Stories from the Negative Space: United States v. Thind and the Narrative of (non)whiteness

• Publication year: 2023

Stories from the Negative Space: United States v. Thind and the Narrative of (Non)Whiteness

Joy Kanwar

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STORIES FROM THE NEGATIVE SPACES: United States v. Thind and the Narrative of (Non)Whiteness

Joy Kanwar^*

"You must never be limited by external authority, whether it be vested in a church, [person] or book. It is your right to question, challenge, and investigate." - Bhagat Singh Thind

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For years, Bhagat Singh Thind's case has resonated in my mind. I thought of it in the days after September 11, 2001, when a group of attorneys and I scrambled to organize in the South Asian legal community as brown people became targets for hate crimes overnight. I thought of it a few years later when representing Rajinder Singh Bammi, a Sikh livery cab driver who was beaten within an inch of his life by young men of Italian ancestry leaving a Queens restaurant after celebrating a christening. I thought of it every time I saw a documentary about the "Third Reich" and its iconography stolen from Hindu culture, which like many things stolen, undoes the original stories so they are unrecognizable. I thought of it when reading Isabel Wilkerson's work on caste, fully understanding, as Thind did, that "high caste" status can sometimes pave an easier path. I thought of it, too, when I saw Kamala Harris become the first woman, first Black person, and first South Asian person to ever win the office of the Vice President of the United States of America. And now I think of it as incidents of hate spiral out against Asian American Pacific Islander (AAPI) communities again, reminding us that old tropes can make way for newer ones, but the overarching story is the same: you are a perpetual—sometimes sudden but always eventual—outsider.
Thind's case is unknown to many, even among lawyers and legal scholars, but in the South Asian community, it is one of the most important cases in American history. Thind applied for citizenship in America at a time when only "white persons" or "persons of African ancestry" could qualify under the Naturalization Act. The Court ultimately ruled against Thind. At its heart, the opinion shows that the Supreme Court in 1923, in its unanimous decision as penned by Justice Sutherland, chose to recognize a standard of whiteness so subjective that it could only be populated (and defined) by those who already "commonly" understood themselves to be white. The decision, when paired with the Ozawa decision by Justice Sutherland just three months before, shows that the Court took pains, in inconsistent ways, to define whiteness as the narrowest of targets, one that favored immigration from a particular small number of originating countries (England and northern Europe), one religion (Protestant), and a political orientation that supported these norms. As a result, all South Asians were shut out of the possibility of naturalizing, many lost their status retroactively, and the Court created a new category of person—the non-white Caucasian. Finally, the decision leaves out much of the "back story"—that Thind's support of Indian independence from Britain appears to have cost him dearly. Despite serving the United States in World War I, he was not understood to be worthy of the "club."
In the year in which United States v. Bhagat Singh Thind turns one hundred years old, I set out to tell the stories that were left out of the

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decision. I write this Article inspired by the form of an ancient Indian storytelling tradition, the Panchatantra ("five treatises"), which tells separate stories interwoven within a larger frame story. One feature of the stories is that a character in the last story (often minor) becomes a featured character in the next. The stories themselves are designed as moral tales, and—at first blush—appear to be children's stories. The original purpose of the tales, however, was to teach strategy in a complicated world. With this technique, and based in Critical Legal and Realist principles that foreground narrative, we unpack the story of Bhagat Singh Thind again from his journey from Punjab to the Supreme Court and beyond. With this re-telling, we can see again the many countervailing forces working with and against immigrants and other communities of color who strove to become part of this nation. The lessons lie in the negative spaces around the Supreme Court's unanimous decision. These stories—like those in the Panchatantra—are far more complex than they first appear.

I. Introduction

In the years following September 11, 2001, hate crimes and violent incidents against Sikh people in America rose dramatically.¹ Most of these incidents involved individuals who targeted Sikh people—often men—because of their turbans and beards, which the attackers conflated with their own imagined versions of "9/11 terrorists." Although the Sikh faith had no relationship to whom these attackers thought they were assaulting, very often someone they believed to be from the Islamic faith, the "visual" told the story—the victim was an outsider, someone who did not belong here and someone who was dangerous for America.²

One particularly poignant moment resonated with me from that time. In 2005, my firm took over the pro bono representation of Rajinder Singh Bammi (also known as Khalsa, an honorific for priest), who was beaten within an inch of his life in Queens by several young men of Italian ancestry leaving a christening party.³ The Queens District Attorney brought a hate crimes case against the men, who were convicted and served either time or community service. Significantly, Mr. Bammi then decided to bring the first case in America in which a Sikh person brought

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a civil suit against his attackers to pay for his hospital bills and lost wages. In reflecting upon the burden and responsibility of bringing such a case, he asked out loud, "Why are they mixing us up? Why don't they know who we are?" I have thought both of my immediate response to the first question—that no one should be attacked no matter their faith and that we stand with all vulnerable communities—but also of the lingering second question: "Why don't they know who we are?"

In the years since, violent incidents burst forth again in a shooting rampage in the Oak Creek gurdwara,⁴ and in shootings and arson in mosques,⁵ in synagogues,⁶ in churches⁷ against other minority communities across the country. Further incidents took place in mundane, everyday locations like FedEx shipping depots in Indianapolis,⁸ nail salons and spas in Atlanta,⁹ and corner and grocery stores in just about every city in America.¹⁰ What was it that kept certain communities invisible? And more importantly, when the communities were suddenly noticed in incidents such as these, who was creating the narratives around them? I wanted to revisit the story of another case, this one before the Supreme Court of the United States, to see how

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another Sikh immigrant contested his identity and to see what we can learn from stories left in the negative spaces around the case.

The Supreme Court's decision in United States v. Bhagat Singh Thind¹¹ turned a century old in February 2023. Other than for scholars who have examined its impact on American immigration history, it remains a relatively unknown case to the general public. But its impact is monumental when it comes to the history of Asians—and in particular, South Asians—in America. The case captures its own historical moment and provides lessons for the ways in which we understand race, citizenship, and what it means to be an American today.

Thind's story spans continents, decades, and empires. By taking the lens back to encompass more of the picture—of the various political and historical forces at play and the ways in which actors contemplated, used, and challenged existing and competing norms—we can see more of the story. This Article articulates why—despite presenting a case carefully designed to align with the Court's own prior reasoning—Thind could not have prevailed in his case to retain his American citizenship before the Supreme Court in 1923.

A word on the various uses of language in this paper. Terminology is ever-changing, and historical terminology does not always comport with the words we tend to use today. To the extent possible, I will try to clarify which community I mean and at which time period. I use the term "South Asian" to describe the modern diaspora of persons originally from India, Pakistan, Bangladesh, Sri Lanka, Nepal, Bhutan, Afghanistan, and the Maldives.¹² When I refer to India or the Indian Independence movement, I am referring to the country before Independence in 1947 (which would also encompass modern-day Pakistan and Bangladesh), and in this specific historical context I may use the word "Indian" to refer to persons from that region. Most American historical sources in the nineteenth century referred to people from India as "Hindus or Hindoos" rather than Indians to distinguish these immigrants from people native to the Americas. This term encompassed all people from India, regardless of whether they were religiously Hindu, and included people of the Sikh, Muslim, Buddhist, and other faiths, as well. Although this Article focuses on Thind and his quest for citizenship, many of the prevailing forces were already in place long before Thind set sail for America, and many

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continue to work in the negative spaces to define who gets to become fully part of this country and who does not.

This Article builds upon the scholarship about the racial prerequisite cases, including the two Supreme Court decisions in Thind and Takao Ozawa v. United States,¹³ which the Supreme Court took up only three months before Thind's case. Scholars such as Ian Haney Lopez,¹⁴ Sherally Munshi,¹⁵ and Doug Coulson¹⁶ have theorized about the legal and rhetorical underpinnings of these cases, including, in Coulson's work, the British imperial influence on Thind's fate. I offer my...