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Jean Stefancic

reprinted from: Jean Stefancic, Terrace V. Thompson and the Legacy of Manifest Destiny , 12 Nevada Law Journal 532 (Summer 2012) (140 footnotes Omitted)

The first of a number of state anti-alien land law cases to reach the U.S. Supreme Court, Terrace v. Thompson affirmed that Japanese farmers in the state of Washington could not own agricultural land because they could not in good faith declare their intention to become citizens of the United States.

On a first reading, the Terrace case does not seem like one of manifest destiny. Yet, earlier in Washington's history, a dispute had occurred over property rights of the indigenous people in the Washington Territory, which foreshadowed later antagonistic relations between white settlers and Japanese immigrants, which eventually led to Terrace.

I argue that both events illustrate the interplay of manifest destiny--the notion that newly discovered land belonged in the hands of white settlers--and its close cousin, nativism, which still plays a role in current discriminatory treatment of undocumented aliens. Part I examines the early development and role of manifest destiny in U.S. history. Part II describes the dispute over the Medicine Creek treaty between the Nisqually tribe and Washington territorial governor Isaac A. Stevens regarding land ownership. Part III reviews the background and facts of Terrace. Part IV addresses the current treatment of undocumented immigrant workers in Washington state today in light of its past relations with subordinated groups. As the reader will see, a recurrent sense of entitlement, fear, and resentment is the force that links society's mistreatment of Native people, the Japanese, and the undocumented.

I. Manifest Destiny

The concept of manifest destiny seeped into the American consciousness during the early settlement of the United States. Even before British Captain James Cook explored the northwest coast of North America by sea in 1778, explorers had hoped to find a passage to the Pacific through the waterways of the American continent. If found, this would save them months of dangerous sailing around the southern tip of South America in order to reach the fabled markets of the Far East. Acting on a mandate from President Thomas Jefferson to find a direct & practicable water communication across this continent, for the purposes of commerce with Asia, Meriwether Lewis and William Clark in 1805 reached the Pacific Ocean at the mouth of the Columbia River in Oregon at a fort later named Astoria.

During the debates over the Oregon Territory and the war with Mexico in the 1840s, America's destiny became even clearer to policy and opinion makers. The phrase, manifest destiny, first given voice in 1845, embraced achieving a new U.S. western boundary--the Pacific Ocean--and developing the land in between. Advocating a treaty with England to cede the Oregon Territory to the United States, newspaper editor John L. O'Sullivan wrote that America's claim to the land was by the right of our manifest destiny to overspread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty and federated self government entrusted to us. The slogan caught on during the Mexican War and became the subject of debate in newspapers and political venues for years afterward.

Manifest destiny incorporated two interrelated components: the expansionist mission to settle the land to the Pacific shore, eventually establishing commerce with Asia, and the belief in Anglo-Saxon racial superiority.

1. Westward Expansion and Trade with Asia

The opening of the North American continent by Lewis and Clark inspired writers and politicians, such as Senator Thomas Hart Benton, to champion the imposition of Western civilization on other nations. The belief in the superiority of European civilization and the mandate that it be carried westward around the globe had deep roots. German philologists theorized that their language derived from a gifted civilization (later named Aryan) in the Indus River valley of northern India. From there civilization had traveled westward through Central Asia, across the Caucasus Mountains to central Europe where it found full flower in the German Romantic movement in the eighteenth century. From Germany, this higher culture spread, according to the thinking of the time, to England, and from there to the shores of America.

Thus, in 1818, Benton was emboldened to write:

In a few years the Rocky Mountains will be passed, and the children of Adam will have completed the circumambulation of the globe, by marching to the west until they arrive at the Pacific ocean, in sight of the eastern shore of that Asia in which their first parents were originally planted.

As for what would happen when the settlers arrived, he wrote: The valley of the Columbia might become the granary of China and Japan, and an outlet to their imprisoned and exuberant population. The inhabitants of the oldest and the newest, the most despotic and the freest Governments, would become the neighbors, and . . . friends of each other.

Benton's remarks might have seemed prophetic, even inspiring. Yet, in the following two decades much was to happen that would incorporate a new element into the concept of destiny and change the way America's leading thinkers conceived of westward development. Yet to come were Indian removal, the Cherokee cases, the pioneers' westward migration, the annexation of Texas, and the lust for Mexico's land. With these events manifest destiny became entangled with the more sinister notion of racial superiority.

2. Anglo-Saxonism and Racial Superiority

Sixteenth century exploration brought Europeans face to face with people quite unlike themselves. Enlightenment philosophers and scientists, such as Linnaeus and Blumenbach, devised classification schemes to distinguish species and groups by their differences. By the nineteenth century, European and English scientists were busy measuring various parts of the human anatomy, hoping to establish a justification for their new racial-scientific theories about the origin and hierarchy of races.

In another kind of exploration, the English Reformation generated an enthusiastic interest in the country's Anglo-Saxon racial origins in early Teutonic tribes of Germany. The English admired the Teutons for their political institutions such as tribal councils and trial by jury, as well for their love of freedom, ferocity in battle, and racial purity. That Anglo Saxons were a superior race gained a foothold in English political philosophy, particularly in the different factions of the Whig party, and became a strand in the political philosophy of early American colonists, most notably Thomas Jefferson.

During the first half of the nineteenth century, the intellectual community in the United States was intrigued with the same racial theories that had taken hold in Western Europe. To Southern slave owners, American expansionist-minded politicians, and journalists who strove to inflame public opinion, those theories provided the evidence needed to justify the enslavement of blacks, the extinction of Indians, and the degradation of Mexicans.

Senator John C. Calhoun, speaking to Congress on the eve of the war with Mexico, expressed the feelings of many of his countrymen:

We have conquered many of the . . . tribes of Indians, but we never thought of . . . incorporating them into our Union. They have either been left as an independent people amongst us, or been driven into the forests. . . . [W] e have never dreamt of incorporating into our Union any but the Caucasian race--the free white race. To incorporate Mexico, would be . . . incorporating an Indian race; for more than half of the Mexicans are Indians, and the other is composed chiefly of mixed tribes. I protest against such a union as that! Ours . . . is the Government of a white race. The greatest misfortunes of Spanish America are to be traced to the fatal error of placing these colored races on an equality with the white race. That error destroyed the social arrangement which formed the basis of society.

The nation's leaders heeded Calhoun's sentiment. After crushing the outmanned Mexican army and dictating peace terms, the United States took only the upper, thinly populated half of Mexico, which included the land which is now California, Nevada, Arizona, New Mexico, and parts of Utah and Colorado. It acquired, in short, much prized real estate without having to absorb too many dark-skinned mestizos.

By the end of the century the frontier had closed. The United States had prevailed in the Spanish-American war, taking the Philippines, Guam, and Puerto Rico and establishing the U.S. as a world military and colonial power. Ironically, large-scale world migration, this time from China and Japan, reversed direction as Asians sought refuge from war, economic depression, and Western colonialism. The Chinese came east to the United States, and the Japanese soon followed.

II. Governor Isaac Stevens, the Nisqually People, and the Medicine Creek Treaty

This land is your land, this land is my land

This land was made for you and me.

Washington Territory, formerly governed by the British as part of the Oregon Country, split off from the Oregon Territory in 1853 with the new governorship awarded to Isaac A. Stevens.

A West Point man, Stevens had fought in the war with Mexico (1846-48) as field commander of the Corps of Engineers where his duties included mapping the way through jungles and mountains from Veracruz to Mexico City for the advancing American army. Victory in that war had expanded the United States westward from the Rocky Mountains to the Pacific coastline and northward from the Rio Grande to the 49th parallel. After the war Stevens's taste for battle remained even as he reentered civilian life and became assistant director of the U.S. Coastal Survey. Eventually his success at mapping the Pacific coastline, his political maneuvering, and his ambition led to his appointment as Governor of Washington Territory. Stevens advocated for a stronger standing army that would support the westward migration of white settlers into the newly acquired land where they would encounter murderous Indian tribes.

Racial rhetoric during the war with Mexico undoubtedly affected Isaac Stevens as well as other army men who later participated in the settlement of the West. Addressing his constituents upon his arrival to the territory in November 1853, Stevens proclaimed his vision of manifest destiny: From your hands an imperial domain will descend to your children . . . in the cause of humanity and freedom. With backing from Congressional Democrats, Stevens and a surveying party had trekked overland from St. Paul, Minnesota, surveying a northern route through the mountains for a transcontinental railroad that would, in time, bring settlers and commerce to the Northwest. By wagon trains, white settlers had been migrating to Oregon; the railroad would bring them to Washington Territory. Along the way passing through Indian country, Stevens had encountered many Indian tribes in his capacity as newly-appointed superintendent of relations with the natives.

In his new post, Stevens found a small band of hardy settlers clustered in the fertile territory west of the Cascade Mountains and south of Puget Sound. Some were engaged in logging, but most were homesteaders drawn by the lure of free land. One of Stevens's first tasks was to deal with the indigenous tribes on whose homeland the settlers were making their farms. The Nisqually, the largest tribe, were fishers and hunters and lived along the lower and upper reaches of the river that came to bear their name.

In a February 1854 address, Stevens assured the new territorial legislature that the verdant countryside would become the highway of the trade of nations. In order for this to happen, Indian title to the land had to be expunged so that the settlers' Donation Act claims could be certified. Stevens asked his legislature to petition Congress to authorize land surveys and treaty negotiations. The Nisqually were to be subject to the first treaty. But, of course, they held no land title and knew nothing of surveys.

Before the year ended, Stevens had his treaty with the Nisqually and two other smaller tribes. It was never clear whether the Nisqually leader, Leschi, understood the import of what took place, much less the nuances of the treaty language translated from English into Chinook Jargon. Nevertheless, he was said to have made his mark with a cross, signing away rights to 4,000 square miles of ancestral land in exchange for three reservations of two square miles each. The Nisqually were to be ushered out of the fertile river valleys, which provided them with abundant fish and game, to live on a thickly forested, stony bluff high above the Puget Sound. Stevens was highly gratified with this result; the Nisqually were not. Stevens's loyal enforcer, Frank Shaw, also the treaty team's interpreter, had no sympathy for the Indians. In later years, he said:

[T] here was a great deal of humbug about making any treaties with the Indians. . . . The question was, shall a great country with many resources be turned over to a few Indians to roam over . . . making no use of the soil for timber or other resources, or should it be turned over to the civilized man who could develop it . . . and make it the abiding place of millions of white people.

I further confess that I was one of the men who believed in allowing the Anglo-Saxon race to take up the burdens that the Indians were incapable of carrying . . . . [W] e who have been in this country from the first inception of the new order of things . . . pray that this American civilization may not stop until it penetrates every nook and corner of this continent.

Wars ensued. To the territorial legislature Stevens vowed that the war shall be prosecuted until the last hostile Indian is exterminated. Leschi was eventually captured, tried for murder, and hanged.

Unlike the British, who had come to the northern sector of the Oregon Territory mainly to trade with the Indians, the Americans had come to settle the land and develop its resources. Assimilation of the native northwest tribes was unthinkable. Extermination or settlement on reservations was to be the final solution. Not until Congress unilaterally imposed it in 1924, were Indians offered citizenship.

III. Terrace v. Thompson

From sea to shining sea.

In 1853, the same year that Governor Stevens arrived in Washington Territory determined to rid it of the native population, Commander Matthew Perry, fulfilling the ultimate goal of manifest destiny, landed in Japan seeking to open up trade and establish markets for American goods. Here we may see how the doctrine overreached, producing an unintended effect on the west coast of the United States.

While still a territory, Washington had passed an alien land law to encourage development by white settlers and investment by foreign corporations. Fishing, mining, and logging industries needed brute strength and capital to realize their potential. Fertile land awaited plowing and tilling, and harvesting of crops. But the Territory was remote, difficult to get to, and even then suffered a bad reputation for its inclement weather.

Meanwhile Chinese laborers, having learned of these opportunities in the new land, had immigrated to the west coast of the United States. Many came to the Washington Territory, first to mine gold, and later to build the Northern Pacific transcontinental railroad. Known for their willingness to work long hours for low pay, they soon earned the hostility of white settlers. They were a yellow peril, treacherous and subversive, traits that Washingtonians would soon transfer to the Japanese. Even Supreme Court Justice Stephen Field, who was to write the opinion that prevented Chinese who had left the U.S. to visit their families in China from reentering, weighed in disparagingly in a letter to a confidant. Eventually labor competition, as well as longstanding prejudice, resulted in a congressional act in 1882, lasting until 1943, which barred Chinese immigration to the United States.

On achieving statehood, Washington incorporated an alien land law into its 1889 constitution that barred those aliens who could not, in good faith, declare their intentions of becoming citizens of the United States, from land ownership.

The Chinese had been excluded, but Japanese immigration eastward soon began to increase. Recession in Japan had driven many of its agricultural workers to Hawaii. Upon hearing of opportunities in California, Oregon, and Washington, they began to immigrate to the mainland. All went well for a while. But by 1905 Japan had become a force to be reckoned with, especially when, to the astonishment of onlookers, it defeated Russia, a world power, in the Russo-Japanese war. Military batteries and gun emplacements sprang up along the west coast. Newspapers inflamed public opinion.

In order to smooth relations with Japan, the United States began to put agreements and treaties into place. To regulate immigration, the Gentlemen's Agreement agreed to screen out laborers, but allowed wives of settled agriculturalists to join their husbands, a provision that inadvertently enhanced the possibility for the creation and establishment of families. In 1911 a trade agreement between Japan and the U.S. allowed citizens of both nations to enter, reside, and travel in each other's countries to carry on commerce and own real property, but it made no mention of the right to own agricultural land.

California, where nativism ran high, seized on the opportunity to pass an alien land law in 1913 prohibiting certain individuals and corporations from purchasing agricultural land and restricting the leasing of it to three years. The law avoided referring to the Japanese by name but instead used the euphemism aliens ineligible to citizenship. It proved so ineffective at curtailing Japanese farming, however, that by 1920 an initiative amendment passed, strengthening the 1913 law. As well as banning purchasing or leasing, it also prohibited aliens from serving as guardians to minors who had an interest in agricultural land, which prevented immigrant Japanese from buying farms in the names of their citizen children.

In western Washington the Japanese settled first in the southern area of Puget Sound, then gradually spread into the White River Valley, the same area that had seen hostilities between white settlers and the Nisqually tribe over a half century before. World War I brought the need for more agricultural workers. The Chinese population had, by then, dwindled as a result of the Chinese Exclusion Act. As well, most immigrants from India, Southeast Asia, and the islands of the Pacific were excluded with the creation of the Asiatic Barred Zone in the Immigration Act of 1917. The Japanese, however, who were not subject to that exclusion, had proven able farmers and prospered. Many envious white farmers saw the Japanese as a threat. But others admired them for their hard working ways and efficiency. One such person was Frank Terrace who, along with his wife Elizabeth, desired to lease part of their land to N. Nakatsuka.

In 1921, Washington toughened its alien land law to include leasing as well as procedural mechanisms that closed loopholes, and to enact harsh penalties for circumventing the Constitution, making it clear that Washington really meant it. The Japanese, as nonwhites, could not in good faith declare their intention to become citizens. By combining eligibility for citizenship with the intent to actually pursue it, the state effectively prevented the Japanese from participating in farming in any meaningful way. Indeed, it successfully removed that means of livelihood for many of them.

Washington's motivation in passing and amending the law was not a secret--to eliminate competition between Japanese and white farmers. Indeed, one of its citizens, Albert Johnson, was soon to play a leading role in the major reform of U.S. immigration laws. Johnson, a native of the logging town of Gray's Harbor and elected to Congress in 1912, was also a newspaper editor of the same ilk as Hearst and McClatchy in California. His vehement campaign against the labor movement and his antipathy toward foreigners, Japanese in particular, propelled him into the heart of national immigration debates. By 1919 he had become chair of the House Committee on Immigration, in which capacity he was successful in bringing the hearings to address the Japanese problem to Seattle where the members met in the courtroom of Judge Edward Everett Cushman, who was later to write the district court opinion in Terrace.

The Northwest American Japanese Association had challenged the ban on Terrace leasing part of his land to Nakatsuka. They lost. After negating protection by the 1911 commerce treaty, federal district court Judge Cushman, perhaps recalling conversations with Albert Johnson, tackled the eligibility question:

It is obvious that the objection on the part of Congress is not due to color, as color, but only to color as an evidence of a type of civilization which it characterizes. The yellow or brown racial color is the hallmark of Oriental despotisms, or was at the time the original naturalization law was enacted. It was deemed that the subjects of these despotisms, with their fixed and ingrained pride in the type of their civilization, which works for its welfare by subordinating the individual to the personal authority of the sovereign, as the embodiment of the state, were not fitted and suited to make for the success of a republican form of Government. Hence they were denied citizenship. It is this disqualification put upon them by the federal government to which the state objects, and not their color, although the federal government may have made their race color the irrefutable evidence of disqualification for citizenship.

Declaring that it was the duty of Congress to preserve, in its purity, our own type of civilization, he went on to say: The more homogeneous its parts, the more perfect the union . . . . [T] here is no law or treaty that yet has said . . . if citizenship be accorded these Orientals, the danger is past of our becoming a mechanical medley of race fragments.

Shortly afterward, the U.S. Supreme Court in the Ozawa case (1922) handed down a decision crushing any hope for Japanese to transcend the barrier of the whiteness requirement for citizenship. Takao Ozawa had petitioned the Court for naturalization showing, in short, that he was an educated, assimilated American. Despite all, his request was denied and Japanese were barred from naturalized citizenship until the immigration reform McCarran-Walter Act of 1952.

When the Terrace case reached the U.S. Supreme Court the following year, the Court needed only to use race-neutral language to affirm the lower court opinion. Terrace and Nakatsuka challenged the law on two grounds: first, that it conflicted with the due process and equal protection clauses of the 14th Amendment, and second, that it contravened the 1911 commerce treaty between U.S. and Japan. The Court decided it did not. With impeccable formalistic logic, the Court created a two-by-two matrix placing in the same category those ineligible for citizenship with those who were eligible for citizenship yet refused to elect it, preventing both groups from the ability to purchase, lease, or contract agricultural land.

The effect of the decision on the Japanese population was devastating. One other California alien land law case was decided on the same day as Terrace; two more followed a week later. Between 1920 and 1930, the Japanese population in Washington state increased by a mere 450 persons. Washington's alien land law remained on the books until repealed in 1966, after two attempts had failed to remove it.

Terrace was not the only blow. The Immigration and Naturalization Act ended Japanese immigration in 1924, ironically the very same year that Indians received citizenship.

IV. Manifest Destiny and Echoes of Terrace Today

Though the slogan of manifest destiny seldom finds its way into contemporary discourse, the sentiment it evokes is very much alive. Few Washingtonians may have heard of Terrace v. Thompson, yet its legacy is quite intact. By examining a state's racial history, one can see recurrent patterns that, somewhat like DNA, predictably replicate behavior. Washington, late to enter the Union, was considered by some to be the last bastion of untarnished land. Inhabited by peaceful Indians, untainted by slavery, not a place of seething multiracialism and immigration, it remained for decades an overwhelmingly white state. If you were white, you would likely be surrounded by people like yourself; if not, you might find yourself leading a lonely existence with chilly relations with your neighbors. If you were unlucky, you might encounter one of the region's Aryan supremacist groups that would make your life miserable.

If you were historically minded, you might suspect that the region's history had something to do with it. The reader will recall how Washington, while a territory, dispatched its Indians to miniscule, forlorn reservations. Chinese were excluded from immigration by federal law until 1943; local attitudes kept them on edge both before and after that. Japanese were cut off from agricultural livelihood and, not long after, interned. Black migration from the South was tolerated, but not encouraged. Mexican workers have lived, in large part, under the radar.

Immigration of undocumented workers, much of it Latino, has increased as global migration changed direction in the last few decades. Formerly from west to east, or in some cases east to west, migration now proceeds from south to north. The manifest-destiny agenda of multinational corporations has delivered free trade to Latin America via NAFTA, bringing profits to U.S.-based companies and poverty to countries south of our border. Mexican farmers cannot compete with U.S.-subsidized corn, a staple of the Mexican diet. These little-regarded consequences have resulted in a migration of millions of Latin American farm workers to the U.S. looking for ways to make a living wage, much as did Japanese agricultural workers in the early twentieth century.

Latino workers have been essential to agriculture in Washington for many years. As with other racial groups, sometimes they have been treated well or ignored. Recently, however, the nation's tangled immigration laws have subjected them to workplace raids, deportation, loss of benefits, and charges of unassimilability. Naturalization is but a dream for the undocumented, and the repeal of birthright citizenship a threat for their children who were born here. At the local level, states and municipalities seem to apply the same template of suspicion, nativism, and xenophobia to virtually all new groups, particularly if they look different than the majority population. Latinos' misfortunes in Washington and other states now echo those of indigenous people, the Japanese, and the Chinese before them. Terrace v. Thompson paved the way for Japanese internment during World War II. Will we be seeing more cases like it soon?

. Research Professor of Law, Seattle University.