America's Racist Laws: White People's Historical Legal Privilege

The term white people has been used in a legal context in the United States since the Naturalization Act of 1790, which restricted naturalised citizenship to free white persons. The term white had become established as a racial term by the 18th century, when the enslavement of African Americans was widespread. The construction of the white race in the US is argued by historian David Roediger to have been an effort to mentally distance slave owners from slaves.

The legal definition of white has changed over time and has been the subject of numerous court disputes over the pursuit of citizenship. In 1923, courts concluded that scientific evidence was incoherent and instead vindicated a common knowledge standard, relating to religious practices, culture, education, intermarriage, and a community's role in the US.

The US Census Bureau defines white as a person having origins in any of the original peoples of Europe, the Middle East, or North Africa. However, this definition is set to change in the 2030 Census, which will no longer classify Middle Eastern and North African Americans as white.

The Naturalization Act of 1790

The Act was based on the British Parliament's Plantation Act of 1740, which was titled "An Act for Naturalizing such foreign Protestants and others therein mentioned, as are settled or shall settle in any of His Majesty's Colonies in America". The 1790 Act set a two-year residency requirement in the United States and one year in the state of residence before an alien could apply for citizenship by filing a Petition for Naturalization with "any common law court of record" having jurisdiction over their residence. Once the court was convinced of the applicant's "good character", the applicant would take an oath of allegiance to support the Constitution of the United States. The applicant's children up to the age of 21 would also be naturalized. The court clerk would then record these proceedings, and the applicant would be considered a citizen of the United States.

The Act also provided that children born abroad to US citizens "shall be considered as natural-born citizens", but specified that the right of citizenship did "not descend to persons whose fathers have never been resident in the United States". This was the only US statute to use the term "natural-born citizen", which is found in the US Constitution concerning the prerequisites for a person to serve as president or vice president. The 1795 Naturalization Act removed this term.

The 1790 Act did not specifically preclude women from citizenship, but courts absorbed the common-law practice of coverture into the United States legal system. Under this practice, the physical body of a married woman, and thus any rights to her person or property, was controlled by her husband. A woman's loyalty to her husband was considered above her obligation to the state. Jurisprudence on domestic relations held that infants, enslaved people, and women should be excluded from participation in public life and conducting business because they lacked discernment, the right to free will and property, and there was a need to prevent moral depravity and conflicts of loyalty.

The Act was repealed and superseded by the Naturalization Act of 1795, which extended the residence requirement to five years and required a three-year application notice period.

The Immigration Act of 1790

Prior to the Act, free black people had been granted citizenship at the state level in several states, creating ambiguity around the treatment of newcomers. The Immigration Act of 1790 aimed to address this by setting clear residency requirements and criteria for naturalization. To be eligible for citizenship, applicants had to be free white persons of good character, reside within the United States for at least two years, and swear allegiance to the Constitution. The Act also granted citizenship to the children of naturalized citizens under the age of 21, as well as children born abroad to US citizens.

The Act's restriction of citizenship to white persons reflected the social and political hierarchy of the time, where race was a defining factor. This definition of whiteness as a prerequisite for citizenship led to numerous court disputes, with people denied white status by immigration officials suing for recognition as white. These racial prerequisite cases informed subsequent legislation and shaped the evolving definition of whiteness in America.

The Naturalization Law of 1802

The 1802 Law directed the clerk of the court to record the entry of all aliens into the United States, including their name, birthplace, age, nation of allegiance, country of emigration, and place of intended settlement. The clerk was also responsible for granting each applicant a certificate that could be used as evidence of their time of arrival in the US. This law reaffirmed that every State and Territorial court was considered a district court within the meaning of the laws pertaining to naturalization. It also stated that any person naturalized in such courts was to be accorded the same rights and privileges as if they had been naturalized in a district or circuit court of the US.

The definition of "white" in the context of US citizenship has evolved over time. According to historian David Roediger, by the 18th century, "white" had become well-established as a racial term when the enslavement of African Americans was widespread. Roediger argues that the construction of the "white race" in the US was an effort to mentally distance slave owners from slaves. The process of being legally defined as white often occurred in court disputes over the pursuit of citizenship.

The Naturalization Act of 1870

The Naturalization Act of 1790 restricted naturalization to "free white person(s) ... of good character. This was the first uniform rule for granting United States citizenship by naturalization. The law eliminated the ambiguity of how to treat newcomers, as free Black people had been allowed citizenship at the state level in many states.

The Act created a system of controls for the naturalization process and penalties for fraudulent practices. It also revoked the citizenship of naturalized Chinese Americans. The Act was introduced by Republican Representative Noah Davis from New York in the House of Representatives and co-sponsored by Republican Senator Roscoe Conkling from New York in the Senate.

The Act explicitly extended naturalization rights to African immigrants and people of African descent. This promoted integration and equality for African Americans but maintained racial distinctions that denied naturalization rights and access to citizenship for Asian and other non-white immigrants.

The Fourteenth Amendment, passed in 1868, granted citizenship to people born within the United States and subject to its jurisdiction, irrespective of race, but it excluded untaxed "Indians" (Native Americans living on reservations). Native Americans were granted citizenship in a piecemeal manner until the Indian Citizenship Act of 1924, which gave them blanket citizenship.

The Indian Citizenship Act of 1924

The Act was not retroactive, so it did not apply to those born before its effective date or outside the US as indigenous persons. Additionally, while the Act granted citizenship, the right to vote was still governed by state law, and some states continued to bar Native Americans from voting until 1957.

The lead-up to the Indian Citizenship Act of 1924 was marked by a complex history of US policy towards Native Americans. The Dawes Severalty Act of 1887, for example, had attempted to turn Indians into farmers by redistributing tribal lands, resulting in the loss of a significant portion of Native American-held acres by 1932. The poverty and exploitation that resulted from this Act led to the passage of the 1934 Indian Reorganization Act, which promoted Native American autonomy and self-government.

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