When the "Coloreds" Are Neither Black nor Citizens: The United States Civil Rights Movement and Global Migration

William R. Tamayo *

* Managing Attorney, Asian Law Caucus, San Francisco, Cal. B.A. 1975, San Francisco State University; J.D. 1978, University of California, Davis. The preliminary idea for this article was encouraged by a discussion on the board of the Poverty and Race Research Action Council. Thanks are due to Minty Chung and Robert Allen for their assistance and insights, and to the various individuals and organizations that have advocated on behalf of the civil rights of immigrants and refugees.

SUMMARY:

  ... The U.S. Civil Rights Movement is rooted in a centuries-long struggle against the racism aimed not only at African Americans, but also at Latinos, Asian Americans, Arab Americans, and Native Americans. ... However, although Latino, Asian, and other non-Black civil rights organizations formed, Black organizations have historically taken the lead in the Civil Rights Movement. ... Approximately 1.7 million persons of Asian descent alone are registered for entry visas to this country. ... As one Asian American leader in Los Angeles said about the riots, "to some extent, Asian businesses took the place of white businesses targeted during the Watts riots. There was anger at the whole justice system, but it also was aimed at Asian owned businesses. ... Latino and Asian advocates asserted that unscrupulous employers would use the immigration law as a pretext for practicing unlawful racial or national origin discrimination. ... Even within the predominantly immigrant Asian American community, there has been a failure to establish a firm position regarding the rights of undocumented persons. ... By the year 2000, the combined national Asian American and Latino populations are projected to outnumber the African American population. ...  

TEXT:

In this time of great national concern over the control of American borders and the legal and social status of immigrants, the traditional Civil Rights Movement is at a crucial stage. In this Article, the author finds that the Civil Rights Movement, which operates in a primarily "Black v. white" paradigm, is ill-equipped to deal with an increasingly multiracial and multicultural America. In particular, the influx of great numbers of new immigrants from Asia and Latin America - who are neither Black nor white - calls for the Civil Rights Movement to re-evaluate its current framework. The author describes the phenomena of anti-immigrant legislation and political scapegoating which has resulted from the changing demographic landscape, and explores the mutual misunderstandings which have arisen between Blacks and the newer "coloreds." The Article argues that these prejudices have prevented the formation of a multiracial civil rights coalition. The author suggests that racism is the common threat which links together Blacks, Asians, and Latinos, as nativism and anti-immigrant sentiment are rooted in racism. The author advocates for a renewed Civil Rights Movement, one which replaces the more restrictive biracial vision with a new vision which encompasses the new immigrants.

It's no accident that the Statue of Liberty faces Europe and has her back to Asia and Latin America.

-Professor Bill Ong Hing,

Stanford University School of Law.

Introduction

In the midst of global economic and migratory upheavals, the United States is experiencing a major resurgence in racism, xenophobia, and hate crimes. In response to these new and complex phenomena, policy makers and politicians are resorting to old, though not politically time-worn, approaches. Nativism, racially-driven images, and finger-pointing have dominated many proposed or recently adopted policies. Not surprisingly, leaders in the civil rights community are confused and overwhelmed by these recent phenomena and sometimes seem immobilized, lost, or divided on cutting-edge issues affecting poor, non-white people who are neither Black nor citizens. Lacking strong pressure from a unified Civil Rights Movement but strongly pressured by those who want the "good old American (that is, white) days," a bipartisan coalition has decided that it is politically profitable to once again blame non-white immigrants for America's economic misery. Such scapegoating of immigrants culminated on November 8, 1994, when California voters - with the strong support of Governor Pete Wilson - passed Proposition 187, the so-called "Save Our State" initiative. Proposition 187 requires public school officials, public health care providers (including any private health care facility that receives public funds), public social service providers, and law enforcement officials to report suspected undocumented aliens to the Immigration and Naturalization Service (INS) and the California Attorney General. It mandates the denial of public education, health services, and social services to the undocumented.

While there has been legal representation and advocacy for the immigrant community by some sectors of the Civil Rights Movement, those quarters remain relatively small and are not in positions of leadership. Unfortunately, some in leadership positions, including the National Association for the Advancement of Colored People (NAACP) and the Leadership Conference on Civil Rights (LCCR), have at times equivocated upon or failed to take up the cause of immigrants. Furthermore, they have on occasion viewed non-white immigrants as the cause of problems for the African American community.

In light of the current political climate and the new era of global migration, however, the Civil Rights Movement must reexamine its present framework, which is inadequate to address the unprecedented global migration and globalized racism of today. The lack of a united stand by the Civil Rights Movement in addressing issues affecting immigrants indicates that the movement's vision is limited by nativist and racial blinders rooted in the movement's past. In determining its mission for this and following decades, the movement must look not to the differences but to the commonalities between the traditional civil rights community (in particular, the African American community) and the new, non-white immigrants. Racism, whether it is in the form of Proposition 187 or attacks on affirmative action, is the common threat that binds together all non-whites and the Civil Rights Movement.

Tortuous Path, Elusive Goal: The Asian Quest for American Citizenship

Charles J. McClain *

* Vice Chairman of the Jurisprudence and Social Policy Program and Lecturer, Boalt Hall School of Law, University of California, Berkeley. A.B. 1964, Xavier; M.A. 1966, Columbia; Ph.D. 1972, Stanford University; J.D. 1974, University of California, Hastings College of the Law. I am grateful to Roger Daniels, Earl Maltz, and Laurene Wu McClain for helpful comments on this paper.

SUMMARY:

  ... In this Article, the author traces this historical quest for citizenship by members of various Asian ethnic groups. ... When all federal laws were codified in 1874, the codifiers left the phrase "being a free white person" out of the statute, but the following year that omission was corrected so that the naturalization law - or Section 2169 of the Revised Statutes of 1875, as the codification was called - now read: "The provisions of this title shall apply to aliens being free white persons and to aliens of African nativity and to persons of African descent." ... He contended that the new federal naturalization law, the Naturalization Act of 1906, had introduced a whole new scheme of naturalization, conferring the privilege of naturalization on all aliens irrespective of race, by superseding if not repealing Section 2169 of the Revised Statutes. ... Thind applied for admission to citizenship in the federal district court in Oregon. ... V.Asian Veterans and Citizenship ... Certain of the law's provisions seemed to hold potential for Asian veterans interested in naturalization. ... Toyota was the last great case to raise the issue of Asian eligibility for naturalization. ...  

TEXT:

During the late eighteenth and early nineteenth centuries, American citizenship was not available to many Asians who immigrated to this country. However, many of these immigrants actively sought American citizenship and judicially challenged a number of laws and court decisions which prevented them from becoming American citizens. In this Article, the author traces this historical quest for citizenship by members of various Asian ethnic groups. The author describes the landmark cases brought by Chinese, Japanese, Indian, Filipino, and Korean immigrants as they sought to establish citizenship by birth and by naturalization. These cases reveal an Asian immigrant population that was not afraid to stand up to state and federal discrimination. This Article points to the importance of citizenship in an immigrant community's search for full membership in the American political community.

If the privileges of your laws are open to us, some of us will doubtless acquire your habits, your language, your ideas, your feelings, your morals, your forms, and become citizens of your country ... and we will be good citizens.

[il12.]-Letter from Chinese residents of

San Francisco to the governor of

California, April 1852.

That the test of color rather than personal worth should constitute our prime basis of citizenship is a sad commentary on American legislative wisdom.

[il12.]-Message to Congress from President Theodore Roosevelt, December 1906.

Introduction

As James Kettner remarks in his much-praised monograph on the development of the concept of American citizenship, the Civil War and the Fourteenth Amendment (added to the Constitution in 1868) brought a new coherence to the concept of citizenship and did much to clear up prior confusion about who did and who did not belong to the national political community. One group of residents - small to be sure at the time - whose status the war and the postwar amendment did not settle was that of Asians living in this country. Indeed, the right of Asians, whatever their country of origin, to lay claim to the title "citizen" would be a contentious question for a lengthy period of time following the Civil War and would not be finally settled until the mid-twentieth century.

This Article chronicles the efforts of early Asian immigrants to become recognized as American citizens - efforts that began, many may be surprised to learn, not long after the Civil War's conclusion. These efforts - quite distinct from one another in one sense but deeply connected in another - constitute a fascinating but not sufficiently known chapter in American legal history. The primary purpose of this Article is to make this chapter of history better known. Beyond that, I harbor the hope that this account may shed some modest additional light on our understanding of the term "citizen." I associate myself in this connection with a remark made by Judith Shklar in her recent monograph on American citizenship. There she suggests that one may enrich one's understanding of what it means to be an American citizen by investigating "what citizenship has meant to those women and men who have been denied [it] and who [at the same time have] ardently wanted [it]."

Moral Responsibility to Filipino Amerasians: Potential Immigration and Child Support Alternatives

Elizabeth Kolby *

* B.A. 1991, Vassar College; J.D. 1995, Washington College of Law, The American University. I would like to thank the following people for their support: my parents, Mr. and Mrs. Kolby; Katherine Johnson, Director of the Church Coalition for Human Rights in the Philippines; Jan Lugibihl; and Don West.

SUMMARY:

  ... The author also examines non-legal alternatives, in the form of facilitating or providing child support and other financial assistance and aiding Filipino Amerasian children in identifying their American fathers. ... Asian cultures have marginalized these children, often subjecting them to severe discrimination. ... This Comment also explores the possibility of child support payments and noneconomic assistance as means of fulfilling the United States' moral responsibility to its Filipino Amerasian children. ... It has been in the Philippines longer than in any other Southeast Asian nation. ... In contrast, the American military operated in other Southeast Asian countries primarily during times of war. ... B. A Non-Immigration Remedy: Child Support for Filipino Amerasians ... Private Actions for Child Support ... Traditionally, child support issues have concerned state governments, not the federal government. ... Child Support From the United States Government ... They maintain that a poor child simply cannot afford to bring a private international action for child support. ... Recent Progress: U.S. Federal Assistance in Child Support ...

TEXT:

Filipino Amerasian children, because they are biracial and also often the illegitimate children of prostitutes, are subjected to dire economic circumstances and social discrimination in the Philippines. In this Comment, the author argues that the United States owes a moral responsibility to these Filipino Amerasian children, arising from the U.S. military's role in perpetuating the prostitution industry that existed near U.S. military bases in the Philippines. In response to the Filipino Amerasian situation, this Comment proposes several possible U.S. responses. The author proposes a legislative solution through the extension of an immigration preference to Filipino Amerasian children to enable them to come to the United States. The author also examines non-legal alternatives, in the form of facilitating or providing child support and other financial assistance and aiding Filipino Amerasian children in identifying their American fathers.

Introduction

During the twentieth century, the extensive United States military presence in the Pacific resulted in thousands of Amerasian children born to American servicemen and Asian women. In the Philippines alone, U.S. servicemen fathered an estimated 30,000 to 50,000 Amerasian children. Asian cultures have marginalized these children, often subjecting them to severe discrimination. However, the United States government has wrongly presumed that Filipino Amerasians face less discrimination than Amerasians in other Asian countries, because of relatively lower levels of anti-American sentiment and racial bias in the Philippines. Based on this false presumption, the United States' efforts to help Amerasians through immigration and economic support have often excluded Filipino Amerasians.

In the early 1990s, the closing of Clark Air Force Base and Subic Bay Naval Station in the Philippines focused public attention on the plight of Filipino Amerasian children. As a result of the base closings, the people living in the surrounding areas, particularly the local Filipino Amerasian children, suffered severe economic hardship. Following the closings, two significant events transpired. First, a bill was introduced in Congress to extend the provisions of the 1982 Amerasian Immigration Act ("1982 Act") to Filipino Amerasians. Second, a novel class-action lawsuit was filed in the United States Federal Court of Claims on behalf of 8,600 Filipino Amerasian children and their mothers. The lawsuit condemns the U.S. military for its role in the Olongapo prostitution trade and seeks child support payments from the United States government for the children and their mothers. In light of the increased attention on Filipino Amerasians resulting from these events, the United States should reconsider its role with respect to Filipino Amerasian children.

This Comment does not attempt to establish a legal theory holding the United States accountable for Filipino Amerasians, but instead explores the United States' moral responsibility for these children. Specifically, this Comment discusses American responsibility for Amerasian children born of Filipino prostitutes and American servicemen, in the context of the cooperative involvement of the Filipino people, their local governments, and the U.S. military in the Filipino prostitution industry. On a broader level, this Comment raises concerns about Third World women and the international rights of children in light of U.S. military operations.

Part I of this Comment discusses how the U.S. military presence in the Philippines interacted with Filipino cultural and economic circumstances to enable prostitution to flourish in areas surrounding the bases. Part II explains how the American and Filipino governments contributed to the existence of the Filipino prostitution industry. Part III examines the current situation of Filipino Amerasians still living in the Philippines. Part IV argues for reasoned action by the United States in response to the situation of these Filipino Amerasians. This Comment argues for an amendment to the Immigration and Nationality Act that extends an immigration preference to Filipino Amerasians. This Comment also explores the possibility of child support payments and noneconomic assistance as means of fulfilling the United States' moral responsibility to its Filipino Amerasian children.

REVIEW ESSAY: In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America.

Reviewed by Robert C. Berring **

** Professor of Law and Law Librarian, Boalt Hall School of Law, University of California, Berkeley. B.A. 1971, Harvard College; J.D. 1974, M.L.S. 1974, University of California, Berkeley. Special thanks to Mallun Yen, Boalt Hall, 1995, for her indefatigable research help.

SUMMARY:

  ... I was reading In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America [hereinafter In Search of Equality] by Charles J. McClain while riding a taxi to the Oakland airport. ... Passion lies in the evil deeds accomplished under the guise of the legal system, but the Chinese themselves remain remote. ... In response to the closing of the separate school and the exclusion of Chinese children from public schools, the Chinese petitioned the board of education. ... The San Francisco Board of Education complied with the legislative amendment by establishing a separate school for Chinese children in Chinatown. ... In this section, the focus shifts to the federal government, and two of the three chapters in this section deal with the federal Chinese Exclusion Acts. ... Professor McClain initially set out to explore the reaction of the Chinese in California to discrimination by the legal system in all of its forms. ... What impact, if any, did the test cases have on subsequent legislation or court decisions? Did the Chinese successes in court or their familiarity with the legal system in the United States change the appearance of racism or oppression in general? Racism against the Chinese has operated and faltered in various specific ways - ways distinct as to time period, place, and legal issue. ...  

TEXT:

I was reading In Search of Equality: The Chinese Struggle against Discrimination in Nineteenth-Century America [hereinafter In Search of Equality] by Charles J. McClain while riding a taxi to the Oakland airport. The taxi driver noticed the book and asked me what it was about. So I regaled him with stories of Chinese American history, stories about the 1879 Constitution and the anti-Chinese riots of 1885-1886. I told him how the Chinese, despite ever-present obstacles, attempted to utilize the legal system to its fullest extent and to invoke the protection of the law against discrimination. The driver's very real shock took me aback. He professed complete astonishment and queried how it could be that he, a college-educated, 45-year old Californian, could know nothing of this. The driver's question was a fair one, and it highlights the importance of this book as a first step towards enlightenment about the Chinese struggle for equality. The driver made me realize Professor McClain's achievement: he had rediscovered and made accessible an important aspect of Chinese American history.

Professor McClain clearly sets out his mission in writing this book: "The thesis of this book is that the conventional wisdom concerning the Chinese and their supposed political backwardness needs to be stood on its head" (p. 3). He wants us to see a period of legal history in an entirely new way, with the characters in different roles. McClain finds that contrary to the traditional view of the Chinese as a helpless, isolated, and alienated group acted upon by a hostile society, the Chinese were active, adept users of the legal system, who often successfully resisted oppression by the legislature and the courts. As McClain writes, "the book may be seen then, in this respect, as part of a movement in the historiography of the Chinese immigration that has taken hold in recent years, one that tries to break free of stereotypes and to see the Chinese more as subjects and shapers than as objects of history" (p. 4).

Does this book fulfill the goal it sets for itself? Through In Search of Equality, McClain retells the story of anti-Chinese discrimination that has been forgotten by popular consciousness. Such discrimination, rooted in hatred and born of ignorance, was planted in the legal codes and judicial decisions themselves. McClain recounts the many losses and victories of the Chinese as they actively resisted each violation of their rights. Instead of being helpless victims, unaware of available protections, the Chinese immigrants were skilled at using the full power of the legal system to defend themselves. Unfortunately, the fact that they were legally correct did not always protect them. The importance of McClain's book lies in the lessons taught by these stories of the Chinese and their struggle against discrimination.

The failings of In Search of Equality may well lie in the tasks that it did not set for itself, tasks that run beyond the simple recounting of a story. This book is strong on providing data, but weak on analysis. The interplay of racism and politics boils beneath the surface of the narrative - but it stays there. This criticism may be somewhat unfair because Professor McClain set out to tell the story of the Chinese struggle, not to analyze it. And inherently, the factual narrative has enormous value, at the very least as a potential stepping stone for similar analytical tools to come.

In this review essay, I will summarize the book, following the layout and headings used by McClain. While Professor McClain's treatment is so replete with detail that no summary can do it complete justice, a brief discussion and analysis of the major sections of the book will be useful to convey the way the book documents the history of Chinese Americans. In the last section, I assess the book overall and its dual importance as a source of forgotten Chinese American history and as a basis for future works of this kind.