§3.

4 NONBLACK RACIAL MINORITIES IN THE UNITED STATES

§3.4.1 The Chinese

The Chinese were the first Asians to immigrate to California. Primarily laborers from

Kwantung Province, they emigrated from China to escape the great hardships that

followed the Taiping Rebellion of 1850 to 1864. The discovery of gold at Sutter’s Mill in

1848 greatly increased the attractiveness of California for the Chinese. By 1879, the

Chinese population of California exceeded 111,000.1 Much of the immigration was the

product of the “coolie trade,” an arrangement by which Chinese laborers were imported

under contracts that amounted to a form of slavery. 2 The laborers quickly filled

California’s existing labor vacuums, and they provided an exceedingly cheap, efficient

labor force. Responsible for the completion of such construction as the Central Pacific

Railroad, the Chinese have been credited with much of California’s subsequent prosperity.

By 1860, however, they outnumbered the other immigrant groups in California and had

earned the animosity of white labor groups by being “too efficient.”3 The Democratic and

Republican parties were evenly matched at this period, and the labor vote of California

was crucial to them. A contest soon developed as to which party was more anti-Chinese.

Not surprisingly, a correlation existed between the economic situation and the level of

anti-Chinese agitation.4 The California legislature passed laws and regulations designed

specifically to create social and economic hardships for the Chinese. The statutes ranged

from a “foreign miner’s tax” to a “police tax” and a “cubic air” ordinance. Virtually all of
1
See S. W. Kung, Chinese in American Life, 3, 30, 66 (1962).
2
Gunther Barth, Bitter Strength 56-58 (1964).
3
Kung, supra note 1, at 68; Carey McWilliams, Brothers Under the Skin 102 (rev. ed. 1964).
4
See generally Ronald Takaki, Strangers from a Different Shore 79-130 (1989) (documenting the treatment
of Chinese immigrants in nineteenth-century America).
these laws were eventually declared unconstitutional, including the San Francisco

ordinance requiring operators of frame laundries to obtain a license. This law, which

appeared fair on its face but which actually was applied only to Chinese, resulted in the

famous equal protection decision Yick Wo v. Hopkins.5

Two important court decisions, however, were the source of great trouble to the

Chinese. In 1854, the California Supreme Court ruled that the laws of the state

intentionally excluded all people of color from giving evidence in court either for or

against a white person, and, in 1867, a federal court held that the Chinese aliens were not

eligible for naturalization. 6 To achieve their objective of excluding Asians, the anti-

Chinese forces realized that federal action was necessary. As a result of their political

pressure, a joint special committee was appointed by Congress to study the “Chinese

problem” in California. This committee concluded, in an oft-quoted report, that the

presence of Chinese in California was advantageous to the capitalists but deleterious to

the laboring classes. It also concluded that the intelligence of the Chinese was inferior to

that of other races, including Negroes, and that coolies were men of vice; it recommended

that they be denied naturalization and suffrage. The Fifteen Passengers Bill, which

limited to 15 the number of immigrants that a ship could bring from China, was proposed

and passed by Congress. It was vetoed, however, by the President, who considered it a

5
118 U.S. 356 (1886). See also United States v. Wong Kim Ark, 169 U.S. 649 (1898), establishing that a
Chinese born in the United States is a citizen, regardless of whether his parents are aliens. Ho Ali Kow v.
Noonan, 12 F. Cas. 252 (No. 6,546) (C.C.D. Cal. 1876), invalidated the infamous “queue ordinance.” Kung,
supra note 1, at 22, explains that under this ordinance every male imprisoned in the county jail was required
to have his hair cut to a uniform length of one inch from the scalp. As was well known, the custom of
wearing queues was observed by practically every Chinese. The Chinese community aggressively posed
sophisticated legal challenges to the grossly discriminatory legal restrictions imposed on them. See Charles
J. McClain, In Search of Equality (1994) (reviewing their ultimately losing efforts to fight law with law).
6
People v. Hall, 4 Cal. Rep. 399 (1854). The Californian Supreme Court overturned the conviction of a
white man convicted of killing a Chinese American because the conviction was based on the testimony of
Chinese persons.
violation of the Burlingame Treaty with China. This 1868 treaty did not give the Chinese

the right to enter the United States (no treaty was needed for this purpose, since it was not

until 1875 that Congress began to restrict immigration), but it recognized the “inalienable

right” of man to change his home and allegiance as well as the “mutual advantage of the

free migration of their citizens and subjects respectively from the one country to the other

for purposes of curiosity, of trade, or as permanent residents.”7 This treaty was negotiated

in 1880 to permit the United States to “regulate, limit, or suspend” the entrance of

Chinese laborers, but “not to absolutely prohibit it.” The power of interpretation was left

to Congress, although it was provided that “the limitation or suspension shall be

reasonable.”8 The Chinese Exclusion Act of 1882 9 became the first exclusively racial

immigration law.10 It was meant to carry into effect the treaty of 1880 by “suspending”

the immigration of Chinese laborers for 10 years. It provided, however, that the Chinese

laborers who had been in the United States since 1880 or who were to come within 90

days of the act’s passage had the right to depart from the United States and reenter with

an identifying certificate. In 1884, it was established that these certificates were the only

permissible evidence in establishing a right of reentry.11

The Scott Act of 1888 declared void all outstanding certificates (at the time,

numbering at least twenty thousand) and barred from reentering the United States all

Chinese laborers who had not done so before its passage.12 The Supreme Court upheld

7
See Milton Konvitz, The Alien and the Asiatic in American Law 5 (1946).
8
Act of May 6, 1882, 22 Stat. 826.
9
22 Stat. 58.
10
The second session of the first Congress, on March 26, 1790, enacted a naturalization law confining the
right of becoming citizens to “aliens being free white persons.” The law was cited by Chief Justice Taney
in Dred Scott v. Taney, 60 U.S. (19 How.) 393, 419 (1857), supporting his conclusion that Africans,
whether free or slave, were not intended by the Founding Fathers to hold citizenship.
11
Act of July 5, 1884, 9, 3 Stat. 115.
12
Act of Sept. 13, 1888, 25 Stat. 476.
this act in the “Chinese Exclusion Case.”13 Although the Court conceded that the act

contravened the treaties made with China, it held that treaties are not superior but equal to

acts of Congress, and, therefore, the last expression of sovereign will controlled. It ruled

that the power to exclude aliens is incident to sovereignty, which is delegated by the

Constitution. The Court also held that the vested property rights are unaffected by the

abrogation of a treaty, finding that it would be most mischievous if vested property rights

could be so nullified.

The Geary Act of 1892 extended the suspension for an additional 10 years, and, in

1902, the suspension was converted into permanent exclusion. 14 The Act of 1892

provided that all Chinese laborers lawfully in the United States were required to obtain

certificates of residence or face deportation. The Chinese raised large sums of money to

sponsor litigation challenging the constitutionality of the act, but the Supreme Court

upheld the Geary Act. The Court held that the determination of Congress was conclusive

on the judiciary, and that the government has the inalienable right to expel all of any class

of aliens, “absolutely or upon certain conditions, in war or in peace.”15 In its opinion, the

Court referred to the unassimilable character of the Chinese in the United States. In 1927,

the Court found that no equal protection violation resulted from the exclusion of a child

with some Chinese blood from white schools under state law.16 The United States entered

the Second World War as an ally of China, and, the wrath of the nation being turned on

Japan, American hostility to the Chinese was reduced. This change of heart, together with

a goodwill visit by Madam Chiang Kai-shek, led to the repeal of the exclusion acts,

13
Chae Chan Ping v. United States, 130 U.S. 581 (1889).
14
Act of May 5, 1892, 27 Stat. 25, 26; repealed, Dec. 17, 1943.
15
Fong Yue Ting v. United States, 149 U.S. 698 (1893).
16
Gong Lum v. Rice, 275 U.S. 78 (1927).
although not without strenuous opposition. The Act of 1943 repealed all previous

exclusion acts and established a token quota of one hundred Chinese immigrants.17 This

act was also a counter to Japanese propaganda against the United States. The Chinese

gained the right of naturalization and were thus taken out of the category of citizens

“ineligible for naturalization,” a phrase used in discriminatory laws against Asians. The

law remained prejudicial, however, in that only Asians did not fall under the “national

origins” system. A Chinese immigrant was put under the Chinese quota even though his

national origin was English or Malayan. In 1952, the Walter-McCarren Act was passed

over bitter debate and a presidential veto.18 The act retained the national origins system,

but special racial quotas were established for Chinese and other Asians indigenous to a

geographical Pacific triangle, drawn to include most Asian nations.

It was not until 1965 that an amendment to the 1952 Act eliminated the

discrimination against Asians in the immigration laws. 19 Specifically, the 1965 Act

abolished the special immigration restrictions relating to Asians and forbade

discrimination because of race, sex, nationality, place of birth, or place of residence.

These amendments, as well as special provisions to allow Chinese immigrants to enter

the country as refugees, have enabled the number of Chinese entering the United States to

increase tremendously. Ironically, the sudden flow of immigrants has severely strained

the social fabric of Chinese communities, to the point of disintegration, but this problem

stems from a different source than racial discrimination against immigrants, unless, of

17
Act of Dec. 17, 1943, 57 Stat. 600.
18
Act of June 27, 1952, Pub. L. No. 82-414, 66 Stat. 163, 8 U.S.C. §§1101 et seq. See Higham, American
Immigration Policy in Historical Perspective, 21 Law & Contemp. Prob. 235 (1956).
19
Act of Oct. 3, 1985, Pub. L. No. 89-236, 79 Stat. 911.
course, Chinatowns themselves are viewed as products of discrimination.20 The “Chinese

Exclusion Cases,” as they are called, have been brought to attention in the wake of

September 11 and the anti-Asian/anti-immigrant backlash that resulted. This topic is

discussed in more detail in §3.5.

Presently, it appears that all the racial discrimination in the immigration and

nationality laws has been eliminated. In a sense, the Chinese alien’s problems have been

diffused and have become a part of the general “alien’s problem.” As for the immigration

laws as a whole, serious issues of due process and equal protection remain. 21 In

administering immigration laws, administrative agencies have much discretion. The

Department of State, which issues the visas to aliens, has almost complete control over

the number of aliens entering, since applicants have no recourse against a consul’s denial

of a visa. Thus, as with the Native Americans, the Court’s willingness to defer to

Congressional “plenary power” remains a serious problem. 22 Beyond problems of

immigration, the Chinese in the United States are still widely thought to be intimately

tied to China, and, as their history would seem to indicate, the discrimination faced by

Americans of Chinese ancestry is in large part determined by Americans’ attitudes

towards China.23 Professor Taunya Banks discusses interminority racial bias by tracing

how the Chinese in Mississippi, who while a marginalized group when imported to work

in the post–Civil War period gained status as shopkeepers serving the black community,

20
See Chin, New York Chinatown Today: Community in Crisis, 1 Amerasia J. (Mar. 1971).
21
See Rosenfield, 1 Immigration Law (rev. 1970).
22
See Gabriel J. Chin, Segregation’s Last Stronghold: Race Discrimination and the Constitutional Law of
Immigration, 46 UCLA L. Rev. 1 (1998).
23
See Paula C. Johnson, The Social Construction of Identity in Criminal Cases: Cinéma Vérité and the
Pedagogy of Vincent Chin, 1 Mich. J. Race & L. 347 (1996).
subsequently developed the prejudices against blacks held by the whites who dominated

them both.24

§3.4.2 The Japanese

The Japanese, who in 1890 began immigrating to the United States in large numbers,

arrived on the West Coast at one of the most inopportune periods in American history.

Anti-Chinese feeling had reached its peak, and this hostility was easily transferred to the

new Asian arrivals. Japan stunned the world with her victory in the Russo-Japanese War

of 1905, and the military strength that Japan had displayed aroused fears of a “Yellow

peril” in the United States. 25 In 1906, the San Francisco Board of Education, then

controlled by the Labor party, decided to enforce an ordinance passed the previous year

that would segregate the city’s Asian children. In the context of events, the school

board’s action was highly, and intentionally, provocative. Protests were lodged in

Washington, and President Theodore Roosevelt denounced the ordinance as a “wicked

absurdity.”

A suit by the Attorney General to enjoin the enforcement of the ordinance was never

brought to trial, since President Roosevelt had negotiated the Gentlemen’s Agreement (by

which the Japanese government had agreed to restrict the flow of Japanese immigrants

entering the United States), and the appeased school board agreed not to enforce the

ordinance. California racists were not satisfied, however, and began to scream about a

loophole in the agreement that allowed the importation of Japanese “picture brides.” The

fears of a Mongoloid invasion and contamination rose, and the Japanese immigrants,
24
Taunya Lovell Banks, Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to
Coalition Building, 5 Asian L.J. 7 (1998).
25
McWilliams, supra note 3, at 142-145.
seeing this, petitioned the Japanese government not to allow any more Japanese women

to come to the United States, in order to preserve the status quo of the Gentlemen’s

Agreement.26 But racism and exclusion need not take the form of exclusion acts; in 1913,

California enacted the Alien Land Laws. Many states followed suit. The laws were

designed to prevent Japanese immigrants from earning a living in agriculture, thereby

driving them out of the state. The Japanese had filled the agricultural labor vacuum in

California, and again their fault was that they were “too efficient” and provided stiff

competition for other agricultural laborers. The first Alien Land Law was enacted in 1913,

and its constitutionality was established during the following decade. Nevertheless, for a

number of years prior to World War II, enforcement was only halfhearted. Legal

loopholes, administrative inactivity, and public indifference enabled Japanese aliens to

circumvent many of the prohibitions. Although they were excluded from the labor

movement and from many businesses, their ingenuity and hard work nevertheless enabled

the Japanese to do well in small farming and merchandizing.

But in the 1920s, the Alien Land Laws did not seem sufficiently restrictive to many

Americans, and in 1924 an exclusion act was passed. The Quota Act of 1924 excluded

from immigration “aliens ineligible to citizenship.”27 Japanese aliens were not to gain the

right to citizenship until the Walter-McCarren Act of 1952. Since the Chinese were

already excluded, the 1924 Act was obviously aimed at Japanese immigrants. Japan’s

sense of honor was greatly offended. She was still suffering from the Tokyo earthquake,

and the exclusion act was viewed as the direct opposite of Japan’s response to America’s

similar tragedy. (Japan had sent generous assistance to San Francisco in the aftermath of

26
Id. at 146
27
Act of May 26, 1924, 43 Stat. 153, 8 U.S.C. §§201 et seq.
its earthquake, just before the San Francisco School Board incident.) This direct affront

has been cited many times as one of the major factors that enabled the military to gain the

upper band in the Japanese government, leading eventually to World War II. 28 The

Japanese attacked Pearl Harbor on December 7, 1941. The next day, December 8, 1941,

the United States declared war on Japan, and all Japanese aliens were classified as

“enemy aliens.” On February 19, 1942, President Franklin Roosevelt issued Executive

Order 9066, “giving authority to certain military commanders to prescribe military areas

from which any or all persons may be excluded, and with respect to which the right to

enter, remain in, or leave, shall be subject to the discretion of the military commander,”

Lieutenant General John L. DeWitt. 29 Executive Order 9102 established the War

Relocation Authority on March 18, 1942.30 Significantly enough, certain pressure groups

— the Western Growers Protective Association, the American Legion, the Native Sons of

the Golden West, and various other groups — actively promoted the campaign to

evacuate the Japanese. Some other pressure groups were the Grower-Shipper Vegetable

Association, the Associated Farmers, and the California Farm Bureau. Carey McWilliams

has written:

There is an irony about mass evacuation which has somehow escaped attention. The

economic vulnerability of the Japanese on the West Coast made their removal possible

and this vulnerability had been brought about largely by external pressures and

discriminations. In Hawaii the Japanese were not nearly so vulnerable; indeed they were

the mainstay of the economic life of the Islands and hence could not be evacuated. . . .

28
See William Hosokawa, Nisei: The Quiet American 112-113 (1969).
29
Executive Order No. 9066, 7 Fed. Reg. 1407.
30
Executive Order No. 9102 and Executive Order No. 9066, 7 Fed. Reg. 1407.
Mass evacuation was not the product of wartime hysteria; it was the logical end-product,

the goal, of a strategy of dominance which began forty years earlier and which was

closely related to a similar strategy of American dominance in the Pacific. The resident

Japanese were always the hostages of this larger strategy.31

Three cases were brought before the Supreme Court to test the constitutionality of the

orders in three aspects: the curfew, the evacuation, and the internment. The first case,

Hirabyashi v. United States,32 presented the question whether the curfew restriction of

March 24, 1942, adopted by General DeWitt, was based on an unconstitutional

delegation by Congress of its legislative power and whether it unconstitutionally

discriminated between citizens of Japanese ancestry and those of other ancestries, in

violation of the Fifth Amendment. The Court acknowledged the hardships imposed by

the exclusion order on a large group of American citizens, but it affirmed the validity of

the restriction, stating:

We cannot say that these facts and circumstances, considered in the particular war

setting, could afford no ground for differentiating citizens of Japanese ancestry from

other groups in the United States. . . . We cannot close our eyes to the fact, demonstrated

by experience, that in time of war residents having ethnic affiliations with an invading

enemy may be a greater source of danger than those of a different ancestry.

In Korematsu v. United States, 33 the Court sustained the constitutionality of the

evacuation order in a six-to-three decision. In Justice Murphy’s dissenting opinion,

DeWitt was quoted as saying before a congressional committee: “I don’t want any of

31
McWillians, supra note 3, at 164.
32
320 U.S. 81, 101-102 (1943).
33
323 U.S. 214, 235 n.2 (dissenting opinion) (1944).
them here. They are a dangerous element. . . . It makes no difference whether he is an

American citizen, he is still a Japanese. . . . But we must worry about the Japanese all the

time until he is wiped off the map.” The same day that the Korematsu case was decided,

the Supreme Court also considered the case of Ex parte Endo, 34 which tested the

internment order. Endo sought release, on a writ of habeas corpus, from a War Relocation

Authority camp. The Court upheld the writ, but only on extremely narrow grounds: that

the detention was not authorized by the Congress or the President. The constitutional

question was expressly avoided.

Subsequent research by Peter Irons has revealed that the government fraudulently

concealed its actual reasons for the internment of Japanese-American citizens from the

Supreme Court during the litigation challenging the internment orders. 35 While the

Japanese were interned, much of their property was confiscated, stolen, or escheated.

Little compensation was given. One writer reports:

On July 2, 1948, President Truman signed into law the Japanese American

Evacuation Claims Act. The evacuees were given until January 3, 1950, to file claims

against the government. By that deadline they filed 23,689 claims asking a total of

$131,949,176 — one third of the sum the Federal Reserve Bank had estimated they had

lost. . . . In all, some, $38,000,000 was paid out in evacuation claims — less than 10 cents

for every dollar lost. Furthermore, claims were made on the basis of 1942 prices, and

payment was made in inflated postwar dollars. In terms of reduced purchasing power, the

34
323 U.S. 283 (1944).
35
See Peter Irons, Justice at War vii-ix (1983).
evacuees were paid only a nickel in compensation for every dollar they had lost as a

direct consequence of the evacuation.36

In addition to loss of freedom, property, educational opportunities, businesses, and

employment income, the 120,000 people of Japanese ancestry interned, more than two-

thirds of whom were native-born American citizens, were subjected to onerous living

conditions. They were forced to wear identification tags; and many suffered disease and

hardship from exposure to the elements, poor sanitation, and an inadequate diet. Exposed

to such conditions for up to four years, many died. In addition to disruption of familiar

life and customs, they lost all rights to privacy, even to the extent of performing ordinary

bodily functions. The intems had no freedom of expression or ability to communicate

freely with others outside the camps and were denied the right to use the Japanese

language or to read Japanese literature other than the Bible and the dictionary.

Nevertheless, they had to swear an oath of loyalty to the United States as a condition of

their release.37 In analyzing the overall effect of the wartime cases, Eugene Rostow has

written:

What the Supreme Court has done in these cases, especially in Korematsu v. U.S., is

to increase the strength of the military in relation to civil government. It has upheld an act

of military power without a factual record in which the justification for the act was

analyzed. Thus, it has created doubt as to the standards of responsibility to which the

36
Hosokawa, supra note 28, at 445-447. Compensation under the act was paid only for loss of property that
could be proved by records, 50 U.S.C. app. §1983(b). And once a claim was paid, the claimant waived all
rights to make any further claims against the United States arising out of the evacuation. 50 U.S.C. app.
§1984(d).
37
See Robert Wesley, Symposium: The Long Shadow of Korematsu, Many Billions Gone: Is It Time to
Reconsider the Case for Black Reparations, 40 B.C. L. Rev. 429, 449-450 (1998).
military power will be held. For the first time in American legal history, the Court has

seriously weakened the protection of our basic civil right, the writ of habeas corpus.38

The ease with which federal authorities had succumbed to old wives’ tales about

Black Dragon societies, emperor worship, and sabotage cults endowed anti-Nipponism

with an intellectual acceptability that it had not possessed during earlier periods.

Moreover, the federal program for relocation of the Japanese in 1942 provided an

unparalleled opportunity for the state governments to conduct investigations and to adopt

plans for systematic discrimination against the Japanese upon their return. Both the

Korematsu decision itself and the United States’ shameful history of internment of

Japanese Americans has taken on new relevance, unfortunately, in light of the post-

September 11 increase in anti-Asian violence and the institutionalization of ethnically

motivated government processes such as the Special Registration Program, which is

discussed in detail at the end of the chapter.

Accordingly, both the California and Oregon legislatures amended their laws during

the war years so as to provide for stricter control of Japanese land ownership, and in 1945

the Attorney General of California was given an appropriation to expedite: investigation

by the counties of evasion of the Alien Land Law. Upon ascertainment of evasion, the

state, in conjunction with the county, was to institute escheat proceedings divided

between state and county.

Such proceedings received judicial sanction by California courts but were struck

down by the Supreme Court in Oyama v. California. 39 By a six-to-three decision, the

38
Eugene Rostow, The Japanese-American Cases — A Disaster, 54 Yale L.J. 489 (1945); see also Konvitz,
supra note 7, at 244-276.
Court ruled that the escheat action was unconstitutional because it was a denial of equal

protection to the citizens in whose name the alien father had placed his property. The

Oyama case established the escheat action as unconstitutional. Later litigation voided the

Alien Land Law.

In another important case, Takahashi v. Fish and Game Commission,40 the right of

Issei (first-generation Japanese immigrants) to engage in commercial fishing was upheld

by the Supreme Court. California had denied commercial fishing licenses to “aliens

ineligible to citizenship” on the pretext that this was a conservation measure. The

question presented was: Can California, consistently with the Constitution, use this

federally created racial ineligibility for citizenship as a basis for barring Takahashi from

earning his living as a commercial fisherman? The Supreme Court held that this violated

the Equal Protection Clause and conflicted with the federal power to regulate

immigration.

After great pressure was brought, President Reagan signed the Civil Liberties Act of

1988, setting in motion the statutory means by which Japanese Americans would begin to

receive federal reparations payments.41 Government implementation of the measure has

been slow, and it is estimated that only about sixty thousand survivors or their next of kin

will be paid. About half of the internment survivors died before the legislation was

passed.42

§3.4.3 The Mexicans

39
332 U.S. 633 (1948). See The Alien Land Laws: A Reappraisal, 56 Yale L.J. 1017-1036 (1946-1947);
Anti-Japanese Land Laws of California and Ten Other States, 35 Cal. L. Rev. 7 (1947).
40
334 U.S. 410 (1948).
41
50 U.S.C. app. §§1984(b)(4), (d).
42
Wesley, supra note 37, at 451.
 When the Mexican American War ended in 1848, approximately 75,000 Spanish-

speaking people lived in the borderlands that were now U.S. territory. In these areas (later

to become the states of Texas, New Mexico, California, Arizona, and Colorado),

immigrants from the south had begun establishing settlements in the early sixteenth

century. Santa Fe had been functioning as the capital of “Nuevo Santander” (the Spanish

name for New Mexico) for some 20 years before Jamestown was established in 1607.

Living in isolation on land that was as yet hardly penetrated by traders and explorers

from the eastern states, the settlers had until the 1820s only infrequent contact with

Anglos (non-Spanish-speaking people), and this contact had not been antagonistic.

The Southwest Territories passed from Spanish rule to Mexican sovereignty in 1821,

when Mexico declared its independence from Spain. Mexico experienced severe internal

political problems for about the next twenty years, and these problems culminated with

the secession of Texas from Mexico in 1836. Mexico considered the 1845 Act of

Annexation, under which Congress allowed Texas to enter the Union, an act of war, and

armed conflict ensued in 1846.

The result for the United States of the Mexican American War was the annexation of

Texas and the rest of the southwest Territories. The Treaty of Guadalupe Hidalgo, signed

on February 2, 1848, codified the secession and annexation of the Southwest Territories.

The treaty further guaranteed both the civil and property rights of the Mexicans who

agreed to become American citizens. An estimated 75,000 Mexicanos accepted American

citizenship, but, as with other “nonwhite” Americans, neither citizenship nor treaties

provided protection. Certainly, the treaty failed to protect the Chicano.43 The borderlands

43
“Chicano,” a diminutive of “mejicano,” was first used as a sobriquet, “given in sympathy and
exasperation,” for the refugees from the Mexican Revolution in the years following 1910. On the
of Mexico, part of a country long regarded by many Americans as poor, degenerate, and

uncivilized, fell quickly to the surge of Anglos who migrated there. The war with Mexico

had left a heritage of hatred, hostility, and contempt. The Anglos who flooded the

southwest had little appreciation for the economic, cultural, and political history of the

Chicanos, who fell victim to all the sufferings endured by a conquered people.

The pattern of oppression and discrimination that has characterized Anglo-Hispano

relations for more than a century emerged in the course of westward expansion. Anglos

were determined to take possession of the land. The pattern was reinforced when the

demands of economic development created a need for cheap labor, a demand easily filled

by successive waves of immigrants from Mexico. In the competition for land and for

control over other resources, the provisions of the Treaty of Guadalupe Hidalgo

guaranteeing the cultural autonomy and property rights of the Spanish-speaking

inhabitants were forgotten.

The arrival of the transcontinental railroads created strong pressures for economic

development and increased the competition for control over the land. Mexican Americans

were disadvantaged in their struggle for survival, not only by their small numbers (in

1860 they constituted only one tenth of the population of the southwest as a whole), but

also by the cultural and geographical isolation they had experienced for generations. The

“Spanish Colonials,” descendants of the earliest Spanish-speaking settlers, acted as a

buffer group between more recent arrivals and the dominant Anglo culture; while they

thus helped to soften the impact of an alien and antagonistic social environment, they also

inspiration of Rudolfo “Corky” Gonzales, the militants have adopted it to “announce a distinct people, once
suppressed but now reclaiming their integrity.” Womack, The Chicanos, N.Y. Review of Books, Aug. 31,
1972, at 12, 14. In the “barrio” (that is, the Mexican American community), the word had long been used to
distinguish Mexican Americans from Mexican citizens.
impeded the development of group consciousness and self-organization among the

Chicano masses.

Protest was not lacking in the nineteenth century, but it was unsuccessful. Courtroom

battles were lost, and the few organizations that fought for Mexican American rights —

the Knights of Labor, the Gorras Blancos — fought in vain. 44 According to Carey

McWilliams, political participation was suppressed by such techniques as withholding

statehood from Arizona and New Mexico until 1912 — until, that is, Anglos had achieved

numerical superiority. In New Mexico, California, and Texas, the native upper-class

Hispanos collaborated with the Anglos and bought off the Chicano masses with favors

and minor patronage. 45 Organizing efforts were more successful after the Mexican

Revolution of 1910, which produced a flood of new migrants — some 800,000 between

1910 and 1920. Even so, economic conditions continued to favor the exploitation of

cheap labor. Federally financed irrigation of desert lands, which began in 1902, was felt

in the mid-1920s when changes in American eating habits created a great demand for

fruits and vegetables and new packaging methods made mass production feasible. One

writer estimates that Mexican Americans provided about 75 percent of the labor that

grew these crops. In addition, between 1910 and 1930, most of the cotton field-workers

in Arizona, Texas, and California; 60 percent of the mine workers; and 80 percent of the

railroad workers in the western states were Mexican Americans.46 With the advent of

“agri-business,” the farm-village economy disintegrated, and the isolation that had

rendered unity difficult came to an end. In addition, self-perception was influenced by

44
See Womack, supra note 43, at 12.
45
McWilliams, supra note 3, at 134.
46
Cohen, The Failure of the Melting Pot, in The Great Fear: Race in the Mind of America 150 (Gary Nash
& Richard Weiss eds., 1970).
revolutionary foment in Mexico: A new pride and self-confidence was born out of

identification with the Mexican Indian, rather than from spurious links with the Spanish

heritage. The League of Latin American Citizens (LULAC), a “self-improvement” group,

was established in 1927, and in 1928 and 1930 migrant workers, organized as the

Confederación de Uniones Obreras Mexicanas, staged strikes in southern California. “But

the tougher the fights, the uglier the defeats; though LULAC citizened along, the

Confederation was busted with tear gas and clubs.”47 Strikers were arrested or kidnapped

and beaten by the growers’ henchmen, and strike leaders were deported. Organized labor

discriminated against Mexican Americans by excluding them from established unions

and by creating ethnic wage differentials. The availability of “cheap Mexican labor”

caused resentment among Anglos who could not exploit it for their own benefit. By the

mid-1920s immigration laws were being enforced by “border patrols.” Nevertheless, at

least half a million Mexicans entered the United States between, 1920 and 1929; this is a

conservative estimate, because nothing officially records the number of illegal entrants,

which may have reached into in the hundreds of thousands. Agitation increased during

the Depression; nearly 500,000 Mexican Americans, probably half of them American

citizens, were deported.

World War II marked a turning point: The manpower shortage created by the war

meant new opportunities for Chicanos, as did the postwar boom. But entry into higher

echelons of the economy did not ensure an end to discrimination or vigilante action. On

the contrary, Anglos reacted violently. Shortly after the “relocation” of Japanese

Americans, Californians directed their xenophobia at Mexican Americans in a

“Campaign of Terror” that culminated in the “Zoot-Suit Riots” of June 1943. For a week,
47
Womack, supra note 43, at 13.
Anglo soldiers, policemen, and civilians rampaged in the Mexican American ghetto of

Los Angeles, beating and stabbing their victims, many of whom were then arrested.

Token social reform followed in the wake of economic progress. In 1947, segregated

schools for Mexican Americans were outlawed.48 The Community Services Organization

(founded in 1947) and the G1 Forum (1948) reflected increasing self-awareness and self-

assertiveness. By the early 1960s, Chicanos were participating with some success in the

political process. “Viva Kennedy” clubs brought out the Chicano vote for John F.

Kennedy, and Mexican American organizations helped to elect a few congressmen.

Militancy increased in the wake of the civil rights movement. Some money became

available to Chicano activists in 1964 and 1965 as a result of the War on Poverty, but the

Delano grape strike led by César Chávez undoubtedly had a greater impact on Chicanos

than on American society at large. Activism has ranged from unionization of migrant

workers to organization of Brown Beret self-defense units in the barrios and walkouts by

high school students in protest against racist teachers and curricula. The rallying cry for

protest was la raza “the people.” Later, the movement split into “integrationist” and

“separatist” branches. Internal ideological disputes evidenced a sense of success or at

least of increased self-confidence.

Response at the federal level has consisted of the Bilingual Education Act49 and the

appointments by the Nixon and subsequent administrations of some Spanish-speaking

persons to government posts. But a great many Mexican American families still earn a

median income of only two-thirds that of Anglo families in the southwest, and millions of

48
Westminster Sch. Dist. v. Mendez, 161 F.2d 774 (9th Cir. 1947); similar action was taken in Texas in
1948, Delgado v. Bastrop Indep. Sch. Dist., Civ. No. 388 (W.D. Tex., June 15, 1948). See Rachel F. Moran,
Bilingual Education as a Status Conflict 75 Cal. L. Rev. 321 (1987) (analyzing controversy over bilingual
education as conflict over status between Anglos and Latinos).
49
20 U.S.C. §§880(a) et seq. (1968).
Chicanos in that region are living at a subsistence level. Now about 80 percent urbanized,

Chicanos are still crowded into “Mextown” ghettos.

In a series of school cases, courts have recognized Mexican American students as a

cognizable ethnic group who have been the victims of segregated schools no less than

have blacks and who are thus as entitled as blacks to the protection afforded by the

Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. Not surprisingly,

the position of Chicanos in terms of both earning power and employment is analogous to

the deprivation and discrimination they have suffered in the area of education. The

Mexican American Legal Defense and Educational Fund initiated a number of lawsuits

based on Title VII, the employment discrimination section of the Civil Rights Act of

1964. The group cites statistics showing that employment discrimination directed against

the Chicano remains prevalent. In the southwest, the unemployment rate of Chicanos is

twice that of Anglos; Fund members maintain that even this figure does not reflect the

true situation, since chronically underemployed farm workers are not included in the

statistics. Because of the long tradition of economic and social deprivation, the Chicano

has been denied a basic opportunity to participate in the political process.

And American immigration policy as directed at Mexican Americans retains the

hallmarks of racism that mark the history of U.S. immigration policy in general.

Professor Kevin Johnson, in a lengthy article reviewing U.S. immigration policy visited

on people of color, reports:

Despite the fact that undocumented persons come from nations all over the world, the

near exclusive focus of governmental and public attention at the tail end of the twentieth

century has been on undocumented immigration from Mexico. The racial impact of the
push to crack down on “illegal aliens” is unmistakable. Well-publicized border

enforcement operations, little different from military operations, in El Paso, Texas

(Operation Blockade, later renamed Operation Hold the Line due to protests from the

Mexican Government) and San Diego, California (Operation Gatekeeper) have been

aimed at sealing the U.S.–Mexico border and keeping undocumented Mexican citizens

from entering the United States. Indeed, U.S. military forces assisted the Immigration &

Naturalization Service (INS) in policing the border. At the same time, reported abuses

against Mexican nationals along the border continue unabated. For example, in 1997, a

U.S. Marine on patrol shot and killed a teenager, Esequiel Hernandez, Jr. (a U.S. citizen

who had no criminal record) while he was herding his family’s goats near the border. The

U.S. General Accounting Office found that, despite the border enforcement buildup, the

evidence was inconclusive about whether the strategy had proven effective.50

The comparison of how the law has addressed racial issues with other nonwhites

offers a fearsome insight into how the dominant society, even today, would treat African

Americans given sufficient political and economic motivation. The legal protections,

barely adequate in normal times, would provide little insulation against the racial hostility

against blacks that seems always lurking just beneath an all too thin veneer of racial

civility.

In addition to demonstrating how U.S. law treats those it considers “foreign,” the

differential treatment of citizens and noncitizens serves as a “magic mirror,” revealing

50
Kevin R. Johnson, Race, the Immigration Laws, and Domestic Race Relations: A “Magic Mirror” into
the Heart of Darkness, 73 Ind. L.J. 1111, 1137-1138 (1998). See also Cecelia M. Espenoza, The Illusory
Provisions of Sanctions: The Immigration Reform and Control Act of 1986, 8 Geo. Immigr. L.J. 343 (1994)
(arguing for elimination of sanctions because of their ineffectiveness and because they have increased
discrimination against persons of Mexican ancestry).
how dominant society might treat domestic minorities if legal constraints were abrogated.

Indeed, the harsh treatment of noncitizens of color reveals terrifying lessons about how

society views citizens of color.