Every May, we celebrate the history and heritage of Asian Americans, Native Hawaiians, and Pacific Islanders in the United States. There are more than 25.6 million Asian Americans, Native Hawaiians, and Pacific islanders in the United States (24 million Asian Americans and 1.6 million Native Hawaiians and Pacific Islanders). Asian Americans, Native Hawaiians, and Pacific Islanders (AANHPI) encompass more than 50 ethnic groups that trace their lineage from more than 40 countries. As a group, AANHPI is the fastest-growing racial group in the United States. Their skin color ranges from fair to brown hues. They are U.S. Citizens, Lawful Permanent Residents, U.S. National, undocumented, and non-immigrant visitors. They are straight, gay, queer, bisexual, trans and nonbinary. Just who are Asian Americans and who are Pacific Islanders? How did they become part of the American mosaic and how have they shaped American jurisprudence and immigration law? Native Hawaiians are, by definition, natives of Hawaiʻi, and how did they become part of America?

There are no Asians in Asia. There are people with national identities in Asia. It is only in America where the diverse Asian ethnicities become Asian Americans, a pan ethnicity out of necessity and rooted in their collective struggle against racism and racist immigration policies. Most, if not all, Americans of Asian descent trace their American origin to that forebear who immigrated to the United States, as laborers who built the transcontinental railroad, as foreign students, as farm workers, as miners, as fishermen, as entrepreneurs, as gardeners, as refugee, as scholars…. Because of restrictive and racist immigration policies, more than one hundred and seventy years since the first group of Chinese immigrated to the United States (Filipinos Americans established their first recorded North American settlement in St. Malo, Louisiana in 1763, Filipino sailors had been coming to Morro Bay in California as early as 1587), sixty percent of Asian Americans are still immigrants. Nearly one in three individuals immigrated to the United States is from an Asian country.

Native Hawaiians and Pacific Islanders, on the other hand, are natives to their land, which was acquired by the United States as spoils of wars or conquests. The legacy of settler colonialism and imperialism partly explains the incorporation of Native Hawaiians and Pacific Islanders in this nation’s demographics.

Hawaiʻi was an independent sovereign kingdom until it was overthrown in a coup d’état led by Sanford Ballard Dole, a sugar planter born to American parents, on January 17, 1893 with the tacit support of the U.S. government. The end of the Spanish-American War provided the McKinley Administration a pretext to annex Hawaiʻi. Through the Hawaiian Organic Act, U.S. annexed Hawaiʻi on April 30, 1900. Chinese then residing in Hawaiʻi could obtain certificates of residence one year after the enactment of the Hawaiian Organic Act, but they would be prohibited from entering the U.S. mainland from Hawaiʻi even with these certificates of residences due to the Chinese Exclusion Acts.[1] Hawaiʻi became the fiftieth state in 1959 by act of Congress ratified by 94% of voters who voted in a plebiscite in Hawaiʻi. Native Hawaiians became United States Citizens under the Hawaiian Organic Act, which has also been codified in the Immigration and Nationality Act.[2]

Puerto Rico, Guam, Cuba, and the Philippines became American possessions after Spain lost the Spanish-American War in 1898. Cuba became an independent country under the Treaty of Paris that ended the Spanish-American War. The United States bought the Philippines from Spain, and it remained a U.S. territory for almost fifty years until it gained independence in 1946. The U.S. colonization of the Philippines rendered Filipinos U.S. Nationals with no right to citizenship. As U.S. Nationals, Filipinos were exempt from immigration laws that barred Asians from immigrating to the U.S. The Asian ban was completed when Congress passed the Tydings-McDuffie Act in 1934, under the guise of granting independence to the Philippines in ten years,[3] reclassified Filipinos as “aliens,”[4] thus subjecting them to the Asian bar, prohibited them from migrating to the mainland from Hawaiʻi[5] and drastically reducing Filipino migration to fifty persons per year,[6] essentially ended Filipino immigration. Many Filipino men came to the U.S. to work on Hawaiian plantations, Californian farmland, and Alaskan fisheries and canning industries as sojourners, leaving behind wives and children, planning to one day return to the Philippines. In the end, eighty percent of them remained in the United States. Stripped of their status as U.S. Nationals under the 1934 law and ineligible to become U.S. Citizens under Asian exclusion laws, Filipino Americans endured decades of family separation until the 1965 immigration reform allowing them to petition for family members to immigrate to the United States. Those who served in the military were given the option to become U.S. Citizens. Under the current quota system with visa caps on country and immigration categories, Filipinos continue to endure decades of family separation as the immigration backlog continues to grow.[7]

Guam and Puerto Rico remained U.S territories 124 years since the end of the Spanish-American War. Pursuant to the Insular Cases,[8] residents of unincorporated territories and insular possessions of the United States, such as Guam, Puerto Rico, and the Philippines, were ineligible for U.S citizenship. The Jones-Shafroth Act[9] that was signed into law on March 2, 1917, gave U.S. citizenship to Puerto Ricans.[10] This was codified into law as part of the Immigration and Nationality Act.[11] Between 1967 and 2020, Puerto Rico has held six referenda on statehood. Despite a majority of voters favoring statehood, Congress has yet to act to make it a reality. The Organic Act of Guam[12] that was signed into law on August 1, 1950, conferred American citizenship to all persons residing in Guam at the time of its enactment, thus ended a half-century quest for U.S. citizenship by its native Chamorros. It also identified Guam as an Unincorporated Territory of the United States to be overseen by the Department of the Interior. As a U.S. territory, people of Guam are represented by one non-voting delegate in Congress. Since 1998, the island has undertaken several plebiscites on decolonization. The latest one that took place in 2016 opened solely to Chamorro native people of Guam was struck down by a federal court for being racially discriminatory.

The other “Pacific Islands” include the Commonwealth of the Northern Mariana Islands that is an unincorporated territory with Commonwealth status, and several unincorporated and unorganized[13] territories such as American Samoa, Baker Island, Howland Island, Wake Island, Midway Atoll, Johnson Stoll, Kingman Reef, Jarvis Island and Navassa Island.

American Samoa lies in South Pacific halfway between Hawaiʻi and New Zealand. The Tripartite Convention of 1899 settled the international rivalries concerning the Samoa Islands and partitioned the islands into two: the eastern island group became a U.S. territory, known today as American Samoa, the western cluster became possession of Germany. Formal annexation by the U.S. took place in 1900 by Deed of Cession. The matai (local chiefs) of Tutuila, the largest island in American Samoa, ceded the island to the United States in 1900. Manu’a followed in 1904. Swain Island joined the territory in 1925 by an act of the Congress. The U.S. Navy administered the American Samoa until 1950 before turning it over to the Department of the Interior. People born in American Samoa are nationals but not citizens of the United States at birth.[14] American Samoans can apply for citizenship through naturalization three months after they move to the mainland of the United States. A group of American Samoans sued the federal government for birthright citizenship in 2012. In Tuaua v. United States, the federal court affirmed that the Citizenship Clause of the Fourteenth Amendment does not apply to persons born in unincorporated territory, including American Samoa, thus reviving the two-tiered framework laid out by the Insular Cases from more than a century ago. The case renders the 50,000 American Samoans the only people born on American soil who are denied birthright citizenship.

The Commonwealth of the Northern Mariana Islands (CNMI) is an unincorporated territory comprising fourteen islands (including Saipan, Tinian, and Rota) on northwestern Pacific Ocean just north of Guam. Around 48,000 persons live in CNMI according to Census 2020. The territory was colonized by Spain, Germany, and Japan until the United States assumed administration after World War II under the Security Council Resolution 21 establishing trusteeship of strategic areas. The islands were part of the United Nations Trust Territory of the Pacific Islands (TTPI). In 1976, Congress approved the Covenant to Establish a Commonwealth of the Northern Marianas Islands in Political Union with the United States; CNMI formally came under U.S. sovereignty on November 4, 1986 under Proclamation 5564,which also conferred U.S. citizenship to the islanders. The Consolidated Natural Resources Act of 2008 (CNRA) made federal immigration law applicable to CMNI beginning on November 29, 2009.[15] In Eche v. Holder, the Nineth Circuit held that the Naturalization Clause does not extend to the unincorporated territory such as CNMI such that residency prior to the enactment of CNRA did not count toward fulfilling residency requirement for naturalization.

The Federated States of Micronesia (FSM) and the Republic of the Marshall Islands (RMI) were part of the TTPI administered by the United States since the end of World War II. Both have become independent sovereign states under Compact of Free Association: FSM on November 3, 1986, and RMI on October 21, 1986. The United Nations Trusteeship ended in December of 1990. Marshallese, together with people from the Federated States of Micronesia and Palau[16] can come to the U.S. to live, work, and study without visas, but they are not U.S. Citizens or U.S. Nationals. They could apply for permanent immigration status through the same avenues available to all others intending to immigrate to the United States.

So when you tell me my time is

up I tell you this.

Pride has kept my lips

pinned by nails,

my rage coffined.

But I exhume my past

to claim this time 

~ Janice Mirikitani, in Mr. Commissioner

 

~ Article Written By Zenobia Lai

[1] Pub. L. 56-339, Section 101 (April 30, 1900).

[2] 8 U.S.C. §1405.

[3] Pub. L. 73-127, §10(a). (March 24, 1934), https://govtrackus.s3.amazonaws.com/legislink/pdf/stat/48/STATUTE-48-Pg456.pdf.

[4] Id. §8(a)(1)

[5] Id. §8(a)(2).

[6] Id. §8(a)(1).

[7] For example, a married son or daughter of a Filipino American will have to wait 61 years before an immigrant visa is available. David J. Bier, Immigration Wait Times from Quotas Have Doubled: Green Card Backlogs Are Long, Growing, and Inequitable, (Cato Institute, Policy Analysis No. 873, June 18, 2019), https://www.cato.org/publications/policy-analysis/immigration-wait-times-quotas-have-doubled-green-card-backlogs-are-long.

[8] The Insular Cases refer to a series of cases decided by the U.S. Supreme Court from 1901 to 1914 that created a two-tiered framework for applying constitutional rights in the U.S. territories. Constitution applied with “full force and effect” for “Incorporated” territories that were destined ultimately for statehood. Downs v. Bidwell, 182 U.S. 244 (1901). See also, Rasmussen v. United States, 197 U.S. 516 (1905) (Sixth Amendment mandated a right to jury trial in Alaska.) Whereas for “unincorporated territories” that lacked the necessary “anticipation of statehood,” only “fundamental” constitutional rights applied. See Dorr v. United States, 195 U.S. 138 (1904). (Residents of the Philippines did not enjoy the right to jury trial unless Congress saw fit to confer it by statute.) These cases justified the American government’s treatment of insular territories as satellite colonies from which it could freely extract resources without corresponding obligations to the people on these land.

[9] 39 Stat. 951-968 (1917).

[10] Pub. L. 64-145, §5 (March 2, 1917).

[11] 8 USC §1402.

[12] Pub. L. 81-512 (1950). https://www.govinfo.gov/content/pkg/COMPS-1142/pdf/COMPS-1142.pdf.

[13] These territories are classified as “unorganized” because Congress has not passed an Organic Act for these territories.

[14] 8 U.S.C. §1408.

[15] Pub. L. 110-229, §6 (May 8, 2008).

[16] Palau has a separate Compact of Free Association that took effect on October 1, 1994. https://www.uscis.gov/sites/default/files/document/fact-sheets/FactSheetVerifyFASCitizens.pdf.

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