was not a U.S. citizen.  The purpose of the 14^th Amendment was to overturn the Dred Scott decision and make it clear that race was not a barrier to citizenship.

 The fourteenth amendment declared all persons born within the United States to be U.S. citizens, except Native Americans not taxed.  In 1870 Congress extended naturalization eligibility to "aliens being free white persons, and to aliens of African nativity and to persons of African descent.” 

The Chinese Exclusion Act of 1882 not only barred the immigration of Chinese, but also included a section banning their naturalization.  It said, “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."   

Some historians argue that the law is unclear as to whether the ban on Chinese was geographic or racial.  For example, if someone of European ancestry lived in China and arrived in America with a Chinese passport, would that person be eligible for naturalization?  This question is answered in a 1946 immigration manual, section 449.3, which states that only those persons racially ineligible for naturalization are affected by the ban on immigration and the ban on naturalization.   

“This restriction is construed as applying only to a native of this barred zone who is of such of its racial stock as is racially ineligible to citizenship in the United States under the provisions incorporated in Section 722 of the Nationality Manual.  It does not apply to a person of other racial stock born within the limits of the zone.

“In the case of a native of mixed stock, the blood of the male parent is controlling.  Therefore, if the father was of the barred zone racial stock ineligible to citizenship and the mother of other racial stock, such person is considered to be a native of the barred zone.  But if the mother was of barred zone racial stock ineligible to citizenship and the father of other racial stock, their child is not considered to be a native of the zone.  And in any case, when the amount of such other blood is more than 50 percent, the person is similarly considered.”

In 1943 Congress repealed the Chinese Exclusion Act and made Chinese eligible for naturalization.  The 1945 War Brides Act permitted brides of U.S. soldiers from Asian countries.  In 1946 Congress lifted the naturalization ban for races indigenous to India and the Philippines. The 1946 immigration manual was retrospective and explained the repealed law for new officers.

Congress had only authorized the naturalization of “free white persons” and people of African ancestry.  Everyone else was ineligible for naturalization.  Therefore, natives of Japan, Korea, the Philippines, and other Asian nations were racially ineligible for naturalization.  The most controversial country included in the ban was India.  Indian nationals were classified as Caucasians, but their skin was darker.

Ineligibility to naturalize was not supposed to affect children born in the United States.  However, in 1894 Wong Kim Ark traveled to China.  He was born in San Francisco in 1870.    The Collector of Customs denied his entry as a U.S. citizen in 1895.  The government argued his brief travel to China showed his allegiance was to China.  The U.S. Supreme Court ruled in favor of Wong Kim Ark.  Among other reasons, the court ruled that an act of Congress, meaning the Chinese Exclusion Act, could not overrule the birthright citizenship provision of the 14^th Amendment.   

In 1923 the Supreme Court ruled on skin color in the case of Bhagat Singh Thind.  Hindus were classified as Caucasian by anthropologists.  Thind was racially eligible for naturalization.  Thind was a high caste Hindu and of full Indian blood.  The reference to full Indian blood appears to refer to the fact he could have been born anywhere in the British empire and was added to make sure that Indians who worked on the railroad in British Columbia would be no different than Mr. Thind, who was born in the Punjab Province of India. The court argued that although Hindus might be Caucasian, the term “Caucasian” was not in use when the 1790 law was passed.  According to the court, the term “white” was commonly thought by Americans not to include people with dark skin.  The law did not say “Caucasians” and persons of African descent, but “white” persons. 

Thind had fought for the United States during World War I and received an honorable discharge.  Ironically, he was naturalized a few years later when he moved to New York, where a sympathetic court granted him naturalization a few years after the U.S. Supreme Court ruled him ineligible to naturalize.  The Thind decision was not popular with a lot of people.  The hysteria about Hindus was primarily in the West, especially in Washington and Oregon, which received many of the Hindus who left British Columbia after working on the railroad there.  Thind had originally applied for naturalization in Oregon in 1920.  The Oregon court had actually approved Thind for naturalization, but an Immigration Officer challenged the decision and the case eventually went to the Supreme Court.  Several other Hindus had been naturalized before this case was challenged.  After the Supreme Court decision on Thind, the government located and de-naturalized about 70 Hindus who had previously been naturalized.

Native Americans presented a problem for states determining who was a citizen.  In 1835 North Carolina revised its state constitution to take the right to vote from American Indians and free blacks.  In 1838, 17,000 Cherokee Indians were forcibly relocated from North Carolina to Indian Territory (Oklahoma).  This 1,200-mile trip is known as the “Trail of Tears”.  In 1842 North Carolina granted citizenship to those Cherokee Indians who managed to evade the forced evacuation.  Some American Indians in other states became U.S. citizens by virtue of treaties signed with the United States.

In 1888, American Indian women married to white American male citizens became U.S. Citizens.  In 1890 American Indian men who owned land and paid taxes gained U.S. citizenship and the right to vote.  In 1919, American Indian men who served in World War I were given U.S. citizenship.  On June 2, 1924, Native Americans were finally granted full birthright citizenship.

Part Two: Gender for determining citizenship for children born abroad

            The 1790 law allowed citizenship to be passed on to children of U.S. citizens born outside of the United States.  However, in 1790 the law required that the father must be a U.S. citizen.  The citizenship of the mother did not matter.  This was similar to the laws of most countries at that time.

            On May 24, 1934, women gained the right to pass on U.S. citizenship to children born abroad.  However, children born abroad to women prior to this date were not affected by the 1934 law.  In 1994 Congress passed a Technical Corrections law which made the 1934 law retroactive to the founding of our nation.  This change created an alternate universe for some people.  Most of the people affected by this change were no longer alive.  A legal fiction was created for people who had lived and died as aliens, but were now legally deemed to be U.S. citizens from birth.  However, this change would probably be used by the courts to prove that President Obama would be a natural born citizen, had he been born in Kenya.

Part Three:  Natural Born Citizens

             John McCain is the perfect example of what the 1790 law intended by the phrase: “And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens…”  He was born in 1936 on a naval air station in the Panama Canal Zone.  Both parents were American citizens and his father was a naval officer.  Contrary to a commonly held belief, birth on a U.S. military base in a foreign nation does not meet the definition of birth in the United States.  In 1937 Congress passed a law stating that children born in the Panama Canal Zone after 1904 were American citizens, but that law required the parents to also be citizens.  The 1937 law was not needed since American law already provided for citizenship of children born in foreign countries.  A few scholars argue that McCain is not a natural born citizen because the 1937 law was passed after his birth.  When McCain decided to be a candidate for President of the United States he asked for a determination of his status as a natural born citizen.  The U.S. Senate passed a non-binding resolution stating he was a natural born citizen.   

            The Naturalization Act of 1790 was repealed by the Naturalization Act of 1795.  Congress was concerned about the large number of new immigrants and wanted to increase the time of residence in the United States from two years to five years.  The new law also took out the term “natural born citizen” and simply stated that children born outside the United States of American parents were U.S. citizens.  The law did not say such children were not natural born citizens, therefore leaving the definition of natural born citizens in doubt.

            George Romney, Mitt Romney’s father, was a Presidential candidate in 1968.  He was born in the Mormon colonies of Mexico in 1907.  His family fled Mexico during the Mexican Revolution in 1912.  His father was born in Utah territory in 1871.  Had he been elected President, his status as a natural born citizen would have been challenged and the Supreme Court would have had to rule on his status.  Barry Goldwater was born in the Arizona territory before it became a state and a few people challenged his status, but since he was not elected, it was never ruled on.

            Now we have the so called “birther” allegations that President Obama was born in Kenya.  While it now seems obvious President Obama was born in Hawaii, what if he had been born in Kenya?  Could he still be a U.S. citizen?  What about a natural born citizen?

            President Obama was born August 4, 1961.  His mother, Ann Dunham, was born in Kansas and was living in Hawaii when she met Barack Obama Sr., who was a foreign student from Kenya.  They married on Ground Hog Day in 1961.  Obama Sr. informed Ann Dunham of his prior marriage to a Kenyan woman named Kezia.  He lied and stated they were divorced, making his marriage to Ann Dunham invalid.

            The belief that President Obama could not be a U.S. citizen if born in Kenya assumed the marriage of his parents was valid.  Citizenship laws for children of Americans born overseas have changed several times.  The law in effect in 1961 stated that if a child had one citizen parent and one alien parent, the citizen parent must have resided in the United States for ten years prior to the child’s birth.  Five of those ten years must have been after the age of 14.  Ann Dunham Obama was only 18 when her son was born, therefore, she could not have resided in the United States for five years after the age of 14.  This law was cited by the birthers.

            However, since the marriage was not valid, we can apply the law for children born out of wedlock to American mothers.  The President’s mother was only required to have resided in the United States for one year prior to his birth.  She met that requirement.  Therefore, President Obama is a U.S. citizen, regardless of where in the world he was born.

            The remaining question now is, had President Obama been born in Kenya, would he be a natural born citizen?

            The only definition of natural born citizen is in the Naturalization Act of 1790.  It stated that children born abroad of American parents are natural born citizens.  However, another provision states that only fathers could pass on citizenship.  Now consider the 1934 law permitting women to pass on citizenship and the 1994 law making that provision retroactive to the founding of our nation.  A revised reading of the 1790 law makes children born abroad of American women U.S. citizens at birth.  Therefore, they meet the definition of natural born citizen.  It is time to stop worrying about where President Obama was born. 

 

           

           

 

 

I will respond to questions about immigration history.  I will not respond to questions about cases pending with any of the Homeland Security agencies.

Email me at: driding33@gmail.com

I am interested in stories you may have about immigration history, policy, humor, etc.

My cell phone # is (559) 681-8564.  I don't carry it with me when working around the house, but I do check it frequently for messages.

Before 1906, naturalization documents could be issued by states.  An alien first declared his or her intention to become a citizen, as shown in the Declaration of Intention shown above.  Most states were very liberal in granting citizenship to aliens who wanted to vote.

Welcome to Immigration History & Folklore

After spending 39 years as an immigration officer, I retired in December 2011, and decided to write a book.  I found my vast experience writing government memos worked against me.  I also learned publishers want to hear from agents, and agents want to see work in a perfect format, which is different than government memos.  I also learned both agents and publishers want authors to have a following.  First time authors are not judged by the quality of their writing, but by the number of people who read their blogs.

I have hundreds of stories to share, so why not start putting some of them on a blog.  As I learn how to blog, I will add photos and links to longer stories.  My goal is to share the historical knowledge I have of immigration history, policy, laws, folklore, and humor.  I hope others share my interest and will appreciate the stories I put on this blog.

 

Story # 1: The Black Chicken

In March of 1973 I was inspecting pedestrians coming into the United States at the Paso del Norte Bridge in El Paso, Texas.  In my line was an elderly Hispanic woman carrying a live black chicken.

When her turn came, the elderly woman declared her citizenship by saying, “U.S. city”, which was TexMex for United States citizen.  I was convinced the lady really was a U.S. citizen, but I could not let her bring the chicken into the United States.  I tried to explain in Spanish that the chicken might be a carrier for Exotic Newcastle disease, but my Spanish was not fluent and she did not seem to understand what I was saying.  She kept repeating in Spanish, “My children will die! My children will die!”

I became frustrated and referred the lady to an inspector from the Department of Agriculture who spoke good Spanish.  Thirty minutes later he came to me and explained what the problem was.

A wicked witch had put a curse on her two grandchildren that she was raising.  In order to break the spell she needed to feed her grandchildren chicken soup made from a black chicken.  The lady didn’t know where to buy a black chicken in El Paso so she crossed the border and bought a chicken in Mexico.

The agriculture inspector called his supervisor and tried to get permission for her to bring the chicken into the U.S., but the request was denied.  He then spent twenty minutes making more phone calls and then went to the lady and told her to take the chicken back to Mexico and get her money back.  He handed her a note with the address of a store in El Paso that had live black chickens for sale.

The elderly lady followed his instructions and by the end of the day was able to make her chicken soup.  Her grandchildren lived happily ever after.

Note:  This is my favorite story and had a large impact on my desire to help the public.  While it may sound made up, it is true.  The agricultural inspector could have said, “You silly old woman, your children will not die!”  Instead, he had compassion on the woman and found a way to deal with her superstitions and still enforce American law.  Throughout my career I tried to find ways to help people while still enforcing our immigration laws.  Our laws are important.  Less than a year after this event, Exotic Newcastle disease wiped out over 500,000 chickens in West Texas.  The supervisors who resisted the request to let the live chicken cross the border were protecting our nation.  I soon realized I could not ignore my responsibilities as an immigration officer, but I could find ways to serve the public while enforcing the law.

            I was privileged to be taught by two of the finest INS officers on training days.  Joe Salazar spent 51 years with the INS before retiring.  He knew everything.  He was one of the very few INS employees of his era who had not started in the Border Patrol.  He started as a clerk in the 1940s and worked his way up because he was smarter than everyone else.  Ford Rackley was the Spanish instructor.  He also entertained us with his with hilarious stories.  He always claimed they were true.  We were never sure.  Ford began his career as a Border Patrol Agent in the 1930s.  He taught Spanish at the Border Patrol Academy in the 1950s and 60s and helped write the Border Patrol Spanish Handbook that was used for decades afterwards.

Both Joe and Ford taught us to be respectful of aliens.  We learned to speak to poor applicants as if they had money.  Ford taught us the Spanish phrase for “How may I be of service to you?” rather than merely asking, “What do you want?”  Joe taught us the importance of being so polite we could deny a benefit and still receive a sincere “thank you” from the applicant.  Both men belong in my personal Hall of Fame.  Their presence can be felt in all of my stories.