Saturday, January 22, 2022

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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.

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