California Governor Gavin Newsome made two groundbreaking public apologies in recent years: one in 2019 to the Native American community for the state’s policy of exterminating its people around the time of statehood in 1851, and the other in February of this year to Japanese Americans for the state’s complicity in the U.S. policy of forcibly removing and mass incarcerating U.S. citizens of Japanese descent during World War II.
While they came nearly a year apart and were announced separately, the apologies are not unrelated. They are bookends in California’s long history of white-based race laws. For most of the hundred years between 1850 and 1950, California engaged in writing legislation to guarantee the protection of whites and deny basic freedoms to those human beings who were found to be “not white” by law.
To understand what it has meant to be an “American” for most of this country’s history, you have to go back to one of the earliest laws passed by the first U.S. Continental Congress in 1790, which laid out who could or could not participate in the new nation. Despite the Founding Fathers’ declaration that “All men are created equal” and that a nation governed by the rule of law would bring liberty and “Justice for All,” they made sure that the fruits of democracy would not be available to just anybody.
From the very beginning, “whiteness” was a cornerstone of the American plan. The Naturalization Act of 1790 stipulated that “any alien,” being a “free white person” who had “residency for 2 years” and was of “good character” could naturalize. The “any alien” designation signaled the first exclusion—that of the native born, or the Native American.
Eighty years later, the updated Naturalization Act of 1870—an Act of Congress—would, for the first time, extend the rights of citizenship to “aliens of African nativity and to persons of African descent.” It also withdrew citizenship from naturalized Chinese Americans. Before its passage, there were attempts by some in Congress to withdraw the term “white” from the Act, but fears by other members of Congress of “swarming Chinese” who had come for the railroad construction jobs and the gold rush resulted instead in the addition of Africans to the list of aliens eligible to naturalize.
Thus, by default, a third and new category of aliens was created—those deemed ineligible to naturalize because they were not African or from Africa and were also found by a court of law to be “not white.” It was during this period after the Civil War, when the United States began encouraging people to settle vast swaths of territory west of the Mississippi, that hundreds of local, state, and federal laws were written using race as a basis for excluding those in the gray legal area considered “not white.”
California, which had become a state in 1850, was already ahead of the game. That first year, the state imposed a Foreign Miners Tax on Chinese persons. In 1854, the California State Supreme Court ruled in People v. Hall, an appealed murder case, that Chinese Americans and Chinese had no rights to testify against white citizens. In 1858, the state passed a law to prohibit further immigration of Chinese and Mongolians. In 1859, San Francisco excluded Chinese from public schools. By 1862, California had passed “An Act to Protect Free White Labor,” which required every Chinese person to pay a “police tax” of $2.50 a month.
The growing animosity toward Asians led to the first restrictive federal immigration law, the Page Act of 1875, which ended open borders and effectively barred East Asian women from entering the United States. In 1878, a federal court in California ruled that Chinese immigrants were not eligible to naturalize because they were not white.
This ruling paved the way for the Chinese Exclusion Act, the first federally mandated law to specifically exclude an entire nationality from immigrating, which President Chester A. Arthur signed into law in 1882. A new federal agency was created to fulfill this decree, the Immigration and Naturalization Service.
In essence, California set the stage for a host of not-white laws that would be adopted around the nation. Though Native Americans were already excluded from citizenship by the Naturalization Act of 1790, an 1880s federal court ruling in Oregon went further and found that persons half-white and half–Native American were not eligible to naturalize because they were “not White.” In 1889, a federal court in Utah held that Hawaiians were deemed ineligible to naturalize because they were not white. In 1894, Burmese were ruled not white by a federal court in New York.
As a Japanese American, I was distressed to learn that it was in my adopted state of Massachusetts, where I now reside, that a federal district court ruled in 1894 to specifically exclude Japanese from citizenship, because they are “Mongolians” and neither African nor white. Usually one or two of four rationales were used to support these kinds of rulings: Congressional Intent, Common Knowledge, Scientific Evidence, and Legal Precedent. In the Massachusetts federal case it was all four. What’s more surprising, in that it seems contrary to what is happening today, a federal court in Texas in 1897 held that Mexicans were legally white.
In 1909, a federal court in New York held that persons half-white, one-quarter Japanese, and one-quarter Chinese were not white, thus excluded from citizenship. I include this as a personal note to self, as a born and bred New Yorker. Not all not-white rulings were so clear cut. For example, in a federal court in New York that same year—1909—it was ruled that Asian Indians were probably not white. By the following year, 1910, a federal circuit court of appeals in United States v. Dolla found that Asian Indians were indeed White . . . “by ocular inspection of skin.”
In 1922, the U.S. Supreme Court affirmed the findings of the lower courts in Ozawa v. United States that Japanese are not white and thus excluded from citizenship. In an oddly cruel twist, the same U.S. Supreme Court ruled in 1923 in Thind v. United States that Asian Indians were not white, overturning the appeals court ruling 13 years earlier.
These cases, of which there are many more, illustrate failed attempts by individuals who sought equal justice through the courts. Their outcomes document that attempts to challenge racial categories as a prerequisite for citizenship more often than not were thrown out, and the status quo was ratified into law instead. This pattern can be understood as a contributing factor to why the discussion on race in this country tends to remain centered on a black/white paradigm and focused on the Civil War, slavery, and the deep South. This nation fought one of history’s bloodiest civil wars to make slavery illegal. Still, it is instructive that many of these not-white laws were implemented and upheld in Northern or Western states, in the same way that Jim Crow was supported in the South and remained legal for a large part of the 20th century.
Importantly, there is a growing body of scholarship acknowledging the race-based laws passed during this period, notably Ian Haney López’s White by Law, which argues that much of what we call race has been legally constructed in our courts and cannot be overcome until whiteness is dismantled or perhaps understood as a value that has been upheld above all others. The effect of these laws on our nation was to steer the complexion of peoples of the northern hemisphere toward an ever-more-uniform whiteness.
Whether or not Gavin Newsome’s apologies actually lead to meaningful change, an important break from California’s historic pattern of upholding the primacy of whiteness was provided by the state’s lawmakers in February, when they issued a formal declaration of regret for the forced removal and mass incarceration of U.S. citizens of Japanese descent during World War II and designated February 19 a yearly Day of Remembrance. The apology comes 32 years after the federal government acknowledged its own role in this dark history. And at the University of Southern California, this history was not included in the official curriculum until just a couple of years ago.
In June 2019, the same lawmakers issued an apology to the California Native American community for the state’s policy of extermination of its people back in 1851. Founded as a state in 1850, California passed a law in its first legislative session that allowed Native Americans to be sold into indentured servitude and native children to be separated from their families. Sound familiar? A year later, in 1851, California’s first governor, Peter Burnett, declared that “a war of extermination” would continue “until the Indian race becomes extinct.”
Forty governors later, Gavin Newsome would excoriate his predecessor’s policy, calling it genocide. In a public ceremony, the governor unequivocally declared, “That’s what it was, genocide. No other way to describe it. And that’s the way it needs to be described in the history books.”
Despite these welcome apologies, being “white,” or more accurately “not white,” are distinctions that have been ingrained in the identity and purpose of this country from inception, were memorialized in its laws, and remain today the fiercest obstacle to the fulfillment of its promise.
Setsuko Winchester is a ceramic artist, photographer, and former journalist at NPR. Her upcoming project, which explores America’s Whiteness Laws, is called “The Dissent Collars.”