On March 8, 1921, Washington Governor Louis F. Hart (1862-1929) signs the Alien Land Bill, which bars non-white immigrants from buying, owning, or leasing land in the state and mandates confiscation without compensation of any lands purchased before or after passage of the act. This statute is the latest, and most draconian by far, enacted by territorial and state legislators to deter immigration or permanent residency by groups deemed undesirable. The first target, in the 1800s, was Chinese immigrants. The Alien Land Bill, although not saying so explicitly, was primarily directed against Japanese immigrants, agriculturalists in particular. The bill, like similar measures in other states, is defended as necessary to protect the rights of American citizens. Much later, alien land laws will come to be seen for what they were -- xenophobic, nativist, and racist. Despite evolving public attitudes and greater racial tolerance, the 1921 law will not be formally repealed and immigrant rights officially restored until 1967.
Immigration, Naturalization, and Alien Rights
For most of America's history, immigration law implicated three separate but entwined issues. The most basic was the question of who would be allowed to enter the country. Remarkably, for more than 100 years after independence the federal government had little to say on the subject; most immigrants were from Europe and it was considered necessary to populate the new nation's vast lands.
The second issue concerned which immigrants would qualify for American citizenship, and Congress spoke quickly on this. The Naturalization Act of 1790 limited the privilege to "free white persons" of good moral character who had resided in the country for at least two years (1 Stat. 103). Much later some exceptions were made. The 14th Amendment to the U.S. Constitution, ratified in 1868 shortly after the Civil War ended and slavery was abolished, normalized the status of former slaves and their children, making citizens of "all persons born or naturalized in the United States" (U.S. Const. amend. XIV, sec. 2). The Naturalization Act of 1870 extended naturalization rights "to aliens of African nativity and to persons of African descent" (16 Stat. 256). In 1898, the U.S. Supreme Court, in United States v. Wong Kim Ark, ruled that the 14th Amendment meant what it said, and that any child born in the United States, regardless of the origin or immigration status of the child's parents, was an American citizen. But the facially racist "free white" standard of the 1790 act remained embedded in the fabric of American law like a bothersome thistle, and it would remain on the books until 1952.
The creation of two classes of immigrants -- those eligible for citizenship and those not -- raised a third issue: What legal rights should be given to those who could never become citizens? Of particular importance, both economically and psychologically, were the rights to buy and sell land, to hold title securely, and to pass ownership on to one's heirs, by will or intestate succession. This question was left largely up to the states, and it was in state legislatures, particularly in the West, that some of the basest instincts of America's white majority found expression.
Alien Land Laws: The Liberal Era
Under England's common law, non-citizens could acquire land, but the monarch could arbitrarily confiscate it without compensation. This frailty followed title -- confiscation could occur even after an alien had transferred ownership to an English citizen. While not outright prohibiting alien land ownership, the English common law made it very tenuous.
The American colonies, desperate for immigrants, tried to evade these restrictions in several ways, including liberal naturalization procedures. The Crown was not amused, and in 1773 the English governors of the colonies were ordered to veto any legislation that eased impediments to alien land ownership. This was no small issue -- one justification for rebellion listed in the Declaration of Independence was that the Crown had "endeavored to prevent the population of these States: for that purpose obstructing the Laws of Naturalization of Foreigners" (Declaration of Independence, para. 9).
After independence, the approach to aliens' property rights was generally liberal. In 1804 Ohio, the first state to address the issue, granted "any and all aliens" the same rights in land as full citizens (1804 Ohio Laws 123). Similar statutes were adopted in most of the young nation's other states, then trickled down to the territories as the tide of settlement moved west. On January 27, 1864, Washington's territorial assembly passed a law, based on one inherited from Oregon, that gave all aliens the right "to acquire and hold lands, or any right thereto, or interest therein ... as if such alien were a native citizen of this Territory, or of the United States" (1863 Wash. Terr. Laws 12).
This liberality reflected the fact that, as the 1860 federal census found, most foreign-born residents who settled in Washington Territory between 1850 and 1860 were of European descent -- "free white persons" -- and thus eligible for citizenship. This conclusion is amply evidenced by a different law passed earlier in the 1863 session, the title of which says it all: "An Act to Protect Free White Labor Against Competition with Chinese Coolie Labor, and to Discourage the Immigration of the Chinese into This Territory" (1863 Wash. Terr. Laws 56). Inspired by one passed in California two years earlier, the statute imposed a "police tax" on every "person, male and female, of the Mongolian race, of the age of eighteen years and upwards, residing in this Territory" (1863 Wash. Terr. Laws 56, Sec. 1). Still, there was nothing in the statutes up to that point that forbade land ownership by aliens, Chinese or otherwise.
Needed, but Not Wanted
The California Gold Rush began at Sutter's Mill in 1848 and drew waves of hopefuls from all over the world including, by 1860, nearly 35,000 from China. By then the gold fields were pretty much played out, but Chinese laborers remained, most doing work for low wages that the majority population shunned as too difficult, too tedious, or too dangerous. China was beset then by famine and war, and even a subsistence existence in America was a better alternative for many. But Chinese workers often lived desolate lives -- largely men, separated from wives and families, living in shantytowns and work camps, and generally despised by the rest of society.
When the gold ran out and the economy cooled, resentment against the Chinese grew. Between 1860 and 1870 California's legislature passed multiple laws intended to discourage their presence. Almost all were either quickly repealed or ruled unconstitutional, but the message was clear -- Chinese residents were not welcome in the Golden State.
Meanwhile, gold was found in scattered areas of Oregon and Washington Territory. Several hundred Chinese workers came north in the late 1850s and early 1860s, many to glean fragments of gold from claims that earlier miners had abandoned as being worked out. Soon enough even this was gone, and they sought other work, with many toiling, and often dying, laying railroad track through a land that was still mostly unsettled. Washington Territory, just a few years old, was rich in natural resources and rife with big plans, but lacked sufficient manpower to develop either. As the 1864 police-tax law demonstrated, Chinese laborers were not welcome in Washington Territory in the 1860s, but they were badly needed. This tension between the demand for cheap labor and prejudice against foreign "others" would play out in increasingly regrettable ways well into the twentieth century.
In 1878 Washington Territory made a premature stab at statehood with a First Constitutional Convention. The delegates drafted a proposed constitution that, although a dead letter, evidenced an inclination to limit the property rights of aliens. Article V, Section 18, stated: "All laws in relation to the possession, enjoyment and descent of property, shall be alike applicable to resident aliens and citizens" ("Washington's First Constitution ..."). The qualifier "resident" was designed to deter foreign corporations and absentee landlords, but it marked a departure from the openness of the territory's first 15 years.
In 1882, a century after independence, the U.S. Congress passed the first federal law to restrict immigration. The Chinese Exclusion Act barred entry by Chinese laborers for 10 years and explicitly prohibited all Chinese from becoming U.S. citizens. In 1892 the ban was extended for another 10 years, and in 1902 it was made permanent. It was not repealed until 1943, when China was an ally during World War II.
In 1885, responding to growing resentment against Chinese immigrants, the Washington Territorial Assembly made a small amendment to the 1863 law, one that had huge consequences. The right to acquire, hold, sell, and devise land that had been granted to all aliens in 1864 was now withheld from those aliens who "by the laws of the United States, are incapable of becoming citizens of the United States" (1885 Wash. Terr. Laws 102). It will be recalled that the first federal law on naturalization, enacted in 1790, had made citizenship available only to immigrants who were "free white persons," a qualification that endured throughout the 1800s and would for half a century longer. So, while clearly targeted primarily at Chinese immigrants, the 1885 territorial law equally affected all non-white immigrants (except those of African descent, who were protected by the Naturalization Act of 1870). One can reasonably doubt that this was an unintended consequence.
Each economic downturn, whatever the cause, brought increased enmity against those who were identifiably foreign and competing with "real" Americans for scarce jobs. The deep animus in the West toward Chinese laborers only increased as the railroads neared completion and the population of white, American-born residents grew dramatically. By 1885 Washington Territory's population was about 130,000. Approximately 3,200 were Chinese, and they were increasingly regarded as both unwanted and unneeded.
An Ugly Time
Some of the anti-Chinese animosity was grounded in economic fears, but racism and xenophobia were the dominant forces at play. During the mid-1880s, violent anti-Chinese riots broke out up and down the West Coast, including in Seattle and Tacoma. There also was an element of class division in the attitudes of the white population, as described by one historian:
"The upper classes generally supported the Chinese and defended them during the Seattle riots. They saw the need for laborers on the rails and in the mines and knew that Chinese could often be forced to work for less than whites, driving all wages down ... Working-class organizations like the Populists, Progressives and Knights of Labor, on the other hand, tapped into the resentment of white workers and farmers and feverishly propagated the anti-Chinese hysteria and spearheaded campaigns for anti-alien land laws" (Grant, 3).
Fear, hate, and anger prevailed. Large numbers of Chinese residents, many of whom had been in the country for two decades and more, were driven out of Washington, another shameful episode in the long and lamentable history of American nativism.
Any lingering doubts about the property rights of non-white immigrants in Washington were put to rest by a provision approved at the constitutional convention in the summer of 1889: "The ownership of land by aliens, other than those who in good faith have declared their intention to become citizens of the United States, is prohibited in this state except where acquired by inheritance, under mortgage or in good faith in the ordinary course of justice in the collection of debts" (Washington State Constitution, Art. 2, Sec. 33, original text). Every corporation in which the majority of stock was owned by aliens would be considered an alien, and so treated. To promote the development of certain natural resources, excluded from the prohibition of alien ownership were "lands containing valuable deposits of minerals, metals, iron, coal, or fire clay, and the necessary land for mills and machinery to be used in the development thereof and the manufacture of the products therefrom" (Washington State Constitution, Art. 2, Sec. 33, original text).
A legal restriction that had been embodied only in a territorial statute and could be modified or nullified by later legislatures was now enshrined in the founding document of the state of Washington. There it would remain until 1966.
The Japanese Experience
Many Washington industries and businesses had thrived using low-paid, hardworking Chinese immigrants, and their removal from the labor market was sorely felt by the later 1880s. To fill the gap, active recruitment of Japanese laborers began, aided by strong diplomatic ties between Japan and America. These new immigrants were both treated differently and followed a different path than the Chinese workers. Japanese laborers were permitted to bring their wives to America, or to have prospective brides selected by their families and sent over. As family units, these immigrants were much more like settlers than wifeless, childless, itinerant workers. Although Japanese men did assume much of the migrant labor previously done by Chinese workers, many others sought out non-seasonal agricultural work. This fostered a sense of permanency and allowed their children to attend school. Eventually many were able to lease plots of land to grow crops, frequently with considerable success.
White society would not permit assimilation by the Japanese, so immigrants created their own communities, operated their own businesses, educated their children, and created, in many places, small, prosperous, and cohesive communities embedded in a larger society that for the most part rejected them. Nineteenth-century Chinese immigrants, almost exclusively male, had seldom been able to stay in one place, and their forced itinerancy fed white suspicions of immorality and criminality. By the first decade of the twentieth century, Japanese immigrants were equally vilified, but for different reasons:
"[T]he racism targeting the Japanese bore a different character, one not just of felt white supremacy but also of white jealousy. It was the appearance of Japanese success, in farming and business, which enraged many whites" (Grant, 4).
The Politics of Prejudice
Public animosity toward the Japanese was at times less fervid and consistent than that against the Chinese. Certainly, virulent anti-Japanese organizations sprang up in California as early as 1905, and labor groups in Oregon and Washington, which otherwise were foot soldiers for progressive causes, railed against immigrants for competing with white workers for jobs. But a decade later, Japan and America were allies during World War I, and this for a time reduced tensions at home. Many Japanese businesses participated with labor in the Seattle General Strike of 1919, and this helped to ameliorate the deep hostility of white workers. But these easings proved fragile and temporary, and other events -- including the Bolshevik Revolution in Russia, a strong backlash against labor in the wake of the General Strike, and Japan's growing imperial might -- only increased the xenophobia that was loose in the land. If Japanese immigrants held one strong card, it was that Japan was now a major world power, one with which the American government hoped to maintain good relations. It wasn't enough, and first California (in 1913 and, by initiative, in 1920), then Washington (1921), then Oregon (1923) passed stringent laws that, while racially neutral on their face, were targeted almost exclusively at the Japanese.
In Washington, Japanese immigrants had persevered and prospered despite widespread prejudice. By 1920, Japanese farmers supplied nearly 75 percent of the vegetables consumed in King County and nearly half the dairy products. Success of this sort was not seen by the majority population as admirable, but rather as a threat, and the state's gubernatorial and legislative election campaigns in 1920 were characterized by candidates jockeying to appear more anti-Japanese than their opponents. It was a winning strategy, and when the legislature met in 1921, it was ready to act on campaign promises.
The Alien Land Bill
In early February 1921, the first public hearing was held on House Bill 79, the Alien Land Bill, which had been introduced by Representatives Adam Beeler of Seattle (1879-1947), who later became a state Supreme Court justice, and James T. Jones of Kent, both Republicans. Debate went on throughout that month. There was some opposition, but the House passed the measure in the last week of February and as March approached it was clear that it had gathered sufficient votes to ensure passage in the Senate as well. There was a slight delay as Republicans sought assurance from Washington, D.C., that incoming President Warren G. Harding (1864-1923), a fellow Republican, would not oppose the state measure.
On March 2, Senator Howard D. Taylor (1878-1944), another King County Republican, quoting from a document that he would not share, advised the Senate that incoming President Harding would not even mention Japan in his inaugural speech two days later. Taylor then delivered an angry tirade demanding immediate passage of the Alien Land Bill:
"I have waited two years for this day in court. No district of the state is so affected by the presence of the Japanese as mine, comprising the great White River Valley and the whole southern end of King County. They are in possession of the farm land and have their schools where they teach antagonism to the United States. They are taking the country from us ... Certain business interests in Seattle are fighting this bill because they care more for the Japanese dollars than they do for the people of this state" ("Alien Land Bill Up to Governor").
The bill passed the Senate with just two dissenting votes, those of Senators E. B. Palmer and Thomas D. Rockwell, both King County Republicans. Later that same day the House approved the minor changes made by the Senate, and the bill was sent to Governor Louis F. Hart, who signed it into law on March 8, 1921.
The Alien Land Bill was a nasty and disingenuous piece of work. The legislative debates had demonstrated that the bill's primary -- perhaps only -- intent was to prevent Japanese farmers from buying or leasing land, but its ambit was much broader. It did not explicitly designate the Japanese, but used the well-worn linguistic evasion that had first been used in the 1885 territorial statute. Only an alien who had "in good faith declared his intention to become a citizen of the United States" would be exempt from the law, which would otherwise apply to "all other aliens and corporations and other organized groups of persons a majority of whose capital stock is owned or controlled by aliens or a majority of whose members are aliens" (1921 Wash. Laws, Ch. 50, Sec. 1). Since the 1790 Naturalization Act granted the privilege to become citizens only to "free white persons," Japanese immigrants could not "in good faith" declare an intention to become something that a 131-year-old federal statute did not permit them to be.
In addition to prohibiting future purchases or leases of land by aliens, the act mandated forfeiture to the state of any land "now held by or for an alien in violation of the constitution" (1921 Laws 50, Sec. 2). And, of course, Art. 2, Sec. 33 of the 1889 constitution limited ownership rights to aliens who had declared an intent to become citizens, which only free whites could legally do. Looking ahead, the statute provided that "Land hereafter conveyed to or for the use of aliens in violation of the constitution or of this act shall thereby be forfeited to and become the property of the state" (1921 Laws 50, Sec. 2).
Even forfeiture was not enough; the Alien Land Bill also criminalized any attempts to evade its prohibitions, directed primarily at those who would dare to do business with an alien. The first two criminal prohibitions were selling land to an alien or holding land in trust for an alien. The next four sections required that anyone in violation of either of the first two provisions had the duty to disclose that violation to the state attorney general or the prosecuting attorney for the county in which the property was located. While this would seem to implicate the self-incrimination protections of both Article 1, Sec. 9, of the state constitution and the Fifth Amendment to the U.S. Constitution, there is no indication that it gave the legislature pause. The final crime enumerated was directed to anyone who "Wilfully counsels, aids or abets another in violating or evading this act" (1921 Laws 50, Sec. 7[g]). Anyone violating any of the provisions was deemed guilty of a gross misdemeanor.
A Long Time Coming
The Alien Land Bill had an immediate and drastic effect. The 1920 census counted 17,387 Japanese residents in the state, and over the next 10 years that number increased by only 450. After its passage the act was amended several times, usually to make it even more rigorous. One loophole that was quickly blocked was the attempt by some Japanese parents to put land in the name of an American-born child. In 1923 the statute was amended to create a presumption than any land held in the name of an alien's minor child was held in trust for the parent, and thus a violation of the law.
Shortly after Japan attacked Pearl Harbor in December 1941, many Americans of Japanese descent, both those who remained legal aliens and those who were citizens by virtue of birth in this country, faced worse treatment than even the Alien Land Bill had dealt them a generation earlier. On February 19, 1942, President Franklin D. Roosevelt (1882-1945) signed Executive Order 9066, and approximately 120,000 men, women, and children of Japanese ancestry living on the West Coast were moved to incarceration camps inland.
After victory in World War II, the tide of public sentiment in American slowly changed. In 1948 the U.S. Supreme Court, in Oyama v. California, ruled that California's Alien Land Law was unconstitutional. The Immigration and Naturalization Act of 1952 was a product of the paranoia of the McCarthy era and objectionable in many ways -- President Harry S. Truman (1884-1972) vetoed it as un-American, but the veto was overridden. But it did right one very longstanding wrong. Section 311 read, in relevant part, "The right of a person to become a naturalized citizen of the United States shall not be denied or abridged because of race or sex or because such person is married" (66 Stat. Ch. 2, Sec. 311). The "free white person" qualification from the Naturalization Act of 1790 that had haunted immigrant rights for 162 years was finally gone.
Article II, Section 33, of the In Washington State Constitution was amended twice, in 1950 and 1954, each time becoming marginally more lenient. By the mid-1960s time had fully passed it by. On November 8, 1966, voters approved the 42nd Amendment to the state constitution, repealing Section 33. One year later, the legislature repealed the Alien Land Bill of 1921. Its replacement, in most relevant part, reads: "Any alien may acquire and hold land, or any right thereto, or interest therein ... as if such alien were a native citizen of this state or of the United States" (1967 Wash. Laws, Ch. 163, Sec. 2). Substitute "this territory" for "this state" and the provision is identical to the liberal territorial statute of 1864, which remained in effect until 1885. After that came 82 years of injustice until things were finally, at least for the time being, put right. But in America, statutory law most often reflects the mores and prejudices of its time and place, and history has demonstrated again and again that these are not fixed standards.