nys69-1_cv_nys69-1_cv 10/15/2014 7:32 AM Page 6

Reprinted from the

New York University Annual Survey of American Law

BETWEEN MUSLIM AND WHITE: THE LEGAL CONSTRUCTION OF ARAB AMERICAN IDENTITY

Khaled A. Beydoun

Volume 69 Issue 1 2013 35559-nys_69-1 Sheet No. 21 Side A 10/20/2014 11:50:05 29 ABSTRACT KHALED A. BEYDOUN* KHALED ARAB AMERICAN IDENTITY AMERICAN ARAB BETWEEN MUSLIM AND WHITE: AND MUSLIM BETWEEN THE LEGAL CONSTRUCTION OF CONSTRUCTION THE LEGAL This Article examines the legal origins of Arab American iden- the legal origins of Arab American This Article examines attention to the Arab nat- Legal scholars have paid insufficient * Fellow, Assistant Professor of Law, Barry Law School; Critical Race Studies UCLA School of Law. The author would like to thank Khaled Abou El Fadl, UCLA School of Law. The author would Asli Bali, Fikrieh Beydoun, Luke Boso, Hishaam Aidi, Abed Ayoub, Sahar Aziz, Samuel Bray, Karen Brodkin, Devon Carbado, Maureen Carroll, Kim Crenshaw, Laura Gomez, Nadim Hallal, Timothy Han, Cheryl Harris, Jerry Kang, Randa Kayyali, Jasleen Kohli, Erik Love, Hiroshi Motomura, Jyoti Nanda, Jason Oh, Gabriela Ortiz, Ediberto Roman, Annalise Glauz-Todrank, William Wood, Jordan Blair Woods, William Youmans, and Noah Zatz. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 1 8-OCT-14 15:03 tity during the racially restrictive Naturalization Era (1790 through restrictive Naturalization tity during the racially American citizen- was a prerequisite for 1952), when “whiteness” during this era fifty-three naturalization hearings ship. Ten of the Judges during the from the “Arab World.” involved a petitioner with “Muslim” viewed “Arab” as synonymous Naturalization Era non-white, and Muslims were presumed to be identity. Because Arabs were presumptively inel- Arabs were presumed to be Muslims, however, could be rebut- igible for citizenship. This presumption, ted. Arab Christians could—anddid—invoke the fact of their white. These arguments some- Christianity to argue that they were petitioners, but did not al- times secured citizenship for Christian every immigrant from the Arab ways rebut the presumption that World was Muslim. not only how judges viewed re- uralization cases. These cases reveal the ways in which they conflated ligion as a proxy for race, but also to do so. This conflation persists Arab identity with Muslim identity to believe that Arab is synony- today in that many people continue that is especially salient following mous with Muslim, a conflation Almost all of the current liter- the September 11th terrorist attacks. on how the government’s re- ature on Arab Americans centers to be Arabs, Muslims, or sponse to 9/11 made people perceived forms of racial surveillance, Middle Eastern vulnerable to legalized subordination, and violence. 35559-nys_69-1 Sheet No. 21 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 21 35559-nys_69-1 35559-nys_69-1 Sheet No. 21 Side B 10/20/2014 11:50:05 R R R R R R R R R R R R R R R R R R R R R ..... 44 ...... 61 ...... 56 ...... 57 ...... 46 ...... 52 ...... 75 ...... 40 ...... 38 ...... 50 ...... 58 Dow v. United States ...... 62 ...... 63 ...... 65 ...... 51 : Naturalization or Natural : Nascent “Arab American Identity” as : Nascent “Arab American Identity” ...... 68 ...... 37 ...... 49 ...... 43 Dow ...... 31 ...... 71 Immigrants Immigrants from the Arab World Citizenship Christian and White American Identity 1. Miscegenation with Muslims 2. Real Christians or Covert Muslims? Ex Parte Mohriez Resources? Americans Identities Whiteness B. to Arab Muslim American Citizenship Barred C. Against Muslim Reversing the Restriction A. Syrian Christians: The First Wave of Immigrants B.Nexus to American Christian Purity and Its C. White By Religion: D. After A. Arabism and Its Impact on Formative Arab A.Are Arab Americans? Who B.Muslim Americans? Who Are A. Orientalism and American Political Ideology B. Courts Orientalism in American While this body of work is important, this Article introduces a introduces this Article is important, of work this body While I. Arab Americans From Muslim Distinguishing V. II.Muslim Conflation of Arab & The Orientalist IV.Interest Convergence Between Arabism and III. Christianity as Passage Into Made in Our Image: Conclusion Table of Cases: Arab Naturalization Cases 30 Americans—the of Arab racialization post-9/11 to the preface ra- NYU ANNUAL SURVEYNaturaliza- during the Muslim identity of Arab and cial conflation OF AMERICAN LAW Muslim rendered Arab during this era The courts tion Era. some- inassimilable, while non-white and presumptively immigrants [Vol. 69:29 white by citizenship and eligible for Arab Christians times finding that earlier identity in of Arab American legal construction law. The and misunder- contemporary understandings period helped shape today. Arab and Muslim American identity standings of both Introduction \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 2 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 21 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 21 35559-nys_69-1 35559-nys_69-1 Sheet No. 22 Side A 10/20/2014 11:50:05 ]. 1 THNIC- E THNICITY He had E 5 Immigration ACE AND ACE AND : R repealed by HITE This evidence clearly 7 W 49 (2006). RAB AND ]. —Edward Said, Orientalism A 4 ., (Syrian Stud. Ass’n, Bos., Mass.), Win- 58 (2009) [hereinafter R MERICANS 307 (Random House LLC 1979). EWSL IASPORA A ETWEEN N D The Naturalization Act of 1790 made The Naturalization , B N Syrian Immigrants and Debates on Racial Belonging RAB 3 ’ IASPORA SS A D INTRODUCTION . A HE RIENTALISM MERICAN UALTIERI , T TUD , O A Syrian Immigrants and Debates on Racial Belonging in Los Ange- Syrian Immigrants and Debates on Racial Belonging S MERICAN AID A AYYALI YRIAN M. A. G YRIAN S W. S A. K YRIAN , S S ARLY ARAH S The Naturalization Act of 1870, which followed the abolition of slavery, The Naturalization Act of 1870, which E ITY IN THE IN THE ANDA DWARD ARLY See Id. An immigrant from Canada, Hutton was elected to preside from Canada, Hutton was elected An immigrant E 2 Shishim’s appearance defied the caricature common of Arabs Shishim’s appearance defied the Shishim had lived in California for twenty-five years. Shishim had lived Judge George H. Hutton peered across his bench in the direc- bench in the peered across his H. Hutton Judge George 6 1. E 7. The “Arab World” is a social and political construction. It presently encom- 2. 3. 103, 103, Naturalization Act of 1790, ch. 3, 1 Stat. 6. Sarah Gualtieri, 5. R 4. 1875–1945 “[E]ach time the concept of the Arab national character is national character of the Arab time the concept “[E]ach employed.” the myth is being evoked, , 2013] WHITE BETWEEN MUSLIM AND of California Shishim, a longtime resident tion of George Shishim. the Ottoman Em- Mount Lebanon Province of and native of the American citizen- Hutton’s court to petition for pire, had entered 31 ship. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 3 8-OCT-14 15:03 over the Los Angeles Superior Court in 1906. Judges like Hutton Superior Court in 1906. Judges over the Los Angeles fit within discretion to decide which immigrants held unfettered 1790 through of “whiteness” from the period the statutory scope Era). 1952 (Naturalization while his testimony that Ven- in early Twentieth Century America, a degree of assimilability un- ice was his longtime home highlighted World.” becoming of a native from the “Arab passes nations in the Middle East and North and East Africa where Arabic is com- monly spoken. In addition to its use as a fluid linguistic identification, the Arab World is also a designation that refers to the twenty-three states that are members of the Arab League. For more information on the Arab League, see Krister Ander- les served as an officer in the Los Angeles Police Department, and had served as an officer in the Los Angeles for his naturalization hear- donned his uniform, cap, and regalia ing. whiteness a prerequisite for American citizenship during the 160- for American citizenship whiteness a prerequisite it was repealed. year period before extended naturalization eligibility to “aliens of African nativity and to persons of extended naturalization eligibility to “aliens 1870, ch. 254, 16 Stat. 254, 256. African descent.” Naturalization Act of and Nationality Act of 1952, Pub. L. No. 82-414, 66. Stat. 163 (“[A]ny alien, being a and Nationality Act of 1952, Pub. L. No. within the limits and under the jurisdic- free white person, who shall have resided two years, may be admitted to become a tion of the United States for the term of law court of record, in any one of citizen thereof, on application to any common for the term of one year at least . . . .”). the states wherein he shall have resided ter 2009–2010, at 5 [hereinafter 35559-nys_69-1 Sheet No. 22 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 22 35559-nys_69-1 35559-nys_69-1 Sheet No. 22 Side B 10/20/2014 11:50:05 , IL- AST E 9 AYYALI RABS IN A IDDLE in VII (2005); R. 7 (2004). M , L ’ note 6 (citing NT ISTORY . I ODERN supra , M ARV : A H , 25 H MERICANS A ISTORY OF THE RAB A , A H HE 1 (Michael W. Suleiman ed., 1999). , T UNTON B UTURE RFALEA F ARTIN O Introduction: The Arab Immigrant Experience EW N & M REGORY G Judge Hutton initially seemed persuaded by the Natu- seemed persuaded by the Judge Hutton initially 8 UILDING A LIAM LEVELAND . (discussing hand-written notations at the bottom of Shishim’s Oath of : B See Syrian Immigrants and Debates on Racial Belonging See Syrian Immigrants and Debates on Racial Id See also Short on persuasive rebuttals, Shishim closed with the lone ar- rebuttals, Shishim closed with Short on persuasive Although an established resident and servant of the State of of the State resident and servant an established Although note 5 (“[T]oday, there are approximately 270 million Arabic-speaking peo- note 5 (“[T]oday, there are approximately Going Major: Reforming the League of Arab States Going Major: Reforming the League of Arab 8. 9. L. C MERICA Oath of Allegiance for George Sulayman Shishim, Nov. 4 1909, Naturalization Oath of Allegiance for George Sulayman 1876–1915,Records of the Superior Court of Los Angeles, NARA M1614) (indicat- denied on the grounds that he “did not ing that Shishim’s petition was initially come under the provisions of Section 2169 of the Revised Stat[ut]es of the United States,” namely the provision that allowed naturalization for “aliens, being free white persons and . . . aliens of African nativity and persons of African descent.”). Allegiance indicating that it had caused judicial conflict). A (4th ed., 2009). For a general history of Arab Americans, see generally K (4th ed., 2009). For a general history gument that could potentially resonate with Hutton and redeem gument that could potentially resonate petitioner rose from his seat, stood the prospect of citizenship. The on his jacket, and declared: firmly with his police badge glistening son, 32 Los Angelino to mainstream had conformed Shishim that revealed immi- of the petitions over presiding judges that a factor society, NYU ANNUAL SURVEY in deter- considered and elsewhere, the Arab World, grants from OF AMERICAN LAW whiteness. definition of within the statutory they fit mining whether petitioner for an Arab required the level of assimilability However, [Vol. 69:29 his religious identity. turned on citizenship generally to access becoming an odds were stacked against Shishim California, the before his appear- on November 4, 1909. Weeks American citizen moved to Hutton, a Naturalization Examiner ance before Judge that his “Arab citizenship petition on the grounds quash Shishim’s the meaning of him from being white within identity” disqualified the statute. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 4 8-OCT-14 15:03 ralization Examiner’s position, which deemed immigrants from the position, which deemed immigrants ralization Examiner’s American democ- originated from hostile to both region Shishim aliens. and thus, a class of inassimilable racy and Christianity, Furthermore, the region referred to as the Arab World has experienced considera- Furthermore, the region referred to as the of immigrants from the region traveled to ble reform since the first sizeable wave the Levant (which encompasses present- America. Much of the region, particularly was colonized by the Ottoman day Lebanon, Syria, Jordan, and Palestine/Israel) its loss, the “sick old man of Eu- Empire until the end of World War I. Following shared, and divided by the French rope’s” spoils in the Middle East were claimed, Act of 1916. Old Ottoman territo- and the United Kingdom under the Sykes-Picot neatly drawn boundaries that accorded ries were formed into nation-states with Kingdom, and their arbiters. For more with the interests of France, the United subsequent periods, see generally W discussion of the post-World War I era and supra ple.”). Michael W. Suleiman, 35559-nys_69-1 Sheet No. 22 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 22 35559-nys_69-1 35559-nys_69-1 Sheet No. 23 Side A 10/20/2014 11:50:05 OD MERI- G supra , A http:// XPERIENCE RAB ON OF E A S IASPORA in HE note 6. , D : T available at supra , MMIGRANT I HRIST as was Christianity, 13 15 MERICAN C 14 RAB A A The Business of Remaking Arab- and Shishim’s spirited ap- and Shishim’s YRIAN ARLY OLOR OF 11 S E C HE HE ARLY : T , T E Hutton was finally convinced that was finally convinced Hutton 12 ARVEY MERICAN H 9 (2012) (“Whiteness became a crucial symbol of 9 (2012) (“Whiteness became a crucial A AUL (June 15, 2012, 7:05 PM), http://www.aljazeera.com/ Dept. of Justice Affirms Arab Race in 1909 MERICA , & P THNICITY IN THE A ECOMING E note 5; Khaled A. Beydoun, AZEERA AIEK LUM J , B L ACE IN AFF J. B supra Christianity ranked among the primary hallmarks of hallmarks the primary among ranked Christianity , A R. H , R N 10 (News Circle Publ’g House 6th ed. 2010) (1972), (News Circle Publ’g House 6th ed. 2010) ACE AND R LIXA DWARD CAN OSEPH AYYALI See Syrian Immigrants and Debates on Racial Belonging See Syrian Immigrants and Debates on Racial See AGA OF K S LMANAC Significantly, the conflation of Arab and Muslim identity was conflation of Arab and Muslim Significantly, the 10. J 11. E 12. 13. 14.the discussion of Muslim as a racial Considering the scope of this Article, 15. A A at 58, 69. THE whiteness in the United States in 1909, in the United whiteness 2 (Teresa White ed., S. Ill. Univ. Press 1993) (1985)2 (Teresa White ed., S. Ill. Univ. Press 1993) they migrated from (“Because until the end of the Ottoman Empire in the Ottoman province of Syria which, the 1917, included Mount Lebanon, they all called themselves Syrian. In the 1920s term ‘Lebanese’ as a national label or identity was given political legitimacy and was adopted by most immigrants originating in Mount Lebanon.”). This Article also refers to the first wave of immigrants from the “Levant,” the region encom- passing present-day Syria, Lebanon, Israel and the Palestinian territories, as Syrian. & 2013] the came from we because was Jesus, then so am a Mongolian, “If I land.” same WHITE BETWEEN MUSLIM AND 33 Naturalization Era. within the courts during the deeply entrenched as an ethno-racial identity, Islam was treated \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 5 8-OCT-14 15:03 Shishim’s Christian identity was authentic. As a result, Shishim be- As a result, Shishim was authentic. Christian identity Shishim’s as World to be naturalized from the Arab first immigrant came the judicially ruled white by law. an American and American Identity indepth/opinion/2012/06/2012610114257813921.html. peal insisted that, although from the Arab World, he was not a Mus- World, he was from the Arab that, although peal insisted in fact, a Christian. lim and, which functioned as a hallmark of whiteness and a prospective gate- as a hallmark of whiteness and which functioned World. Judges for immigrants from the Arab way toward citizenship racial associations these religiously determined who performed upon other dis- so within a vacuum. They relied were not doing classified Christian those from eugenicists who courses, including distinct from the Arab World as a racial group immigrants from Christianity. “Arabs” solely on account of their national identity and citizenship.”). note 2, at 69. Hutton ruled that Shishim fit within the statutory definition of white- note 2, at 69. Hutton ruled that Shishim faith that delivered American citizen- ness. It was not merely Shishim’s Christian was grounded in both faith and racial ship, but also his plea that his Christianity although a native from the Arab World, lineage. Shishim persuaded Hutton that Shishim showcased his Christian iden- he was not an inassimilable Muslim. Rather, the American citizenship that followed. tity to carve a portal toward whiteness, and Id. www.arabamericanhistory.org/archives/dept-of-justice-affirms-arab-race-in-1909/; see also identity will focus exclusively on Arab, and specifically on Arab American, identity. identity will focus exclusively on Arab, and 35559-nys_69-1 Sheet No. 23 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 23 35559-nys_69-1 35559-nys_69-1 Sheet No. 23 Side B 10/20/2014 11:50:05 NITED Tables lifted U 17 See infra and the law. That 19 ORMATION IN THE Ex parte Mohriez F ACIAL , R INANT illustrated the conflations and dis- and conflations the illustrated 55 (1994) (describing race as “an unstable S A. W 1990 Shishim OWARD S TO THE & H 18 MI note 7, at 7 (“Before World War II, the primary or most accept- note 7, at 7 (“Before World War II, the 1960 O Mohriez, 54 F. Supp. 941 (D. Mass. 1944). 16 . supra ICHAEL ROM THE Ex parte See id identity; 1944, only citizenship was in place until fore ineligible for Era; the end of the Naturalization eight years before were Mus- (whether Christian or Muslim) the Arab World the confla- as a consequence of lims and thus non-white, tion; and the presiding judge that he grant-petitioner could persuade was a bona fide Christian. : F The Shishim hearing, and the broader set of Arab Naturaliza- The Shishim hearing, and the broader This Article contends that every Arab immigrant, both Muslim This Article contends that every Hutton’s analysis in analysis Hutton’s 16. all of which are examined in this This is the title given to the ten cases, 17. 18. 19. M Suleiman, 1) Muslim conflated Arab identity with Presiding judges 2) Muslims were per se A rule that Arab and there- non-white 3) from presumed that immigrant petitioners Presiding judges 4) be overcome if the immi- This presumption could only TATES that bar in 1944. S tion Cases of which it is a part, figures only marginally in the legal tion Cases of which it is a part, figures “racialization” literature on Arab and Muslim See and Christian, was perceived to be Muslim because of the en- and Christian, was perceived to Muslim identity was one and the trenched belief that Arab and persuaded presiding judges that same. Christian petitioners that could sometimes overcome their religious identity was authentic while Muslim petitioners were the conflation and claim citizenship, until categorically ineligible for citizenship able designation for the group was ‘Syrian.’”). from the Arab World. Article, that involve an immigrant petitioner 34 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 6 8-OCT-14 15:03 of Cases. tinctions that mobilized religion to make some Arab petitioners some Arab make to religion mobilized that tinctions The initial white. others as potentially while designating non-white, as a racial designation Muslim functioned of Arab with conflation with non- its alignment of Muslim and the association through extended with whiteness association while Christianity’s whiteness, and toward (American) Muslim identity away from a racial juncture Cases” of the ten “Arab Naturalization whiteness. An examination reveals that: and ‘decentered’ complex of social meanings constantly being transformed by po- and ‘decentered’ complex of social meanings constantly being transformed by litical struggle” and racialization as use of race as a basis for distinguishing among human groups). 35559-nys_69-1 Sheet No. 23 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 23 35559-nys_69-1 35559-nys_69-1 Sheet No. 24 Side A 10/20/2014 11:50:05 This 21 . United States v. Thind and 20 Ozawa v. United States This Article offers a preface to that body of post-9/11 scholar- to that body offers a preface This Article ways in which Article explains the precise Furthermore, this 20. petitioner from Japan who 260 U.S. 178 (1922) (involving an immigrant 21. 261 U.S. 204 (1923) (involving a Sikh native of India who was denied specifically naturalization for citizenship proceedings—conflatedspecifically naturalization converted to Christianity, earned his college education from the University of Cali- converted to Christianity, earned his college fornia, Berkeley, and was ultimately ruled ineligible for naturalization on account of his inassimilable physical appearance). naturalization because his appearance, religion, and culture did not comport with the judge’s conception of whiteness). 2013] the examine that by articles entirely almost constituted is literature 11th the September to response the government’s in which ways people of Muslims, and conflated Arabs, attacks (9/11) terrorist WHITE BETWEEN MUSLIM AND to be or anyone perceived rendering them descent, Middle Eastern of racial legalized forms vulnerable to of those groups a member and violence. surveillance in which the law— an earlier historical moment ship. It highlights 35 was presumptively identity. Because Arab identity Arab and Muslim naturalization were presumptively non-white, Muslim, and Muslims the same time, be- that Arabs were non-whites. At judges presumed and whiteness, nexus between Christianity cause of the presumed could some- demonstrate that they were Christians Arabs who could that attached to the presumption of non-whiteness times overcome their Arab identity. these results. In so doing, it also the naturalization cases produced concerned with the Naturaliza- builds upon the existing literature important gaps. First, most of the tion Era at large, and fills four focuses on two Supreme Court literature on the naturalization cases opinions, \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 7 8-OCT-14 15:03 Article transcends these cases to include important lower federal Article transcends these cases to to citizenship were adjudicated. court cases in which Arab claims court opinions broadens the Second, examination of these lower to discuss the Naturalization Era identity categories scholars employ Asian ancestry. Third, the Article beyond people of East and South discuss Arab and Muslims expands the terrain on which scholars scholars explore how the after- and the law. It is crucial that legal of people perceived to be Arab math of 9/11 has impacted the lives it is also important to understand or Muslim or Middle Eastern. But has an earlier legal history that the racialization of these identities this Article helps bring into sharp in the Naturalization Era. Finally, employs religion to racialize social relief the ways in which the law is developed as follows. groups. The remainder of the Article 35559-nys_69-1 Sheet No. 24 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 24 35559-nys_69-1 35559-nys_69-1 Sheet No. 24 Side B 10/20/2014 11:50:05 , Hassan Mohriez Ex Parte , the court denied the citizenship In re Ahmed Hassan , held that a Muslim from Saudi Arabia was eligible for citi- , held that a Muslim from Saudi policy interests in the Arab ruling suggests that U.S. foreign Parts I and II of this Article provide important background in- background important provide Article of this I and II Parts of Ori- the ideological and judicial expression Part II highlights of Arab iden- how the distorted conception Section III analyzes from citizenship persisted as The disqualification of Muslims 36 and Muslim of Arab the conflation understanding for formation NYU ANNUAL SURVEY Part I de- performed. Era judges that the Naturalization identity OF AMERICAN LAW Ameri- of the Arab character modern-day demographic scribes the is Being Arab American communities. Muslim American can and [Vol. 69:29 never has American, and being Muslim synonymous with not in fact are Arabs and Muslims of how a clear understanding been. Having to reveal just how synonymous helps and are not demographically work the conflated racial construct—Arab/Mus-much racialization lim— the naturalization cases. performed in Importantly, the Arab Naturalization Cases. entalism that preceded an ideological Cases did not emerge from the Arab Naturalization American politi- They traded on ideas about and juridical vacuum. in a number identity that found expression cal culture and national Supreme Court opinions. of cases, including claims of the first eight petitioners tity complicated the citizenship were Syrian Christians. Because from the Arab World, all of whom from the region were Mus- of the presumption that all immigrants Christians to prove the authen- lims, the burden shifted onto Syrian order to attain whiteness and ticity of their Christianity in citizenship. late as 1942. In the ground that he was Muslim petition of a native of Yemen on later another court, in and, hence, non-white. Two years Mohriez despite the decision in zenship. Section IV contends that within the statutory definition of which held that Arab Muslims fit of Arab identity that prevailed whiteness, certain misconceptions lingered in the logic of the case. throughout the Naturalization Era context and reasoning of the Moreover, a close reading of the Mohriez facilitated a reversal of World, particularly Saudi Arabia, against Muslims that prevailed for and lifted the naturalization bar Era. Thus, despite the for- the vast duration of the Naturalization as white, the conflation of mal identification of Arab Americans Arabs as inassimilable Muslims continues to limit the “substantive \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 8 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 24 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 24 35559-nys_69-1 35559-nys_69-1 Sheet No. 25 Side A 10/20/2014 11:50:05 . ES , 41 R note EW UILDING A UPPORT FOR 3, 5 (2004) : B see infra S OLITY MERICA A & P LIENATION OR PACE RABS IN A A “[D]espite deep demo- “[D]espite deep , 8 S Citizenship, Identity, and Transna- 23 in , 157, 165 (2004). 25 Y ’ ROWTH IN OC G I. & S N 22 ’ IGNS OF S O OMMC The Arab American population has always The Arab American population C : N ruling. 26 MUSLIM AMERICANS MUSLIM ASS The Construction of Arabs as Enemies: Post-September 11th Dis- The Construction of Arabs as Enemies: Post-September No Exit: Racial Profiling and Canada’s War Against Terrorism No Exit: Racial Profiling and Canada’s War 9/11 intensified this conflation, and converted 9/11 intensified , 7 M 24 Mohriez MERICANS A L.J. 293, 296 (2003). 257, 259–60 W. Suleiman ed., 1999). The entrenchment of (Michael ALL Caroline R. Nagel & Lynn A. Staeheli, DISTINGUISHING ARAB AMERICANS FROM AMERICANS ARAB DISTINGUISHING 14 (Aug. 30, 2011), http://www.people-press.org/files/legacy-pdf/Mus USLIM H Id. See Against the Grain of the Nation—The Arab ,M UTURE This conflation of Arab America and Muslim America obscures This conflation of Arab America There is little doubt today that many Americans still conflate today that many Americans There is little doubt 25. 26. Islam has been inextricably On the ground and within the ivory tower, 22. 24. Reem Bahdi, 23. Debra Merskin, F SGOODE EW ENTER XTREMISM submerged with Arab American identity. At the extreme, both have been entirely submerged with Arab American identity. as interchangeable identities. Suad conflated, reduced to synonyms, and treated Joseph, E N the fact that the two form distinct communities with only a slight the fact that the two form distinct demographic overlap. 2013] nearly seventy today, Muslims Arab American held by citizenship” after the years WHITE BETWEEN MUSLIM AND 37 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 9 8-OCT-14 15:03 the Arab Muslim caricature derives from an obsession with a negligible overlap the Arab Muslim caricature derives from This obsession came to shape the between Arab and Muslim American identity. Americans, despite the fact that Chris- understanding of both Arab and Muslim Arab American community, tians comprise a decided majority of the Muslim American population, P 27, and Arabs a decided minority of the lim%20American%20Report%2010-02-12%20fix.pdf (“In terms of regional ori- lim%20American%20Report%2010-02-12%20fix.pdf (“In terms of regional gins, however, the largest group is from Arab countries in the Middle East and North Africa, representing 41% of foreign-born Muslims, or 26% of all Muslim Americans.”). Muslim American identity into a racial classification understood in identity into a racial classification Muslim American of Arab Americans. the narrow image Arab American and Muslim American identity. The stereotype that Muslim American identity. The Arab American and Muslims—[and]“all Arabs [are] Arabs,” is a per- all Muslims [are] United States today. vasive one in the graphic, religious, and other differences between the two groups, and other differences between graphic, religious, of popular suspi- Muslims have become the target both Arabs and and the ‘Muslifica- the ‘Arabification’ of Muslims, cion, resulting in tion’ of Arabs.” tional Migration: Arab Immigrants to the United States tional Migration: Arab Immigrants to the United O C (“It therefore becomes necessary to distinguish between formal citizenship and (“It therefore becomes necessary to distinguish substantive citizenship—that is, between one’s legal status and one’s ability to real- membership.”). ize the rights and privileges of societal course of George Bush 35559-nys_69-1 Sheet No. 25 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 25 35559-nys_69-1 35559-nys_69-1 Sheet No. 25 Side B 10/20/2014 11:50:05 S- 30 97 See I MERI- Pan- AND A TATE IN 33 , S 31 Below, I Below, RABISM AND 28 -A ART OF RABISM 316 (1992). NCYCLOPEDIA AN P Pan-Arabism Immigration , A 32 E 29 : P ATION AND : N EOPLES NTEGRAL P I MERICAN N REATIONS RAB ISTORY A TTOMANISM C A : A : O RAB : A H Even today, only approxi- today, Even A 27 URKS 34 OVEREIGN MERICANS T RABISM note 27, at 13. A , S See also A ISTORY OF THE OUNG AN RAB 43 (1996). The rising Arab nationalist spirit, UFTI supra Y , P , A , M , A H , 1908–1918 (1997). RAQ . at 13. I Id ALIK USEUM USEUM MPIRE M HOUERRI RABS AND OURANI E M M L A. Who Are Arab Americans? L note 15, at 86–87. ’ ’ H , A YRIA AND Movement in Syria and championed by Egypt’s charismatic M. C AT AT S supra See also AYALI . N . N 82–92 (2001) note 7. LBERT , TTOMAN M M A K Ba’ath O OUSSEF AFF 15–16,http://www.arabamericanmuseum.org/umages/pdfs/re A A see RDER IN ORLD N at 88 (“Arab nationalist sentiment had, during the war, developed an at 88 (“Arab nationalist sentiment had, at 82. ASAN LAMISM IN THE RAB RAB CAN O THE W H Id. Id. See supra See OCIETY RAB Arab identity took on a different meaning after the close of on a different meaning after Arab identity took Arab Americans have been defined as citizens who derive their have been defined as citizens who Arab Americans 32. 27. A 34. 33. See Y 29. 30. hailed from the modern states Therefore, although the eight petitioners 31. 28. A S A OLITICAL ideology based on Syrian unity and independence, reinforced by the collapse of ideology based on Syrian unity and independence, by French and British mandatory the Ottoman Empire. It was hardened rule . . . .”); P These early immigrants framed their identities in relation to the framed their identities These early immigrants rule. terms mandated by Ottoman provincial and religious the emergence of “Pan-Arabism.” Ottoman rule and 38 supermajority. Christian a contained NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 10 8-OCT-14 15:03 source_booklets/AANM-ArabAmericansBooklet-web.pdf (last visited Nov. 20, source_booklets/AANM-ArabAmericansBooklet-web.pdf population is significantly larger 2012) (noting that the Christian Arab American because Christian Arabs have been than the Muslim Arab American population, period of time). 63% of Arab Americans coming to the United States for a longer today identify as Christians. was a political ideology formed in Syria during the early 1930s, was a political ideology formed was under French rule. while the former Ottoman province birthed by the from the Arab World commenced in the mid-Nineteenth Century; commenced in the mid-Nineteenth from the Arab World the Naturaliza- for U.S. citizenship during the first eight petitioners what then was of- immigrants, hailing from tion Era were Christian Empire. the Syrian Province of the Ottoman ficially known as Arab identity along linguistic, cul- Arabism framed a new brand of tural, political, and economic lines. mately one-fourth (24%) of Arab Americans are Muslim. Arab Americans of (24%) one-fourth mately as a prel- communities contours of these demographic sketch the a legal judges constructed naturalization how the ude to showing were non-white. that Arabs presumption region known as the Arab World. ancestry from the of Syria, Lebanon, Israel, and the Palestinian Territories, this Article will refer to of Syria, Lebanon, Israel, and the Palestinian as “Syrians.” them according to their Ottoman designation generally (Anan Ameri & Dawn Ramey eds., 2000). 35559-nys_69-1 Sheet No. 25 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 25 35559-nys_69-1 35559-nys_69-1 Sheet No. 26 Side A 10/20/2014 11:50:05 While 36 OVEMENT AND M DENTITY I ERBER B HE 92, 140 (2011). While Pan-Arabism , T TATES S EITZMAN -W FRICAN A ADDY note 33, at 82. M ORTH supra Today, many Americans trace their ancestry to the Today, many Americans N RUCE , 37 , B In line with this Article’s central thesis, the emergence of the emergence thesis, central this Article’s with In line HOUERRI 35 THE See, e.g. at 14. Indeed, many indigenous populations in the Arab World, including at 14. Indeed, many indigenous populations HALLENGE TO Id. Pan-Arabism birthed the contours of modern Arab American Arab modern of the contours birthed Pan-Arabism The United States Census places the current population of Census places the current The United States 36. inhabitants, as well as a majority of The vast majority of the Arab World’s 37. 35. C C those in the Diaspora, adopted the readapted form of Arab identity espoused by those in the Diaspora, adopted the readapted the first eight immigrants from the Pan-Arabism after its emergence. However, discussed in Section III, migrated to the region that petitioned for citizenship, as Pan-Arabism, were accordingly identified United States before the emergence of were presumed to be Muslims. Finally, by the courts as Ottoman subjects, and thus immigrants, Muslim immigrants from as explained in Section IV, the final two American citizenship during the expan- Yemen and Saudi Arabia, petitioned for of the region. sion of Pan-Arabism inside and outside Gamel Abdel-Nasser, galvanized a growing sense of unity, and Pan-Arabism, within galvanized a growing sense of unity, and Gamel Abdel-Nasser, of the immigrants bolstered the Arab identity of the bulk the Arab World. This 1930s through 1967, settled in the United States circa the from the region that as a blockade against colonialism pre-World War I, served which unlike European subscribed to Arab- in the United States. Immigrants who assimilation upon arrival identity, which conflicted with prevailing ism made it a core dimension of their of Ottoman rule combined with the notions of American identity. The experience offered newly independent Arab common struggle against European colonialism time, made the prospect of political and states a unifying narrative, and at the economic integration promising. 2013]identity. WHITE BETWEEN MUSLIM AND 39 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 11 8-OCT-14 15:03 Pan-Arabism and its broadening of Arab identity also highlights identity also of Arab and its broadening Pan-Arabism construction. fluid and political itself was a how “Arab” accord with Pan- and frame their identities in modern Arab World terms. reject it and identify in alternative Arabism, while others at 3,665,789—aArab Americans much smaller figure believed to be masses in the region, and the Diaspora, embraced the reformed embraced the the Diaspora, the region, and masses in a range of Pan-Arabism, brought forth by Arab identity brand of as a result persecution in the region faced communities indigenous of rebuffing it. birthed a modern form of Arab identity, built upon the baselines of secularism, birthed a modern form of Arab identity, threatened precedent nationalisms in the common culture and language, it also chose not to accede to it. Despite its trac- Arab World and marginalized those that people of the Arab World, a number of tion with a considerable segment of the rejected Pan-Arabism as another colonial indigenous populations in the region as “Arabization,” an imposed political, movement. Opponents viewed Pan-Arabism how they publicly asserted their iden- cultural, and ethnic identity that threatened tities. in the “Maghreb,” Copts and Nubians in Kurds in the Levant and Gulf, Berbers Egypt and the Sudan, Jews throughout the Middle East and North Africa, and seg- be- ments of the Maronite Catholic community in Lebanon, resisted Pan-Arabism In cause it threatened other modes of ethnic, tribal, or sectarian nationalism. many places, such as Algeria or Egypt, minority communities that rejected Arab nationalism were persecuted. 35559-nys_69-1 Sheet No. 26 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 26 35559-nys_69-1 35559-nys_69-1 Sheet No. 26 Side B 10/20/2014 11:50:05 , OUSE- (2012), H Ummah RAB 55, 57 (2005) , A NSLAVED IN THE Y ’ http://www.cen E OL UREAU EMOGRAPHICS USLIMS D B M . L. & P available at UB ENSUS MERICAN C FRICAN J. P A : A Islam’s origin in the Arabian Islam’s origin in TATES RAB 42 S A LLAH AMLINE note 27, at 13. A 63% of Arab Americans today iden- Arab Americans 63% of NITED , 27 H supra 39 ATIONAL , , U . N ERVANTS OF : 2006–2010, at 1 (2013), Islam was “revealed to the Arabian trader Islam was “revealed USEUM Although stereotypically understood to be a to be understood stereotypically Although , S 41 OUND EAULIEU I Know You Are, But What Am I? Arab-American Experiences M 38 L TATES . F B ’ In fact, since the first immigrant waves from the waves from since the first immigrant In fact, note 5, at 2. IOUF B. Americans? Who Are Muslim S AT 40 NST and the faith’s multiracial following disproves the and the faith’s multiracial following ANIEL 43 . N supra . I note 26 and accompanying text. A. D , M M NITED A A U & D SI RAB AYYALI RAB HOLDS IN THE YLVIANE 4 (1998). See supra A Islam is the third of the three Abrahamic religions. Followers of the three Abrahamic religions. Islam is the third Following its founding, Islam spread beyond the Arabian Pe- Following its founding, Islam spread 38. A 43. Rachel Saloom, 42. S 41. K 39. 40. A ARYAM MERICAS A 40in the living heritage of Arab citizens of number the actual than today. States United NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 12 8-OCT-14 15:03 Through the Critical Race Theory Lens Muslim-majority community, Muslim-majority Century, mid-Nineteenth States in the to the United region came the Arab majority of a considerable have always been Christians to mi- the hand, began Muslims, on population. Arabs American 1965, and perpet- States in large numbers after grate to the United Arab American of a minority within the ually held the position population. of Islam—Muslims—constitute or a pan-racial community, Muhammad between 609 and 632.” Muhammad between tify as Christians. Peninsula is a principal reason it has been closely linked, and con- reason it has been closely Peninsula is a principal flated, with Arab identity. of Europe, Asia, and Africa. Islam’s ninsula and into distant corners new cultures and peoples immedi- expansion and interaction with identity as an Arab religion. Al- ately transformed its formative the vast majority of Muslims today though Islam began in Arabia, are not Arabs, sus.gov/prod/2013pubs/acsbr10-20.pdf (“The number of Arab households has sus.gov/prod/2013pubs/acsbr10-20.pdf 268,000 in 1990 to 427,000 in 2000. Data also grown over time, increasing from from the 2006–2010 [American Community Survey] 5-year estimates reveal that the United States, representing a 91.0 per- there were 511,000 Arab households in cent increase since 1990.”). (reporting that although Arab identity is still stereotyped as being synonymous with Islam, Arabs only comprise 12% of the global Muslim population). of 1.7 billion people. http://b.3cdn.net/aai/44b17815d8b386bf16_v0m6iv4b5.pdf (“The population http://b.3cdn.net/aai/44b17815d8b386bf16_v0m6iv4b5.pdf ancestry in the U.S. Census grew by more who identified as having Arabic-speaking Arab population in the United States, than 72% between 2000 and 2010.”). The its exact figure, is believed to be rising. despite differences and debate regarding M 35559-nys_69-1 Sheet No. 26 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 26 35559-nys_69-1 35559-nys_69-1 Sheet No. 27 Side A 10/20/2014 11:50:05 44 48 EW Islam N HMED ROM THE (Black Classic . 1, 4–5 (2012); : F ACE UST R . J OC MERICA Marie A. Failinger, EGRO A —the source of 46.3% N 47 see also SLAM IN 2:177 (2001). The Prophet Mo- I Dar al-Islam Meets “Islam as Civiliza- . L.J. (forthcoming 2014). See gener- Beginning in the Ninth Cen- Beginning in the E.L. 143, 159 (2005). 46 OW , 32 B.C. J.L. & S EAR SLAM AND THE 50 , I ISTORY OF RANSLATION , 58 H & N 10, 15 (2010); T , A H RDER SLAMIC O ASSIRI HRISTIANITY This forgotten African Muslim diaspora ex- This forgotten B 49 , C ORLD 45 note 42, at 4–5. ONTEMPORARY Antebellum Islam repeatedly reaffirms its abhorrence of racial or ethnic discrim- repeatedly reaffirms its abhorrence of racial W HANEA LYDEN EW supra at 49–106. , 4 UCLA J. I G : A C N , id. Qur’an AN Khaled Ali Beydoun, Comment, ’ W. B at 47. at 48. at 4. For more detail about African Muslim immigration to North IOUF AMBIZ UR Id. Id. Id. Cf. -Q L Racially restrictive naturalization and immigration legislation Racially restrictive naturalization At no point in American history have Arabs constituted a ma- constituted history have Arabs in American At no point DWARD 44. The 48. 49. 50. 46. K 45. 47. D , A ORLD TO THE LI A W Some estimate that between 15% and 30% of North American that between 15% and 30% of Some estimate slaves were Muslim. from the Arab World until stifled the influx of Muslim immigrants 2013]monoethnic. or monoracial is the religion that narrative simple sects, array of of an to the development led expansion broad Islam’s trans- which gradually schools of thought, and competing offshoots, WHITE BETWEEN MUSLIM AND mirrors its faith that a spiritually pluralistic religion into formed the diverse following. Nor American population. of the Muslim even a plurality, jority, or America. The first Muslims to arrive in North were Arabs the first Africa, who arrived America were natives of West Muslims in North 41 Century as slaves. in the Sixteenth \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 13 8-OCT-14 15:03 in the Mind of American Courts: 1800 to 1960 isted in North America before the formation of the modern-day before the formation of isted in North America Arab immigrants predated the arrival of the first United States, and by nearly three hundred years. America, see tury, Islam had spread through much of the African continent, and through much of the African tury, Islam had spread foothold in West Africa gained its strongest ally E of the individuals kidnapped and sold as slaves in North America. kidnapped and sold as slaves in of the individuals hammed also disavowed racial and ethnic discrimination among Muslims, declar- hammed also disavowed racial and ethnic ancestors. One is only a pious believer ing: “[L]et people stop boasting about their of Adam, and Adam came from dust.” or a miserable sinner. All men are sons Sunnah, Abu Dawud, Tirmidhi. Fundamentalisms and the Geopolitical Realism tion”: An Alignment of Politico-Theoretical of this Worldview ination. One section illustrates this baseline of Islamic colorblindness, holding ination. One section illustrates this baseline face to East or West: Piety lies in believing that, “Piety does not lie in turning your Scriptures and the prophets, and disburs- in God, the Last Day and the angels, the your kin and the orphans . . . .” A ing your wealth out of love for God among Khaled A. Beydoun, Press, 2d ed., 1994) (1888), for a foundational discussion of the prominence of Press, 2d ed., 1994) (1888), for a foundational into the Antebellum South. Islam in African nations that sourced slaves 35559-nys_69-1 Sheet No. 27 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 27 35559-nys_69-1 35559-nys_69-1 Sheet No. 27 Side B 10/20/2014 11:50:05 53 see See also Estimate of XPERIENCE The re- LACKAMERI- E 58 B MERICAN -A 25, 25 (Yvonne Yazbeck SLAM AND THE , I FRICAN of the total Muslim of the total 56 A MERICA . 119, 124 (2012) (“The Muslim 23 (2005). A ACKSON ROBS A. J . P Thinking Through Internment: 12/7 and 9/ SLAM IN THE USLIMS OF note 26, at 16 (“No single racial or ethnic ESURRECTION , I M ONTEMP HERMAN R note 26, at 16. HE note 26, at 16. The official estimate of the Muslim note 26, at 16. The official estimate of the supra T URNER , HIRD Asian Americans follow at 21%. Asian Americans T T As of a 2011 study, White Americans com- As of a 2011 study, supra 57 and those who self-describe as “other/ and those who supra L. & C was the most visible and populous Muslim and populous visible the most was , L , at 20. However, other accounts place the population as at 20. However, other accounts place the 55 ’ 59 52 ENTER RENT note 52, at 169–70. Id. L.J. 195, 197 (2002). Carol L. Stone states, “Estimates of 1.2 L.J. 195, 197 (2002). Carol L. Stone states, . C B ENTER ENTER ES Racializing Islam Before and After 9/11: From Melting Pot to Is- Racializing Islam Before and After 9/11: supra SIAN . C . C RANSNAT R , OWARD THE A 54 ES ES note 5, at 33 (“Between 1965 and 1992, more than 400,000 Arab note 5, at 33 (“Between 1965 and 1992, T ICHARD EW R R P R , 21 T URNER EW EW CAN supra See See Id. Prior to that time, the Nation of Islam (NOI), founded by founded (NOI), of Islam the Nation time, to that Prior , ERKELEY OOKING 51 The Muslim American population today is a racially and ethni- population today is a racially The Muslim American 55. 51. 1924, Pub. L. No. 68-139, 43 Stat. 153. Immigration Act of 52. 53. L. No. 89-236, 79 Stat. 911. Immigration and Nationality Act, Pub. 54. T 59. 56. of [Muslims Americans in 2005] One commentator claimed, “42 percent 57. P 58. P : L Hilal Elver, , 9 B AYYALI K Muslims Living in America, in 148 (2d ed., 2003). 421965. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Europe Asia, Africa, and the Arab World, from Muslim immigration for Islam the “major voice position as usurped the NOI’s gradually in America.” cally diverse mosaic. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 14 8-OCT-14 15:03 million to 3 million have been reported. To date, no systematic, statistically valid million to 3 million have been reported. conducted. This is largely because of a lack survey of Muslims in America has been of reliable information about Muslims in this country.” Carol L. Stone, immigrants arrived in the United States because of the changes in the immigration immigrants arrived in the United States law and quotas . . . .”). prise 30% and Black Americans 24% prise 30% and W.D. Fard in 1930, Fard in W.D. high as 8 million. Jerry Kang, Comment, high as 8 million. Jerry Kang, Comment, American population is believed to be grossly underestimated. Part of this under- American population is believed to be designation of Arab Americans as white, estimation is a consequence of the formal Americans dis-identifying themselves as in addition to the phenomenon of Arab Center places the Muslim American popu- Arab following 9/11. The Pew Research lation at 2.75 million. 11 community in the United States. Only after the dissolution of the the dissolution States. Only after in the United community Quota of the Nationality and the abolition Act of 1924 Immigration lifted. immigration barriers to Muslim in 1965 were the Regime American population. minority comes from diverse national origins and cultural backgrounds compris- minority comes from diverse national origins speak a wide variety of languages and ing as many as sixty-five countries. ‘They educational, sectarian, and ideological represent a range of cultural, economic, positions.’”). were said to be Blackamericans.” S maining population is rounded out by a rapidly rising community is rounded out by a rapidly maining population of Hispanics (6%) Haddad ed., 1991). group makes up more than 30% of the total [Muslim American population].”); group makes up more than 30% of the also lamophobia 35559-nys_69-1 Sheet No. 27 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 27 35559-nys_69-1 35559-nys_69-1 Sheet No. 28 Side A 10/20/2014 11:50:05 AW EEMU L ? 3, 3 T ATH The two ODERN 63 P 64 According M 62 See generally AND , Introduction: Muslims in TATES MERICANIZATION S Orientalism. A 61 NITED U note 46, at 327. THE John Esposito, II. , supra USLIMS ON THE , HINA M see also : C in ASSIRI , B note 1, at 1–4. distortion of Arab identity is not to The legal note 57; ARAB & MUSLIM IDENTITIES ARAB & MUSLIM HANEA RIENTALISM note 1, at 6. G supra O , supra THE ORIENTALIST CONFLATION OF THE ORIENTALIST supra AID , EGAL S Today Islam ranks as the “fastest growing religion in the in religion growing the “fastest ranks as Islam Today at 2. This discourse is based on a civilizational binary whereby the Occi- AID 60 , L Id; see also Id. See Central to this system of knowledge is the oppositional rela- Central to this system of knowledge The legal conflation of Arab and Muslim identities emanates of Arab and Muslim identities The legal conflation Considering that Muslim American and Arab American are dis- American are American and Arab that Muslim Considering 63. S 60. 61. Stone, 64. 62. Not an airy European fantasy about the Orient, but a created Not an airy European fantasy about which, for many generations, body of theory and practice in investment. Continued there has been a considerable material a system of knowledge about investment made Orientalism, as filtering through the Orient the Orient, an accepted grid for as that same investment multi- into Western consciousness, just plied—indeed, made truly productive—the statements prolif- the general culture. erating out from Orientalism into USKOLA America or American Muslims R (2013). tionship between the Occident (roughly, the white “West”) and the tionship between the Occident (roughly, Under Orientalism, the Oc- Orient (roughly, the non-white “East”). and civilization; the cident is positioned as a site of enlightenment and barbarism. Orient is positioned as a site of despotism from Orientalist baselines. To understand what this might mean, it baselines. To understand what this from Orientalist Edward Said’s theory of is helpful invoke 2013]mixed.” WHITE BETWEEN MUSLIM AND in Ameri- to be conflated how they came one wonders tinct entities, with that question next part answers history. The can political how Ori- It shows theory of Orientalism. to Edward Said’s reference both in Arabs and Muslims found expression entalist ideas about courts. ideology and subsequently, the American political 43 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 15 8-OCT-14 15:03 United States,” and the United States boasts the most racially di- racially the most boasts States the United and States,” United in the world. community verse Muslim dental sees the Oriental as its diametric foil. This Article adopts the theoretical Era framework established in Said’s Orientalism to illuminate how Naturalization be confused with “Legal Orientalism,” an adoption of Said’s theoretical framework be confused with “Legal Orientalism,” an and propaganda-based orientation of to illustrate the United States’ political of law mechanisms. China as its antithesis with regard to rule to Said, Orientalism is, to Said, Orientalism (Yvonne Yazbeck Haddad & John Esposito eds., 1998). (Yvonne Yazbeck Haddad & John Esposito 35559-nys_69-1 Sheet No. 28 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 28 35559-nys_69-1 35559-nys_69-1 Sheet No. 28 Side B 10/20/2014 11:50:05 See TATES AND THE TATES AND THE S S NITED NITED U U HE In 1785, the U.S. In 1785, the at 102–07. HE 66 : T : T See id. BSCURED O RIENTALISM O The 124 American citizens on board 68 RESCENT C Consequently, the conflict sparked politi- Consequently, the conflict sparked HE MERICAN 70 , T , A ITTLE LLISON 1945 (3d ed. 2008). L J. A , 1776–1815, at xiv–xv (1995). The Barbary States encompassed INCE A. American Political Ideology Orientalism and S at 9–10. at 87. In 1793, at the very same time that the United States declared at 7. ORLD . at xv. OUGLAS OBERT The war was incited by the interception of an American by the interception of an The war was incited AST 65 D Id. Id Id. Id. 67 69 W E Only a few years after the United States gained independence Only a few years after the United Significantly for our purposes, Orientalist discourses did not discourses did Orientalist for our purposes, Significantly linked to in America are directly Orientalist discourses 70. 69. 65. 66.to refer to the Unites States’ view of Here, I use “American Orientalism” 68. 67. R IDDLE USLIM war on Algeria for enslaving its white citizens, it was funneling scores of West Afri- cans to work as slaves in the Antebellum South. M M judges framed the identity of immigrant petitioners from the Oriental Arab Mus- judges framed the identity of immigrant lim world. to take shape in the Eighteenth Century. Islam and the “Muslim World” that began term has been deployed more recently by This is not to be mistaken with how the who uses “American Orientalism” as a other scholars, most notably Douglas Little, that began to take shape after 1945. governmental view of the Middle East generally from England, the young nation was well on its way to its first war, from England, the young nation with the Barbary States. 44 of domina- of power, “[r]elationship in a interlocked are spheres the favors which hegemony,” complex of a degrees of varying tion, NYU ANNUAL SURVEYformer. OF AMERICAN LAW crucial the Muslim. The the Arab and between draw a distinction [Vol. 69:29 respect, “West.” In this the “East” and the was between distinction dichot- broader East-West was part of a conflation the Arab/Muslim in American how this ideology manifested omy. This Part discusses and the courts. political discourses with a Muslim en- years as a nation state. War America’s formative shaped a dis- United States gained independence tity soon after the “American Orientalism.” tinct brand of \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 16 8-OCT-14 15:03 present-day Morocco, Algeria, and Tunisia, in North Africa. present-day Morocco, Algeria, and Tunisia, ship off the coast of Algiers. vilified the Barbary States, and cal rhetoric and propaganda that enemy of the United States on the positioned them as the principal here is the fact that tense rela- world stage. Particularly important were subsequently enslaved, which sparked public and political sup- were subsequently enslaved, which declare war against the Barbary port for the United States to States. government found itself on the brink of war with the Barbary itself on the brink of war government found States. 35559-nys_69-1 Sheet No. 28 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 28 35559-nys_69-1 35559-nys_69-1 Sheet No. 29 Side A 10/20/2014 11:50:05 Islam was often Again, the main- Again, 74 72 78 In line with Orientalist In line 71 note 37, at 34–36. supra , note 11, at 260. EITZMAN supra , -W note 67, at 39–46. ADDY ARVEY Propaganda aimed at the government and people of Propaganda aimed at the government supra , ,M 75 & H 76 at 45–46 regarded Muhammad as a dangerous false (“Americans at 46. . at 112. LLISON LUM Id See, e.g. Id. Id. Id. 73 These political images trickled down to the American peo- These political images trickled By vilifying the Prophet, popular discourse constructed Islam By vilifying the Prophet, popular Part of the project of mobilizing popular and political support of mobilizing popular and political Part of the project American political propaganda against the Barbary States fo- the Barbary States against political propaganda American 77 71. 72. B 74. Century ranked as a core Again, Christianity during the late Eighteenth 75. A 73. 76. 77. 78. as the inassimilable foil to American progress, democracy, and lib- as the inassimilable foil to American erty. for war against the Barbary States was achieved through vilifying the Barbary States was achieved for war against adversary of Christianity. Islam as an age-old 2013] five began States the Barbary and States the United between tions Act. Naturalization the 1790 of the passage before years WHITE BETWEEN MUSLIM AND identity. on their Muslim cused largely 45 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 17 8-OCT-14 15:03 ple, forming a national and popular perception of Arabs as not only ple, forming a national and popular or cultural menace that exclusively Muslims, but also a civilizational and citizens. threatened American democracy the Barbary States illustrated the Prophet “Mahomet” as the very the Barbary States illustrated the discourse conveyed Islam’s most personification of tyranny. Popular a demagogue, and a “charismatic important figure as a hedonist, charlatan.” component of American national and individual identity. component of American national and individual religious political system . . . Islam, as the prophet and as the creator of an evil and being against liberty, it stopped progress. Americans saw it, was against liberty, and Thomas Jefferson, who welcomed the Both Republicans like Mathew Lyon and Ad- progressive libertarianism of the French Revolution, and Federalists like John ams, who feared the consequences of unchecked democracy, agreed that liberty and human progress were good things and the unbridled despotism of the Muslim world was a bad thing for preventing it.”). streaming of Orientalist thought in the United States engendered thought in the of Orientalist streaming identity were popular belief that Arab and Muslim the political and seeing the Barbary This prevented people from one and the same. entity acting in its really were: first, a political States for what they not populated ex- and second, a group of nations own self interest; Berber but by a wide range of indigenous clusively by Arabs, tribes. the Prophet the vilification of its seminal figure, maligned through Mohammed. baselines, Congress classified the people from the Barbary States as from the Barbary the people Congress classified baselines, their Muslim identity. on account of “Arabs” 35559-nys_69-1 Sheet No. 29 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 29 35559-nys_69-1 35559-nys_69-1 Sheet No. 29 Side B 10/20/2014 11:50:05 S ’ 81 OM- , C ULTURE Sale’s . 291, 300 C 83 EFFERSON FF ORAN J A K 19–36 (2009). HE HOMAS , T VANGELICAL INORITY , T M : E ERRORISM T Qur’an SLAM USLIM I PELLBERG GE OF A A. S The political indictment of The political indictment (George Sale, trans., 9th ed. 1923) and third, it indicated that and third, it indicated , 18 J. M 80 79 ENISE D George Sale’s translation of the HRISTIANS AND 82 See Islamic Influences on Emerson’s Thought: The Fas- Islamic Influences on Emerson’s Thought: The C OHAMMED ERIOD TO THE note 11, at 149. 26 (2013). P M supra , MERICAN OUNDERS OLONIAL , A F C ARVEY LCORAN OF IDD B. Orientalism in American Courts note 1, at 27. A & H S. K Clay v. United States, 403 U.S. 698, 708 (1971). Thomas Jefferson’s was Sale’s translation. supra LUM , B Suzan Jameel Fakahani, See HOMAS MONLY AID SLAM AND THE AND ALLED THE See Cf. , served as a commonly cited source for Islam’s holy book, Qur’an : I USLIMS FROM THE C Furthermore, the Barbary States’ enslavement of white Ameri- of white enslavement States’ the Barbary Furthermore, circulated during the United The discourses about Arabs that Political propaganda that maligned the Arab Muslim Orient that maligned the Arab Muslim Political propaganda AN 79. 81. T 80. S 82. 83. George Sale’s problematic translation of the ’ M UR Q This entrenched the presumption that anybody and everybody the presumption that anybody This entrenched ideals and so- sphere was hostile to American from this (imagined) Christianity, and ultimately, was ciety, was an age-old adversary of ineligible for American citizenship. presumptively inassimilable and 46State rhetoric slavery. drove Islam belief that the bolstered cans NYU ANNUAL SURVEY be- as a religious struggle Barbary States wars with the framed the OF AMERICAN LAW be- instead of a dispute and Islam, Christendom tween American the racial entrenched this framing further nations. First, tween two [Vol. 69:29 embod- Arab (this time was exclusively belief that Islam antebellum as synon- Christianity second, it deployed Barbary States), ied by the citizenship, ymous with American States also appeared in the courts. States’ conflict with the Barbary to Orientalist secondary sources to In fact, judges regularly referred of the Arab World, and the im- shore up their negative perceptions migrants that hailed from it. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 18 8-OCT-14 15:03 famous Qur’an Arabs or Muslims. judges presiding over hearings involving “Muslim slavery” was arbitrary, capricious, and prone to subjugate was arbitrary, capricious, and prone “Muslim slavery” that stood in its way—includingany race of people whites. to American ideals from this sphere as hostile branded immigrants thus inassimilable. and society, and (1734), served as one of the courts’ most referenced texts throughout the Naturali- zation Era. the Barbary States affected far more than its population. Rather, affected far more than its population. the Barbary States as an ideological oriented the Barbary States political propaganda Muslim Orient. microcosm of the broader Arab and ethno-racial shallow “[f]amiliarity with Is- problematic translation engendered and its presentation perpetuated a lamic law or the Muslim faith,” (1998). cination of a Nineteenth Century American Writer 35559-nys_69-1 Sheet No. 29 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 29 35559-nys_69-1 35559-nys_69-1 Sheet No. 30 Side A 10/20/2014 11:50:05 84 Ross v. note 1, at 6 , intimated that . Judge Bradley, supra at 454. , Id. AID S McIntyre see also Dainese v. Hale Decided eighteen years before Decided eighteen 85 signaled to immigrants from the re- signaled to immigrants from the 87 Other judges focused more squarely on Other judges focused more squarely 88 note 46, at 13; addressed the applicability of U.S. law to foreign sailors supra represented Muslims, and those perceived to be and those perceived to represented Muslims, text accompanying note 99. This ruling, coming during a period of en masse immigra- during a period of en masse This ruling, coming . at 463–64. Ross v. McIntyre , for example, the Supreme Court highlighted what it per- Supreme Court highlighted what , for example, the 86 Id See infra McIntyre The judicial narrative that natives from the Arab World were that natives from the Arab The judicial narrative U.S. courts not only institutionalized an image and under- U.S. courts not only institutionalized 84. Failinger, 86. 87. 85. hostility of the people of Moslem 140 U.S. 453, 463 (1891) (“The intense 88. 91 U.S. 13, 15 (1875). 2013] Muslims. Islam and both of representations of harmful range but Qur’an, of the translation neutral a not provide work did Sale’s and re- Orientalist binary reinforced the iteration that a politicized WHITE BETWEEN MUSLIM AND these Ori- Reliance on and tyranny. perceived hostility ified Islam’s identity as view of Arab entrenched the texts not only entalist but also for the “West,” that stands in to everything oppositional approval. with judicial these representations stamped well before the inassimilable began to take shape antagonistic and 47 In the region petitioned for citizenship. first immigrant from McIntyre of Moslem faith intense hostility of the people ceived to be “[t]he civilization].” [toward Christian \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 19 8-OCT-14 15:03 speaking for the Supreme Court in speaking for the Supreme Court Islam was a “pagan” faith. gion, and judges presiding over their naturalization hearings, that gion, and judges presiding over with Muslim identity) Arab identity (which was then synonymous of whiteness required to did not fit within the statutory definition obtain American citizenship. foreign and inassimilable relig- standing of Islam as an irreducibly on threatening the Christian ion, but also as one that was bent echoed the maligned view of character of the United States. Judges Court in Islam affirmed by the Supreme tion from the Arab World, they demonized as a “false the Prophet Mohammed, who the first native from the Arab World petitioned for citizenship in the Arab World petitioned the first native from court, Muslims, as a people who could not be integrated into American who could not be integrated Muslims, as a people society. (“[C]ontinued investment made Orientalism, as a system of knowledge about the (“[C]ontinued investment made Orientalism, the Orient into Western conscious- Orient, an accepted grid for filtering through ness, just as that same investment multiplied—indeed, made truly productive—the into the general culture.”). statements proliferating out from Orientalism to Christians, affected all their inter- faith to all other sects, and particularly course.”). on U.S. ships while in the territory of another country. 35559-nys_69-1 Sheet No. 30 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 30 35559-nys_69-1 35559-nys_69-1 Sheet No. 30 Side B 10/20/2014 11:50:05 , 92 see UR- T supra , See a persecu- LLISON A 90 ). In the land of , 354 U.S. at 58 n.8. These Supreme These see also 93 Reid dar al-harb a war-mongering creed, a war-mongering 91 The Origins of Muslim Racialization in U.S. Law The Origins of Muslim Racialization in U.S. E. L. 121, 125 (2008). ) and the land of warfare ( Karamian v. Curran, 16 F.2d 958, 959 (2d. Cir. 1927) Karamian v. Curran, 16 F.2d 958, 959 EAR Caldwell v. State, 118 N.W. 133, 135 (Neb. 1908). Caldwell v. State, 118 N.W. 133, 135 (Neb. note 1, at 59 (“[I]slam is judged to be a fraudulent new version note 1, at 59 (“[I]slam is judged to be a ex rel. & N Halladjian, 174 F. 834, 839 (C.C.D. Mass. 1909) (“The Turks and Halladjian, 174 F. 834, 839 (C.C.D. Mass. Ex parte supra dar al-Islam Still others framed Islam as a heathen foil, a heathen Islam as framed others Still , SLAMIC 89 note 52, at 172 (“The European was the enemy, and this was a primal NER AID See In re The foregoing suggests that the Orientalist views of Arabs as that the Orientalist views The foregoing suggests How would that affect their But what if Arabs were Christians? supra 93. Dainese v. Hale, 91 U.S. 13, 15 (1875); Mahoney v. United States, 77 U.S. 92. the Christian view of the state of President John Quincy Adams contrasted 89. S 91. 90. Nagwa Ibrahim, Comment, , United States 62, 68 (1869); also boys of his race were most cruelly treated (“[H]e [Yerwand Karamian] and other the hip to the knee with a hot steel rod, by the Turks, and he himself ‘burned from Reid v. Covert, 354 U.S. 1, 58 because they wanted [him] to be a Mohammedan.”); n.8 (1957). view that the “Mahometan law of na- nature as “a state of peace” with the as a state of war.” tions . . . considered the state of nature the Saracens did not exterminate the people they conquered. Conversion to Mo- the Saracens did not exterminate the people offered as alternatives to the sword.”); hammedanism and tribute were usually 48prophet.” NYU ANNUAL SURVEY rival. Crusades era longtime and Christianity’s OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 20 8-OCT-14 15:03 reaction that came from Islamic tradition which divided the world into the land of reaction that came from Islamic tradition which divided the world into the land Islamic rule ( of some previous experience, in this case Christianity.”); of some previous experience, in this case Court decisions did not involve an immigration or naturalization involve an immigration did not Court decisions and Mus- image of Arab a maligned helped mainstream claim, but Cases that Naturalization into the Arab that carried lim identity followed. and under- who would threaten Christianity inassimilable people before the first civilization were firmly established mine American citizenship. The the Arab World petitioned for immigrant from by the language of discourse, accompanied logic of this racialized Cases. prominently in the Arab Naturalization race itself, featured cases was a funda- underwriting the naturalization This is because citizenship fit about race: Does the litigant seeking mental question the extent that definition of whiteness? To within the statutory was presumptively to be Muslims, the answer Arabs were perceived petitioners from was placed against Muslim no. A per se restriction the Arab World. answer is that Christianity pro- ability to claim whiteness? The short and citizenship. But as illus- vided a potential route to whiteness Christianity did not always trated in the following section, tor and forcible convertor of Christians, of convertor forcible tor and warfare (European dominance), Islamic resistance was manifested in jihad, which could mean either a struggle of arms or a struggle of words and the soul.”). note 67, at 38. 7 UCLA J. I 35559-nys_69-1 Sheet No. 30 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 30 35559-nys_69-1 35559-nys_69-1 Sheet No. 31 Side A 10/20/2014 11:50:05 MER- ROSS- C MERICA REATER , A A in G Others , 98 OOTS However, R 94 IVES IN and a major- RAB L 100 The Background and : A OPULATION OF ASTERN The vast majority of P E 99 MREEKA 192, 193 (Michael W. Sulei- A YRIAN S IDDLE UTURE , M ALLED F Samir Khalaf, C EW note 15, at 86. INNEY N note 15. K III. see also C TUDY OF THE supra as Syrians in the homeland called as Syrians in the OUNTRY , 96 supra , A S , AFF D. M , A C note 15. UILDING A AFF note 7; : B N ILLER ARYN ALEK 97 supra M The Deteriorating Ethnic Safety Net Among Arab Immigrants in The Deteriorating Ethnic Safety Net Among Arab M , note 7, at 2 (“Many Lebanese Christians, who constituted note 7, at 2 (“Many Lebanese Christians, supra & K PASSAGE INTO WHITENESS PASSAGE INTO LIA MERICA AFF see also A note 15, at 118. N A OPKINS supra 18 (Eric J. Hooglund ed., 1987) (“[O]nly two Syrian immigrants 18 (Eric J. Hooglund ed., 1987) (“[O]nly H ARVASTI or “Nay Yark,” supra M MADE IN OUR IMAGE: CHRISTIANITY AS MADE IN OUR , 95 , at ix (2009). RABS IN see also Suleiman, UCIUS A ATERS AFF 5 (1904); MIR ICAN ING THE See See generally in W , ORK TORIES Emigration from the Arab World commenced before the for- the Arab World commenced before Emigration from Between 1870 and the early 1930’s, roughly 130,000 Arab im- the early 1930’s, roughly 130,000 Between 1870 and 94. Louise Cainkar, 96. N 97. 100. L 98. Suleiman, 99. A 95. Y S EW mation of the modern Arab World. The first immigrant waves from Arab World. The first immigrant mation of the modern 1820s. to the United States in the the region traveled 4–6 (2004); N Chicago migrants came to the United States, many because they were to the United States, many because migrants came under Ottoman rule. pushed there by marginalization 2013] Arab the from immigrants for Christian citizenship guarantee World—in of all Cases, Naturalization Arab of the first eight the judges em- presiding Christian petitioner, a Syrian which involved WHITE BETWEEN MUSLIM AND of Chris- the authenticity to assess methodologies ployed different rulings. a number of conflicting resulting in tian identity, 49 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 21 8-OCT-14 15:03 entered the United States in 1869. In the following decade, between 1871 and entered the United States in 1869. In recorded.”). 1880, another sixty-seven persons . . . were America, emphasized religious persecution most of the early Arab arrivals in North as the main causes of their emigration and the lack of political and civil freedom regime.”). Alixa Naff offers a coun- from lands ruled by an oppressive Ottoman Ottoman rule: “That persecution in tering view on Christian persecution under before World War I was a myth found Syria drove Christians from their homeland on Arabs in America—amainly in the post-World War II studies myth that tended well as the social and political realities of to distort the immigration motivations as late nineteenth-century Syria.” N them, until the 1870s. them, until the flocked to the United States for opportunities made available by flocked to the United States for growth. rapid industrialization and economic these early immigrant waves identified as Christians, these early immigrant waves identified United States Before World War I Causes of Lebanese/Syrian Immigration to the ity of them practiced “Eastern-rite sects” indigenous to the Le- ity of them practiced “Eastern-rite man ed., 1999). the first major waves from the Levant did not set course for waves from the Levant did not the first major “Amreeka” 35559-nys_69-1 Sheet No. 31 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 31 35559-nys_69-1 35559-nys_69-1 Sheet No. 31 Side B 10/20/2014 11:50:05 ITY , C Dur- note 2, 107 Settlers supra 104 , at 19. They com- Id. IASPORA 227, 227 (Michael W. D and remote and cen- and remote and UTURE 105 F MERICAN EW A N YRIAN S ARLY UILDING A Little Syria was a living and lurid bal- Little Syria was could be seen walking through nearby could be seen walking E : B 103 106 Debating Palestine: Arab-American Challenges to Zionism Debating Palestine: Arab-American Challenges from the Arab World from the Little Syria (Now Tiny Syria) Finds New Advocates MERICA note 7, at 2. note 15, at 112. A note 5, at 18. Maronites were Catholic natives of present- note 5, at 18. Maronites were Catholic note 15 (“[T]he immigrants were overwhelmingly Christians note 15 (“[T]he immigrants were overwhelmingly supra —the home country—on American soil. supra THNICITY IN THE supra , , (Jan. 1, 2010, 12:00 PM), http://cityroom.blogs.nytimes.com/ at 88. , E RABS IN supra note 32, at 242. A AFF Id. , IMES N bilaad in RFALEA AFF AYYALI A. Wave of Immigrants Christians: The First Syrian , supra See , Arab Muslims traveled to the United States in far smaller in far States United to the traveled Muslims Arab ACE AND The Church was “Little Syria’s” spiritual, social, and cultural “Little Syria’s” spiritual, social, The Church was R , N.Y. T 101 103 Washington Street, New York, NY 10006: the once-proud Street, New York, NY 10006: the 103 Washington Social science research indicates that fewer than 3% of these Social science research indicates 102 101. N 103. Lawrence Davidson, 105. David W. Dunlap, 102. K 106. The Levant was the region that encompasses present-day Syria, Lebanon, 107. 104. O OURANI OOM R 50vant. NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 22 8-OCT-14 15:03 prised a considerable percentage of early migration from the Arab World to the prised a considerable percentage of early United States. 1917–1932 day Lebanon, named after “a fifth-century saint called Maron.” day Lebanon, named after “a fifth-century of the Eastern-rite sects—mainly Maronite, Melkite, and Eastern Orthodox . . . .”); see also address of St. Joseph’s Maronite Catholic Church in Lower Manhat- Maronite Catholic Church address of St. Joseph’s tan. 1880s. nucleus during the numbers, as a consequence of comparatively better living condi- living better of comparatively a consequence as numbers, fear that rule, and under Ottoman to Arab Christians, tions, relative was slim. of naturalization the possibility parcel of America early settlers claimed a small Battery Park. These for what would biggest city, setting the foundation in the heart of its Arab American community. evolve into the first identified as Muslims. first wave immigrants from the region 2012/01/01/little-syria-now-tiny-syria-finds-new-advocates (“In 1891, Yusuf Sadal- 2012/01/01/little-syria-now-tiny-syria-finds-new-advocates town of Baskinta, in the part of the Otto- lah arrived in Lower Manhattan from the by the name of Joseph Sadallah, he set man Empire that is now Lebanon. Going up a trading shop on Washington Street . . . .”). as Jordan, Israel, and the Palestinian Occupied Territories; it was also referred to “Greater Syria.” lad of the from Damascus, Mount Lebanon, Baskinta, from Damascus, tral corners of the Levant, tral corners of the the Levant (1899–1921),ing the height of migration from approxi- Arabs migrated to the United mately “3,000 to 8,000 Levantine Suleiman ed., 1999). at 6–7.bred a “distinctive Christian culture expressed in Arabic.” These sects H 35559-nys_69-1 Sheet No. 31 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 31 35559-nys_69-1 35559-nys_69-1 Sheet No. 32 Side A 10/20/2014 11:50:05 These demographical figures demographical These 109 A.H. Keane, Joseph Deniker, and 111 , note 7, at 4–6. many of the judges presiding over their natu- many of the judges note1910 U.S. Census recorded 55,102 94, at 193 (“The supra 110 In 1924, the Syrian Christian population in the in population Christian Syrian the In 1924, note 97 at 21. 108 supra , Syrian Christian petitioners came to understand , Syrian Christian supra Suleiman, See Shishim B. Citizenship Christian Purity and Its Nexus to American The view that Syrian Christian identity was distinct from Arab Christian identity was distinct The view that Syrian Since Arab identity, having been conflated with Islam, was with Islam, been conflated identity, having Since Arab Eugenic research popularized the idea among judges that Syr- Eugenic research popularized the 108. Cainkar, 109. Khalaf, 110. 111. Dow v. United States, 226 F. 145, 146 (4th Cir. 1915). foreign-born Syrians (including Lebanese) and Palestinians in the United foreign-born Syrians (including Lebanese) States . . . Arab American scholar Philip Hitti estimated that there were about 200,000 ‘Syrians’ in the United States in 1924.”). 2013] annually.” States WHITE BETWEEN MUSLIM AND 51 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 23 8-OCT-14 15:03 ralization proceedings viewed Arab identity as Muslim, and Syrian viewed Arab identity as Muslim, ralization proceedings classification. Fol- as a wholly distinct ethno-racial Christian identity lowing only escape from Christian identity provided the that invoking their was vital to ac- Arab with Muslim identity, which the conflation of cessing whiteness. Johan Friedrich on the eugenic research of identity was based Syrian Christians as white in Blumenbach, who initially classified the late Eighteenth Century. clashed with the judicial and broader distortion of Arab identity as of Arab and broader distortion with the judicial clashed identity. with Muslim synonymous toward the lone pathway offered inassimilable, Christianity branded the Naturaliza- Christian immigrants during citizenship for Syrian identified the majority of these Syrian Christians tion Era. While themselves as Arab, United States was 95.5% Christian, and only 4% of the settlers from settlers 4% of the only and Christian, was 95.5% States United Muslim. identified as the Levant Daniel Brinton echoed Blumenbach’s contention that Syrian Chris- Daniel Brinton echoed Blumenbach’s significantly influenced judicial tians were white. These theories cases. Although Syrian Christian reasoning in the naturalization research as an ethno-racial clas- identity was established by eugenics (Muslim) identity, the rulings of sification separate from Arab proceedings often hinged on judges presiding over naturalization the “Syrian Christian” identity of the determination of the purity of them. Christianity as religion was the petitioners that came before than Christianity as racial less relevant to the judges’ determination marker. racially distinct from Arabs. ian Christians were a group of people of this ethno-racial distinction. The Again, religion formed the basis was a route toward whiteness Christian identity of Syrian Christians 35559-nys_69-1 Sheet No. 32 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 32 35559-nys_69-1 35559-nys_69-1 Sheet No. 32 Side B 10/20/2014 11:50:05 In ONSTRUCTION OF C EGAL L HE While presiding over : T 113 AW L Consistent with the court’s ruling Najour immigrated to the United States in 112 HITE BY Id. , W OPEZ L 1. Miscegenation with Muslims ANEY Najour, 174 F. 735 (C.C.N.D. Ga. 1909). Costa Najour was a F. H AN I , many judges positioned Syrian Christian purity as the , many judges positioned Syrian See In re See Id. Syrian Christian petitioners emigrated from a region judges Syrian Christian petitioners emigrated that the Syrian Christian Eugenic science drove early rulings However, Naturalization Era judges did not simply grant these Era judges did not simply However, Naturalization 67–68 (1996). 113. 112. Shishim Najour, Judge Newman relied on Dr. A.H. Keane’s “The World’s Najour, Judge Newman relied on Refers to race, rather than to color, and fair or dark complex- Refers to race, rather than to color, control, provided the person ion should not be allowed to the classification of the seeking naturalization comes within the Syrians as belong- white or Caucasian race, and I consider ACE Maronite Syrian from Mt. Lebanon. 1902, and subsequently traveled south to Atlanta, where he opened up a dry goods shop. R perceived to be populated exclusively by Muslims. This view shifted perceived to be populated exclusively petitioners to prove that they the burden onto the Syrian Christian their Syrian Christian purity was were, in fact, Christians, and that miscegenation with the Muslim not jeopardized by conquest and majority population in the region. petitioners were “white by law.” 52 World Arab from the Muslims or to Muslims to Syrian available not that of immigrants majority the vast above, discussed As at large. NYU ANNUAL SURVEY Twentieth and early in the Nineteenth the United States came to OF AMERICAN LAW In accor- Christians. World were Syrian from the Arab Centuries waves, the immigrant of these initial the demographics dance with [Vol. 69:29 for citi- that petitioned the Arab World immigrants from first eight Christians. in court were Syrian zenship identification as based on their subjective petitioners citizenship from the Arab Since these immigrants hailed Syrian Christians. prism that them through an Orientalist World, judges examined judges approached Muslim identity. Therefore, conflated Arab with great skepticism, of Syrian Christians with the citizenship petitions purity of the the “Syrian Christian” (racial) often debating whether with Muslims, or diluted by ancestral intermixing petitioners was who performed petitioners were covert Muslims even whether the to get citizenship. Christian identity \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 24 8-OCT-14 15:03 re definition of whiteness, People” to find that the statutory in determinant metric for racial belonging. 35559-nys_69-1 Sheet No. 32 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 32 35559-nys_69-1 35559-nys_69-1 Sheet No. 33 Side A 10/20/2014 11:50:05 , In re In re In re , 179 F. at Ellis Id. , Keane’s findings were , Keane’s United States v. Cartozian In This distinction persuaded This distinction Najour 120 118 117 , 6 F.2d at 920. Armenia remained a homogenously Christian na- Armenia remained a homogenously , United States v. Cartozian, 6 F.2d 919, 920 (1925) (explaining , United States v. Cartozian, 6 F.2d 919, 114 at 920 (“[T]he [Armenian] people . . . have always held them- Less than one year after one year after Less than Ellis, 179 F. 1002, 1002–04 (D. Or. 1910). , 6 F.2d at 919. 121 122 at 735. at 735–36. at 736. at 921 (internal quotation marks omitted). Judge Wolverton scrolls at 921 (internal quotation marks omitted). 116 Judge Newman concluded that Costa George Najour—a that Costa George concluded Judge Newman Id. Id. Id. In re See, e.g. Cartozian Id. See id. to echo that Christianity isolated Armenians from the Mus- isolated Armenians from to echo that Christianity 115 Syrian Christian identity as white was more tenuous mainly be- Syrian Christian identity as white Armenians also procured whiteness by means of their Christi- procured whiteness by means of Armenians also In line with the eugenic classification of Syrian Christians as Syrian Christians classification of the eugenic In line with that a Syrian Catholic (Maronite) was white by law, and could (Maronite) was white by that a Syrian Catholic 119 ; Cartozian 114. 115. 116. 117. 118. 119. District Court. Both cases were decided by the Oregon 120. 121. 122. ing to what we recognize, and what the world recognizes, as the recognizes, world what the and recognize, what we ing to race. white Ellis a citizen. be naturalized as again cited as the basis for a federal court in Oregon to rule in in Oregon to rule a federal court as the basis for again cited lim ocean that encircled their nation. lim ocean that encircled cause of the risk that they had intermingled with Muslims. In cause of the risk that they had intermingled anity. The courts identified how Christianity set Armenians apart identified how Christianity set anity. The courts Arab neighbors. from their regional, 2013] WHITE BETWEEN MUSLIM AND white, 53 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 25 8-OCT-14 15:03 tion, while Syria, even long before Ottoman rule, was the most relig- tion, while Syria, even long before Christian homogeneity in Armenia iously diverse part of the region. themselves aloof from the Turks, evidenced that its people “held Muslims, which delivered them the Kurds,” and, in other words, that encumbered Syrian whiteness free of the skepticism Christians. Christian from Mount Lebanon—fitChristian of the statutory bounds within whiteness. the same court that singled out the petitioner’s Catholicism in singled out the petitioner’s Catholicism the same court that Ellis Judge Wolverton quoted a eugenic finding that “it would be utterly quoted a eugenic finding that “it Judge Wolverton belonging to the them [Armenians] as not impossible to classify white race.” that because Armenians were almost all Christians, and their neighbor states Mus- that because Armenians were almost all lim or heterogeneous, they were distinct). 1002 through contemporary ethnological research and accords with the conclusion of through contemporary ethnological research professor of anthropology, whose expert Dr. Frans Boas, a Columbia University undeniably white. testimony concludes that Armenians are ac- selves aloof from the Turks, the Kurds, and allied peoples, principally . . . on count of their religion . . . . The Armenians . . . very early, about the fourth century, espoused the Christian religion, and have ever since consistently adhered to their belief, and practiced it.”). 35559-nys_69-1 Sheet No. 33 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 33 35559-nys_69-1 35559-nys_69-1 Sheet No. 33 Side B 10/20/2014 11:50:05 , 6 A 127 Shahid did Shahid. 128 see also Cartozian 126 and the Christian population of Christian population and the 124 , his ruling was driven by an in-court Here, Judge Lowell marked the per- Judge Lowell marked Here, 130 Shahid 123 note 97, at 24–25to the period between 1861 (referring supra Thus, according to Smith, Shahid’s dark skin sig- Thus, according to Smith, Shahid’s Shahid, 205 F. 812, 813 (E.D.S.C. 1913). , 176 F. at 467 (C.C.D. Mass. 1910). 129 Mudarri, 176 F. 465, 466 (C.C.D. Mass. 1910). Mudarri, 176 F. 465, 466 (C.C.D. Mass. Halladjian 174 F. 834, 835 (C.C.D. Mass. 1909); Halladjian 174 F. 834, 835 (C.C.D. Mass. Lowell noted that unlike Armenian Christians, who Armenian Christians, noted that unlike Lowell reveals that suspected miscegenation with Muslims reveals that suspected miscegenation Khalaf, at 812. . at 813. . In addition, it is possible that Smith disagreed with the eugenicist 125 In re See In re Mudarri Ex parte Id. Id Id , the court stated that “[t]hose who call themselves Syrians call themselves who “[t]hose that court stated , the Shahid To resolve the uncertainty surrounding whether Syrian Chris- surrounding whether To resolve the uncertainty 123. 124. 125. 126. 127. 128. 129. 130. naled a degree of racial miscegenation with Muslims that diluted naled a degree of racial miscegenation undermined his petition his Syrian Christian purity and ultimately for American citizenship. for citizenship. Christianity, could foil a Syrian Christian’s petition tian identity was “white,” some Naturalization Era judges reached “white,” some Naturalization Era tian identity was Syrian Christian marker of phenotype to ascertain for the familiar is in particularly salient example racial purity. One 54Mudarri call those who than mixed more of a blood probably are by race NYU ANNUAL SURVEY Armenians.” themselves OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 26 8-OCT-14 15:03 ceived difference between the religious heterogeneity of Syria (still of the religious heterogeneity between ceived difference 1910) province in an Ottoman Armenia. not only Syrian Christians neighbors, from their Muslim lived apart had intermixed to Muslims, but also likely lived in close proximity judge refused to As a consequence, the with them for centuries. as white and classification of Syrian Christians defer to the eugenic petition for citizenship. denied Mudarri’s examination of the petitioner’s physical characteristics. Engaging in examination of the petitioner’s physical Judge Smith described Shahid his own brand of in-court eugenics, or somewhat darker than is the to be “about [the color] of walnut, blood between the white and the usual mulatto of one-half mixed negro races.” not expressly identify himself as an Arab. Although Judge Smith not expressly identify himself as cited eugenic science in and 1915 as the “last four decades of Ottoman Rule”). and 1915 as the “last four decades of Ottoman Christian from Zahle, in modern-day Lebanon, Shahid petitioned in modern-day Lebanon, Christian from Zahle, he was a Christian South Carolina, asserting that for citizenship in province of the Ottoman Empire. native of the Syrian F.2d at 920–22 would be utterly impossible to classify them [Armenians] as (“[I]t [T]hey amalgamate readily with the white not belonging to the white race . . . . United States.”). races, including the white people of the consensus that Syrian Christians were white, and devised a rationale that side- stepped it. However, what is significant is that he relied on a decidedly racialized logic to resist the conclusion that the petitioner was white. 35559-nys_69-1 Sheet No. 33 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 33 35559-nys_69-1 35559-nys_69-1 Sheet No. 34 Side A 10/20/2014 11:50:05 Thus, the “Ma- 135 133 Judge Smith compared the petitioner’s Other rational explanations, such as Other rational explanations, 132 134 131 ruling illustrated how deeply maligned Arab Mus- ruling illustrated , the court’s determination of Muslim miscegenation made the , 205 F. at 813. at 817. at 813–14.be noted that there are different variations to It should Shahid at 816. Shahid Id. See id. Shahid See id. The Judge Smith adopted the racial logic of the one-drop rule and the racial logic of the one-drop Judge Smith adopted 131. 132. 133. 134. 135. In What is the race or color of the modern inhabitant of Syria it is inhabitant of Syria of the modern race or color What is the been of the world has area to say. No geographical impossible non- of Hittite or began. Originally since history more mixed Egyptian domination, at least under races, for a time Semitic al- and possibly of largely, taken possession then apparently with im- by the Semitic peoples, then overlaid most exclusively, followed by European races, then again migration from Mahom- conquest in the shape of the Arabian another Semitic . . etan eruption. . the one-drop rule: “[I]t is true that the question of the proportion of colored the one-drop rule: “[I]t is true that the person, as distinguished from a white per- blood necessary to constitute a colored of opinion in the different states; some son, is one upon which there is a difference blood stamps the person as belonging holding that any visible admixture of black [N.C.] 1, p. 11); others that it depends to the colored race (State v. Chaver, 5 Jones v. State, 4 Ohio 354; Monroe v. Collins, upon the preponderance of blood (Gray predominance of white blood must only 17 Ohio St. 665); and still others, that the (People v. Dean, 4 Michigan 406; Jones v. be in the proportion of three-fourths. Plessy v. Ferguson, 163 U.S. 537, 552 Commonwealth, 80 Virginia 538 (1885).” (1896). 2013] citizenship toward pathway a clear provide invariably did not again, argued, Smith Judge immigrant-petitioners. for Syrian WHITE BETWEEN MUSLIM AND 55 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 27 8-OCT-14 15:03 exposure to the sun or the arbitrary decisionmaking of the judge, exposure to the sun or the arbitrary the proceeding. were not even considered during complexion to the phenotype of African Americans in South Caro- complexion to the phenotype of and observed that Shahid was lina, the seat of his courthouse, usual mulatto of one-half mixed “somewhat darker than is the negro races.” blood between the white and the lim (racial) identity was during the Naturalization Era. It also high- was during the Naturalization lim (racial) identity identity with Arab conflation of Muslim lighted the inextricable identity. purity was that the petitioner’s Christian its variations to determine sullied by Muslim blood. hometan” stain evident in the petitioner’s phenotype foiled his peti- hometan” stain evident in the petitioner’s tion for naturalization. presumption of non-whiteness irrefutable, and extinguished the relevance and resonance of Shahid’s Christianity in court. 35559-nys_69-1 Sheet No. 34 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 34 35559-nys_69-1 35559-nys_69-1 Sheet No. 34 Side B 10/20/2014 11:50:05 139 MMI- I TORY OF S OST L HE : T 8–9 than a (2006) (“For more AITING W TATES S Other Muslim immigrants who re- Other Muslim immigrants Muslims in the Arab World were in the Arab World Muslims 138 136 NITED Muslim immigrants from the Arab Muslim immigrants from the Not a single Muslim immigrant from Not a single Muslim U MERICANS IN 140 137 , A note 46, at 141. supra , note 97, at 21. (“[Muslim immigrants] faced psychological, note 97, at 21. (“[Muslim immigrants] note 15, at 2, 112. OTOMURA 2. Muslims? or Covert Christians Real ASSIRI M supra supra B ITIZENSHIP IN THE , C . IROSHI AFF GRATION AND Id HANEA The judicial interpretation of whiteness barred Muslims from barred Muslims of whiteness interpretation The judicial Muslim immigrants from the Arab World sometimes converted from the Arab World sometimes Muslim immigrants 136. Khalaf, 137. N 139. H 138. emigrated from Syria to New One Mohammed Asa Abu-Howah, who 140. religious, and cultural obstacles, and hence initially displayed considerable reluc- religious, and cultural obstacles, and hence tance to immigrate to the West.”). This was in contrast to the preferred status of immigrants who in- This was in contrast to the preferred Motomura has characterized as tended to naturalize, those Hiroshi “Americans in Waiting.” 56 NYU ANNUAL SURVEY OF AMERICAN LAW as citizens. being naturalized [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 28 8-OCT-14 15:03 World, like immigrant communities from China or Japan, occupied World, like immigrant communities during the Naturali- a position of legal purgatory as non-desirables would not be judicially rec- zation Era, realizing that their religion York in 1903, changed his name to A. Joseph Howar, because “people [he] met on York in 1903, changed his name to A. Joseph [his] name. They said it labeled [him] as a the boat told [him he’d] better change allow a Muslim to enter the United Muslim, and no immigration officer would States.” G the Arab World petitioned for American citizenship before 1942. petitioned for American citizenship the Arab World that their the Arab World clearly appreciated Muslim settlers from American citizenship. religion precluded the judicial and changed their names to counter to Christianity and toward Islam. societal hostility fused to convert to Christianity as a prospective means toward citi- fused to convert to Christianity as “non-intending citizens.” zenship accepted a subjugated status aware of the negative attitudes toward their faith in the United their faith in the toward the negative attitudes aware of during the emigrating many of them from preempted States, which not to many chose those who did migrate, Era. For Naturalization 95% of the first Indeed, the very fact that pursue naturalization. indicates how ani- from the region were Christian immigrant waves from migrat- preempted and suppressed Muslims mus toward Islam States. ing to the United century and a half—from 1795 to 1952—everyto applicant for naturalization had in advance. This declaration gave any file a declaration of intent several years noncitizen who was eligible to naturalize a precitizenship status that elevated him, even from his first day in America, well above those who had not filed declarations and therefore were not seen as on the citizenship track. Many statutes throughout this period expressly preferred intending citizens.”). 35559-nys_69-1 Sheet No. 34 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 34 35559-nys_69-1 35559-nys_69-1 Sheet No. 35 Side A 10/20/2014 11:50:05 . Shahid decision. 143 bona fides In Persuaded Shahid, 205 F. 142 146 and evidence of Ex parte Dow Ex parte 144 Woods deferred to note 1, at 58–59, 61, 71, 147 , supra , Ellis AID S , and Dow v. United States Dow v. United see also While Judge Smith did not take issue While Judge Smith did not take for a reformation of the naturalization of the for a reformation Najour Therefore, the vast majority of Arab majority the vast Therefore, 145 , were ruled white by law and granted citi- were ruled white 141 waited court was stumped and rendered no ruling, court was stumped Ellis , Judge Smith wanted to know whether George , Judge Smith wanted Shishim note 46, at 154. , Judge Smith found that the Christian identities of that the Christian identities , Judge Smith found Dow, 211 F. 486, 488 (E.D.S.C. 1914); , and Dow, 211 F. at 488; supra Mudarri , he remained skeptical of Dow’s Christian , he remained skeptical of Dow’s , Mudarri, 176 F. 465, 465, 467 (C.C.D. Mass. 1910). Mudarri, 176 F. 465, 465, 467 (C.C.D. Mass. C. Religion: White by . (“And it seems that in accordance with this construction of the statute Najour ASSIRI In re Ex parte Id Ex parte Ex parte Dow , Shahid B In George Dow appealed the decision. Judge Woods reversed, rul- George Dow appealed the decision. Up until 1915, the first seven cases involving a Syrian Christian cases involving 1915, the first seven Up until Ex parte Dow 141. naturalization, fearing the risk of a Many Muslim settlers opted to avoid 142. 143. the “[A]n enraged Syrian community” appealed 144. 146. Dow v. United States, 226 F. 145, 148 (4th. Cir. 1915). 147. 145. HANEA Dow, a Syrian Christian, was a “real” Christian. Smith’s answer was was a “real” Christian. Smith’s Dow, a Syrian Christian, an emphatic no—theArabic fluency was prima facie petitioner’s Arabic was spoken across re- evidence of Muslim identity. Although Judge Smith interpreted the peti- ligious lines in the Arab World, identity, tioner’s fluency as a marker of Muslim flying under the radar as non-in- negative judicial determination. Therefore, believed. tending citizens was a better option, they 2013] whiteness. with onciled WHITE BETWEEN MUSLIM AND 57 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 29 8-OCT-14 15:03 with Dow’s phenotype reflecting Christian (racial) impurity, as he with Dow’s phenotype reflecting did in Muslim immigrants did not exercise the option of petitioning for petitioning of the option exercise did not immigrants Muslim but simply citizenship, regime. Ultimately, Smith was unconvinced that Dow was authentically Ultimately, Smith was unconvinced Christian, and denied his petition. Christian population he repre- ing that George Dow and the Syrian of whiteness. sented fit within the statutory definition G by the decisions in the “Islamic conquest” that overtook the Levant, the region from the “Islamic conquest” that overtook which the petitioner came. petitioner had failed to establish judicial consensus as to whether to establish judicial consensus petitioner had failed of whiteness. In fit within the statutory definition Syrian Christians The petitioners in split on this very question. fact, the courts were Shishim and 74–75, 91, 205, 268, 303–04. a large number of Syrians have been naturalized without question. It is significant zenship. The which had the effect of denying the petitioner’s claim. of denying the petitioner’s which had the effect impure and illegitimate, respectively. the petitioners were 812, 813. 35559-nys_69-1 Sheet No. 35 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 35 35559-nys_69-1 35559-nys_69-1 Sheet No. 35 Side B 10/20/2014 11:50:05 see 151 and Shahid can be understood as , that Syrian Christians ruling marked a highpoint for Chris- ruling marked a highpoint for Dow v. United States : Nascent “Arab American” Identity signaled a moment when Naturalization Era courts signaled a moment when Naturalization capped the Syrian Naturalization Cases, es- capped the Syrian Dow v. United States as Christian and White Dow Thus, 149 152 Rather, Judge Woods’ ruling restored the primacy restored the Judge Woods’ ruling Rather, Halladjian, 174 F. 834, 839 (C.C.D. Mass. 1909) (“The Turks and Halladjian, 174 F. 834, 839 (C.C.D. Mass. 150 . He acknowledged that “modern Syrians are of mixed are Syrians that “modern acknowledged He D. After at 146. . of the Caucasian race, thus . (“They belong to the Semitic branch Dow v. United States 148 Id. Id Id Dow v. United States See In re Dow v. United States However, Woods did not engage in the phenotypic or ancestral engage in the phenotypic Woods did not However, The Karamian v. Curran, 16 F.2d 958, 959 (2d. Cir. 1927) (“[H]e [Yerwand 148. 149. 150. 151. 152. tablishing the narrow rule that Syrian Christians were white by law rule that Syrian Christians tablishing the narrow Furthermore, the for American citizenship. and collectively eligible the Arab World) Christians as a white minority (in status of Syrians Era judges, signaled to many Naturalization surrounded by Muslims in particularly Woods of the courts, the Congress has not that, in view of these decisions and this practice seen fit to change the law.”). who are in origin Mongolian.”). widely differing from their rulers, the Turks, needed safe harbor from Muslim conquest, compelled conversion, from Muslim conquest, compelled needed safe harbor and persecution. Christian, and therefore, could be finally accepted that Syrians were authentically The court finally came to this conclu- assimilated into whiteness and citizenship. proceedings. sion after six years, and eight naturalization they conquered. Conversion to Mo- the Saracens did not exterminate the people hammedanism and tribute were usually offered as alternatives to the sword.”); 58 white as to be classed “were Syrians that conclusion eugenic the people.” NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Judge Smith in purity as did of Dow’s Christian scrutiny also Karamian] and other boys of his race were most cruelly treated by the Turks, and he himself ‘burned from the hip to the knee with a hot steel rod, because they wanted [him] to be a ‘Mohammeddan’.”); Reid v. Covert, 354 U.S. 1, 58 (1957). \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 30 8-OCT-14 15:03 Syrian, Arabian, and even Jewish blood,” with “Arabian” used as a with “Arabian” Jewish blood,” and even Syrian, Arabian, Muslim. proxy for for the rescue of Christian minori- a judicial declaration that called when the Ottoman Empire—theties in the Arab World at a time of Islam in 1915—wasprimary political manifestation at war with War I. the European allied powers in World of eugenics science in naturalization proceedings involving immi- in naturalization proceedings of eugenics science of Christian Arab World. With the categorization grants from the as Chris- the petitioner’s self-identification Syrians thus established, of whites. to place him within the category tian seemed enough Ex parte Dow Ex parte tian immigrants from the Arab World. The decision preceded xeno- tian immigrants from the Arab World. 35559-nys_69-1 Sheet No. 35 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 35 35559-nys_69-1 35559-nys_69-1 Sheet No. 36 Side A 10/20/2014 11:50:05 IB- L 158 This in- 155 27–58 (2002). The Act aimed 154 IGRATION IN THE 157 MERICA M 35–36 (2001). A THNIC : E , projecting the mastery of nature Entry into the United States United into the Entry RIGIN 153 The Act was in large part made The Act was in large ELONGING IN EASSESSMENT O B 156 : A R more geometrico note 112, at 11 (“From 1924 [to] 1952, persons note 112, at 11 (“From 1924 [to] 1952, LACE AND UGENICS ELECTING BY , P had an immense impact on the identities of had an immense supra , E , S , YNN OPEZ L OPPKE ACOBSON J L J ANEY AVID ICHARD H D R at 109. HRISTIAN 40 (2005) (“The prominent role of eugenics experts in the crafting of 40 (2005) (“The prominent role of eugenics ERAL See Id. See Cf. TATE Dow v. United States The Immigration Act of 1924, heralded as the “greatest tri- as the “greatest 1924, heralded Act of The Immigration note 97, at 20–21. 1910, the U.S. Census “recorded 55,102 foreign-born By migration from the Levant, and note 94, at 193. In order to further suppress 153. 157. 158. C 154.its quotas on the U.S. Census of The Immigration Act of 1924 based 155. 156. S Syrian immigrants in the United States. First, the decision was ren- in the United States. First, the Syrian immigrants Empire in 1918. before the fall of the Ottoman dered three years Arabism that and existential shift toward Therefore, the political Empire came two decades took place after the fall of the Ottoman Christians fit within the statu- after Judge Woods ruled that Syrian 2013] the into immigration restricted categorically that legislation phobic years. only nine by Eden” “American WHITE BETWEEN MUSLIM AND immigration. stifled the eugenics movement,” umph of 59 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 31 8-OCT-14 15:03 ineligible for citizenship could not enter the United States.”). ineligible for citizenship could not enter the 1924 National Origin Quota Act brought to a peak the prominent role that the 1924 National Origin Quota Act brought at the time) had played all along the post- ‘science’ (or rather what passed as that prankish antics of race theory should not 1880s restriction movement . . . . The a distract from the fact that turn-of-the-century immigration restriction was part of larger project of designing society that had been achieved through modern physics and biology into the realm of that had been achieved through modern physics and biology into the realm human affairs, and thus perversely realizing the ‘absolute perfection of the human race’ . . . .”). possible by “judges in the prerequisite cases [who] were unable to in the prerequisite cases [who] possible by “judges definition of Whiteness.” develop a freestanding for immigrants from the Arab World proved increasingly difficult increasingly Arab World proved from the for immigrants of 1924. Immigration Act passage of the after the to accomplish what Naturalization Era judges could not, which was Naturalization Era judges could to accomplish what the composition definition of whiteness and to restore the statutory form. to its more narrow European of the nation’s citizenry cluded immigration from the Levant, home of the vast majority of of the vast the Levant, home from cluded immigration the Arab World. immigrants from 1890. The Syrian population skyrocketed between 1890 and 1919, with the former 1890. The Syrian population skyrocketed of considerable migration from the Le- year being the chronological beginning in the Arab World residing in the United vant. The population of individuals born Syrian and Christian. Khalaf, States in 1890 was 1,126, and was overwhelmingly supra in the United States.” Cainkar, Syrians (including Lebanese) and Palestinians supra selected the paltry, pre-immigration other undesirable origin points, Congress the 1910 Census figures that boasted a boom 1890 Census numbers instead of the United States. considerably larger Syrian presence in 35559-nys_69-1 Sheet No. 36 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 36 35559-nys_69-1 35559-nys_69-1 Sheet No. 36 Side B 10/20/2014 11:50:05 162 33 Dow 209, were and , Helen SLAM 164 Conse- I UTURE imams 163 F 161 See, e.g. EW ECT IN N S ADICAL UILDING A : B : A R “Arab,” as a modern iden- “Arab,” note 32, at 185. “A group of the 160 MERICA supra A SSASSINS , narrowly established that Syrian established that narrowly was, indeed, a victory of Syrian American A This meant that George Dow and Dow that George meant This HE RABS IN 159 OURANI A , T in , EWIS note 32, at 220, 235. to be a victory for Arab Americans at large. However, to be a victory for Arab Americans at large. L was swayed by the eugenic conclusion that Syr- was swayed by the supra , decision did not impact Muslim, Druze, decision did not Dow v. United States ERNARD Dow note 36. Dow v. United States Dow v. United Dow Not Quite White decision assimilated into mainstream whiteness and adopted new into mainstream whiteness and adopted decision assimilated OURANI , 226 F. at 147. H See supra See Dow Dow v. United States Second, 161. 162. (4th. Cir. 1915). One commentator Dow v. United States, 226 F. 145, 147 159. Arab Natu- Christian petitioners in the first eight Therefore, the Syrian 160. 164. with followers in Lebanon, Syria, The Druze faith is an offshoot of Islam 163. claimed rhetoric of the court and the decisions this perspective neglects the anti-Muslim that came before it. settlers among them or the subsequent Christians, but not for the few Muslim a broader host of nations. Muslim immigrants that followed from Hatab Samhan, ralization Cases did not identify themselves as “Arab,” in its modern sense, when not identify themselves as “Arab,” in its ralization Cases did and after the Many of the Syrian settlers before they petitioned for citizenship. 60 of whiteness. definition tory NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 Judge Smith in Muslims. racially distinct from Arab ian Christians were v. United States Other Syrian Chris- include remnants of the old country. identities that did not was framed along the old modality of Arab identity, which tians identified with a considerable number of natural- common cultural and linguistic lines. However, of Arab identity that sprouted in the re- ized citizens adopted the modern mode the identities of the naturalized gion in the 1930s. Pan-Arabism “re-signified” of Arab Americanism soon after they Syrians, which ushered in a formative brand claimed citizenship. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 32 8-OCT-14 15:03 eligible for citizenship. law, and thus were white by Christians every Syrian immigrant who petitioned for citizenship before him before citizenship for petitioned who immigrant Syrian every pa- religious and regional to the themselves according identified rule. mandated by Ottoman rameters be established. had yet to out of Pan-Arabism, tity born faithful believed that al-Hakim was divine, and had not died but gone into occulta- faithful believed that al-Hakim was divine, on the Fatimid throne, they seceded tion. Refusing to recognize his successors some success in winning support among from the main body of the sect. They had of the Ismailis of Syria, where groups of them still survive, in the present-day states Syria, Lebanon, and Israel. One of the founders of the sect was a da’i of Central Asian origin called Muhammad ibn Isma’il al-Darazi. They are still known, after him, as Druzes.” B quently, the Jewish settlers from the Arab World, who continued to live in the the Arab World, who continued Jewish settlers from embodiments of the Intelligences which emanated from the One God, and main- embodiments of the Intelligences which to human beings, and had been finally tained that the One Himself was present (996–1021),embodied in the Fatimid Caliph al-Hakim who had disappeared from human sight but would return.” H Israel, and the Palestinian Territories. “The faith of the Druzes sprang from the Israel, and the Palestinian Territories. the Isma’ili idea that the teaching of Hamza ibn ‘Ali; he carried further 217 (Michael W. Suleiman ed., 1999). (1968). 35559-nys_69-1 Sheet No. 36 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 36 35559-nys_69-1 35559-nys_69-1 Sheet No. 37 Side A 10/20/2014 11:50:05 165 167 did not undo the conflation of 48–49 (Knopf, 1952). IV. ROPHET CONVERGENCE P —Gibran Khalil Gibran, The Prophet HE , T However, competing modalities of identity, which However, competing IBRAN 166 BETWEEN ARABISM AND INTEREST G Dow v. United States AHLIL Third, the fall of the Ottoman Empire and the shifting political Empire and fall of the Ottoman Third, the Fourth, 165. state of Lebanon moved Leba- For instance, the creation of the modern 166. Many naturalized Syrian Americans identified with Arabism as a political 167. K “How long are the Cross and the Crescent to remain apart “How long are the Cross and the before the eyes of God?” nese citizens and settlers in the United States to re-identity as Lebanese Americans, nese citizens and settlers in the United States and Syrians and Palestinians to follow suit. and secular movement, and accordingly adopted it to reframe their identities. However, the courts were still gripped by a disoriented view of Arab identity and held Syrian Christians to be a distinct race of people that fit within the statutory definition of whiteness, while Arab Muslims did not. Pan-Arabism subsequently galvanized many settlers and naturalized galvanized many settlers Pan-Arabism subsequently national lines, States across religious and citizens in the United identity in the embrace of modern brand of Arab which led to their United States. 2013] citi- naturalized of becoming the prospect without States United be naturalized to first Arabs that the to note It is important zens. eu- judges, who leveraged by presiding considered “Arabs” were not WHITE BETWEEN MUSLIM AND by law, were white that Syrians Christians to resolve genic science from Arab region distinct minority in the result, an insular and as a Muslims. court’s formation Arab World, in part, undid the landscape in the of independent identity. The birth of a distinct Syrian-American 61 to realign and Syria moved many immigrants states in Lebanon they came from. line with the nation-states that their identities in \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 33 8-OCT-14 15:03 encompassed full-fledged assimilation into whiteness, nation-state assimilation into whiteness, encompassed full-fledged Americans identi- Arabism, splintered how Arab identification, and Century. fied during the early Twentieth Arab with Muslim identity, which judges continually redeployed to Arab with Muslim identity, which from accessing citizenship. The restrict Arab Muslim immigrants judges saw Muslim immigrants following section illustrates how formed the core of the ani- from the Arab World, whose religion the Naturalization Era, as un- mus toward such immigrants during desirable, antagonistic, and inassimilable. 35559-nys_69-1 Sheet No. 37 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 37 35559-nys_69-1 35559-nys_69-1 Sheet No. 37 Side B 10/20/2014 11:50:05 note al-Hoda supra , The spreading IASPORA D 169 MERICAN “As the manifesto of the First A Id. YRIAN S 170 ARLY E , twenty-seven years passed before an- passed before years , twenty-seven note 33. THNICITY IN THE supra , E note 36. Dow v. United States v. United Dow HOUERRI ACE AND 168 See supra Despite these shifts in the ways immigrants from the Levant in the ways immigrants from Despite these shifts alternative to the re- Pan-Arabism introduced a postcolonial After 169. 170. R 168. C A. Arab American Identity Arabism and Its Impact on Formative other petitioner from the Arab World brought a petition for citizen- a petition brought World the Arab from petitioner other and political volatility by considerable span was marked ship. This the fall World War I and which included: the Arab World, reform in of Euro- period lands; the subsequent rule over Arab of Ottoman of inde- the emergence War II and and World pean colonialism; the Most critically, in the region. nation states pendent existential move- Pan-Arabism as a political and development of reconfigured how between 1915 and 1942, which ment took shape identities moving the region framed their Arab immigrants from forward. latter end of the Arab identity, courts during the perceived their under- remained wedded to the entrenched Naturalization Era the same. This and Muslim identity as one and standing of Arab involving Muslim two naturalization hearings section will examine judges continued the Arab World to illustrate how immigrants from although the with Muslim identity. In addition, to conflate Arab much of the naturalized Syrian emergence of Pan-Arabism led their identities as Arab American, Christian community to reframe a view of Arab identity that per- the courts continued to project Syrian Christians from the Arab ceived Muslim immigrants and World as racially distinct. in the Arab World. The philoso- gional and religious factionalism during the 1940s, inspired a new phy, which reached its highpoint throughout the region and mode of Arab identity that resonated United States. among the growing Diaspora in the 62 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 34 8-OCT-14 15:03 “motif of transformation” toward Arabism was most ripe among Syr- “motif of transformation” toward who generally infused this revital- ian settlers in the United States, their newfound status as not simply ized brand of Arab identity with Americans, but Arab Americans. 2, at 95. “The motif of transformation was a recurring one in the writings of Syrian 2, at 95. “The motif of transformation was immigrants. It was captured visually in a full-page advertisement placed in [a Syrian American newspaper] by the Moshy Brothers in New York . . . [The author of the article] argued . . . that emigrants were responsible for the reformist awakening . . . in Syria and cited their efforts at the Arab Congress in Paris as proof of their commitment to the struggle for change.” 35559-nys_69-1 Sheet No. 37 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 37 35559-nys_69-1 35559-nys_69-1 Sheet No. 38 Side A 10/20/2014 11:50:05 , Id. as a 174 awlad 25, 26–27 (Michael W. Suleiman ed., Michigan, particularly the 175 UTURE F sowed the seeds for a fledgling Arab a fledgling for the seeds sowed EW N However, Muslim immigrants were also Muslim immigrants However, note 33, at 82. note 139, at 8. 171 supra , Attachment and Identity: The Palestinian Community of Detroit UILDING A supra note 15, at 15. , : B supra at 79–80. 173 Ahmed Hassan, 48 F. Supp. 843, 845 (E.D. Mich. 1942). HOUERRI Despite the reformed brand of secular Arab identity Despite the reformed brand of , Again, the rise of Pan-Arabism in the Arab World in the in the Arab rise of Pan-Arabism Again, the C MERICA Dow v. United States v. United Dow OTOMURA AFF 176 A 172 In re See id. See B. Muslim Immigrants American Citizenship Barred to Arab However, the expansion of modern Pan-Arab identity However, the expansion The American citizenship afforded to Syrian Christians by the Christians Syrian to afforded citizenship American The The judicial construction of Arab identity that prevailed in the The judicial construction of Arab 175. 176. May Seikaly, 171. 172. M 174. 173. N RABS IN Even if they were unaccustomed to identifying themselves as unaccustomed to identifying Even if they were to their in fact, clung tenaciously “Arabs” those immigrants, proudly ac- Muslims, and Druze alike Arabness. Christians, are all Arab cultural roots . . . “We knowledged common Arab (children or sons of Arabs),” they characteristically re- or sons of Arabs),” they characteristically Arab (children in an Arab who encountered them sponded to anyone gathering. A in Arab Congress claimed, the entire Arab nation was ‘spread across the world.’”Arab Congress claimed, the entire Arab at 99. 2013] in ruling WHITE BETWEEN MUSLIM AND 63 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 35 8-OCT-14 15:03 metropolitan Detroit area, was rapidly becoming a hub for the Arab metropolitan Detroit area, was rapidly Diaspora. 1930s united Arab immigrants from across religions and national religions and from across Arab immigrants 1930s united identity: common banner of modern Arab lines under the American community. American commu- Arab American the burgeoning participants in important in status of “citizens the liminal though they occupied nity even waiting.” foreign and domestic phenomenon did not erode the judicial con- phenomenon did not erode foreign and domestic the courts, which conflated Arabs struction of Arab identity within Christians. The last of the two and Muslims while excluding Syrian that despite modern Arab- Arab Naturalization hearings illustrates diaspora in the United States, ism’s resonance with the growing as Muslims and dis-identified judges still identified Arabs exclusively citizenship as whites by law, as Syrian Christians, who could access Arabs. was still firmly in place in 1942, first eight Arab Naturalization Cases region petitioned for U.S. citizen- when the first Muslim from the Yemen, filed his citizenship appli- ship. Ahmed Hassan, a native of cation in a Michigan court. 1999) (“Detroit was the destination of many because it offered the largest concen- tration of ethnic Arabs, providing family and friends and a familiar way of life.”). 35559-nys_69-1 Sheet No. 38 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 38 35559-nys_69-1 35559-nys_69-1 Sheet No. 38 Side B 10/20/2014 11:50:05 proves that Dow v. United Hassan Furthermore, Judge 178 180 Tuttle’s geographic orientation of “Arabia” ex- Tuttle’s geographic 177 179 , and he echoed the baseline that Syrian Christians , and he echoed , 48 F. Supp. at 845. . also vividly illustrates the gulf between Judge Tuttle and also vividly illustrates the gulf between illustrates that the Orientalist construction of Arab illustrates that the Orientalist . Hassan See id Id Id. Hassan holding that Syrian Christians fit within the statutory defini- Christians fit within the statutory holding that Syrian Hassan Tuttle’s understanding of Arab identity conformed to the views of Arab identity conformed Tuttle’s understanding Hassan 177. 178. 179. 180. It cannot be expected that as a class [Arabs] would readily in- would readily as a class [Arabs] be expected that It cannot civili- into our and be assimilated with our population termarry to of these peoples of immigration small amount zation. The more- fact. Arabia, evidence of that States is in itself the United to the or even contiguous to Europe immediately over, is not Mediterranean. Arab Muslim identity still clashed with the prevailing judicial con- Arab Muslim identity still clashed ception of whiteness in 1942. the proliferating community of Arabs in the metropolitan Detroit the proliferating community of and concentrated popu- area, which became the most conspicuous importantly, lation of Arabs in the 1930s. Most 64 Arab the from citizens naturalized and immigrants on by taken that, reasoned Tuttle Judge World, NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 cases that pre- over the eight naturalization of the judges presiding ceded from Arab Muslims. were a people distinct \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 36 8-OCT-14 15:03 cluded the Levant, a sad irony given that the Levant was not only cluded the Levant, a sad irony given of Arab Muslims, but also the home to a considerable population founded. very place where Pan-Arabism was in 1942, only ten years before identity was still deeply entrenched Act. The ruling exemplifies the dissolution of the Naturalization blinded judges from taking how the disorientation of Arab identity political events in the Arab World into consideration transformative the fact that Pan-Arabism that reshaped Arab identity. Despite and naturalized Arab Americans shifted how both Arab immigrants continued to perceive Arab were identified, naturalization judges identity in fixed and arcane terms. States they were part of (due to eugenic conclusions that tion of whiteness the white race). Tuttle removed the Levant from what he felt to be the geographic the Levant from what he felt to Tuttle removed the World, seemingly because of makeup of the Arab 35559-nys_69-1 Sheet No. 38 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 38 35559-nys_69-1 35559-nys_69-1 Sheet No. 39 Side A 10/20/2014 11:50:05 , Wyzanski Hassan This praise, however, 182 , although marking a critical , although marking Ex parte Mohriez Unlike Judge Tuttle in demonstrates how the failure to recognize mod- to recognize how the failure demonstrates 181 note 1, at 7 (“[O]rientalism depends for its strategy on this Mohriez, 54 F. Supp. 941, 942 (D. Mass. 1944). supra is a watershed case that not only granted citizenship to that not only granted citizenship is a watershed case , Hassan AID Ex parte C. Immigrants Muslim Against the Restriction Reversing , Mohammed Mohriez, a native of Saudi Arabia, came a native of Saudi Arabia, , Mohammed Mohriez, While Mohriez 181. 182. S As every schoolboy knows, the Arabs have at various times in- As every schoolboy knows, the Arabs the Mediterranean, been habited parts of Europe, lived along and been assimilated cultur- contiguous to European nations . The names of Avicenna and ally and otherwise, by them . . . and medicine, the population Averroes, the sciences of algebra Sicily, the very words of the and the architecture of Spain and would have reminded the English language, remind us as they and interaction of Arabic and Founding Fathers of the action . . . . [T]he Arab people non-Arabic elements of our culture by which the traditions of stand as one of the chief channels demonstrated fluency of the political changes taking place in the demonstrated fluency of the political ern Arab identity extended the Naturalization Era cases’ rationale Era cases’ the Naturalization identity extended ern Arab of even the recognition immigration, Century into mid-Twentieth a Muslim of citizenship to the extension Arab identity and modern of Arab conflation reorient the judicial did not quite petitioner with Muslim identity. crossroads with regard to extending naturalization eligibility to regard to extending naturalization crossroads with not disrupt the from the Arab World, did Arab Muslim immigrants Muslim identity. quo of conflation of Arab and ideological status an Arab Muslim, but also reflects a moment when the judicial orien- but also reflects a moment when an Arab Muslim, Two years after identity was turned on its head. tation toward Arab Hassan 13, 1944 seeking to District Court on April before the Massachusetts that Mohriez was an American citizen. By ruling be naturalized as Wyzanksi lifted the for citizenship, Judge Charles white and eligible from the Arab World from acces- bar restricting Muslim immigrants sing citizenship. flexible positional superiority, which puts the Westerner in a whole series of possi- ble relationships with the Orient without ever losing him the relative upper hand.”). 2013] WHITE BETWEEN MUSLIM AND 65 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 37 8-OCT-14 15:03 Arab World. Moreover, Wyzanski praised Arab Muslims in a fashion Arab World. Moreover, Wyzanski Era. unprecedented in the Naturalization did not challenge, much less undo, Orientalist baselines, but did not challenge, much less and the judges presiding over rather, redeployed them. Like Tuttle involving Christian petitioners, the set of Arab Naturalization Cases by a view of Arab identity that Wyzanski’s opinion is still informed conflated it with Muslim identity: 35559-nys_69-1 Sheet No. 39 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 39 35559-nys_69-1 35559-nys_69-1 Sheet No. 39 Side B 10/20/2014 11:50:05 reaf- Hassan set the prece- established that is cited by schol- While he shifted to While Mohriez Mohriez , and the Arab Naturali- 184 Mohriez , Hassan Hassan 183 Therefore, although Therefore, although 185 . , 54 F. Supp. at 942. Mohriez See id. See id. Mohriez departs from the analysis in Despite Wyzanski’s holding that Mohamed Mohriez fit the stat- Mohriez fit the that Mohamed Wyzanski’s holding Despite Decided only two years after Wyzanksi was the first Naturalization Era judge to rule that an Wyzanksi was the first Naturalization The domestic impact of the ruling in The domestic impact 183. 184. 185. white Europe, especially the ancient Greek traditions, have traditions, Greek ancient the especially Europe, white present. into the carried been Hassan and Mohriez are both Muslim (at least by name). What Hassan and Mohriez are both Muslim not just their faith community makes their cases noteworthy is when an Arab Muslim is but the short span of time between and when an Arab Muslim is considered nonwhite (Hassan) officially considered white (Mohriez). It is this abrupt 66 NYU ANNUAL SURVEY OF AMERICAN LAW his for citizenship, and was eligible of whiteness utory definition that was of Arab identity on a construction rested entirely rationale [Vol. 69:29 monolithic. and religiously fixed, arcane, \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 38 8-OCT-14 15:03 firmed that Muslim identity was inassimilable within American firmed that Muslim identity was citizenship? dent that a Muslim immigrant from the Arab World fit within the immigrant from the Arab World dent that a Muslim not retroactively of whiteness, the decision did statutory decision as Arabs, or formally ac- recognize naturalized Syrian Christians The courts still viewed both as knowledge them as Arab Americans. about a segregated view of Arab separate racial groups, bringing the gradually galvanizing mode American identity that clashed with Pan-Arabism. of Arab identity brought forth by definition of whiteness. Yet, Arab Muslim fit within the statutory long-standing conflation that Wyzanksi did not repudiate the terms. This raises a ques- framed Arab and Muslim as co-extensive only two years after tion: What brought about this shift highlight Arab identity in positive terms, Wyzanski did not desert Wyzanski did in positive terms, Arab identity highlight the nine decisions of Arab identity that steered the disoriented view before Arab immigrants, Christians, and Muslims alike, met the statutory Christians, and Muslims alike, Arab immigrants, as American citi- and could be naturalized definition of whiteness the prevailing eu- the decision did not challenge zens. However, group distinct Syrian Christians were a racial genic baseline that from Arab Muslims. ars as evidence of the arbitrary nature of procedural rulings during ars as evidence of the arbitrary nature only partially explains why the Naturalization Era. This position Mohriez zation Cases decided before it. Moustafa Bayoumi notes that, zation Cases decided before it. Moustafa 35559-nys_69-1 Sheet No. 39 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 39 35559-nys_69-1 35559-nys_69-1 Sheet No. 40 Side A 10/20/2014 11:50:05 might . 267, 283 EV Haney Lo- R Mohriez 187 ENTENNIAL C EW were the product of “in- were the L.J. 817, 839 (2000). , 6 CR: N Mohriez ALE 188 and , 109 Y note 112, at 13. Racing Religion from a purely domestic lens, absent knowl- from a purely domestic lens, absent supra Hassan Performing Whiteness: Naturalization Litigation and the Con- Performing Whiteness: Naturalization Litigation , note 153, at 179 (“In so far as the Nationality Act of , respectively. OPEZ supra L Mohriez , ANEY Mohriez H and 186 , and formal whiteness to Arab Muslim immigrants. Read- , and formal whiteness to Arab Muslim ACOBSON Cf. and 189 Bayoumi, Tehranian and Haney Lopez effectively expose how and Haney Lopez effectively Bayoumi, Tehranian John Tehranian echoes Bayoumi, arguing that the conflicting Bayoumi, arguing echoes John Tehranian Hassan 186. Moustafa Bayoumi, 189. J 188. 187. John Tehranian, Mohriez shift . . . [that] illustrates not just the capricious nature of racial nature capricious just the not illustrates . . . [that] shift American contemporary to which depth also the but formation always creating rather than race creates race, politics politics. ing formulated with the primary aim of be seen as a judicial declaration Arabia and the Arab World at advancing U.S. interests in Saudi large. these clashing rulings are, in large part, the result of a hodgepodge are, in large part, the result these clashing rulings However, fac- employed by naturalization judges. of methodologies most specifically, judicial determinations, tors outside of arbitrary to the petitioner helped deliver citizenship “self-interest leverage” in geopolitical developments in a edge of the broader regional and an incomplete examination of postcolonial Arab World, renders the ruling in these two cases. Assessed more broadly, 2013] WHITE BETWEEN MUSLIM AND rendered in decisions 67 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 39 8-OCT-14 15:03 1940 is still open to interpretation, it is highly desirable that it should be inter- preted so as to promote friendlier relations between the United States and other nations and so as to fulfill the promise that we shall treat all men as created equal.”). struction of Racial Identity in America ternal contradictions and dadaistic logic that find Arabs to qualify that find Arabs dadaistic logic and ternal contradictions situations and nonwhite in others.” as white in some pez also identifies a theory of racial ideology that could describe the a theory of racial ideology that pez also identifies out of the distinct in the two cases as borne conflicting decisions and Wyzanski in adopted by the Judges Tuttle racial methodologies Hassan (2006). 35559-nys_69-1 Sheet No. 40 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 40 35559-nys_69-1 35559-nys_69-1 Sheet No. 40 Side B 10/20/2014 11:50:05 Has- IDDLE 190 M MERICA IN THE , the United States’ : A sounded a superficial alarm ANTASY F Mohriez AND Brown v. Board of Education Brown v. Board of , V. : NATURALIZATION OR : NATURALIZATION AITH , F OWER , at 409–10 (2007) (“By the early 1920’s, accelerated , P did not genuinely advance the lives of Arab Muslim did not genuinely advance the lives of Brown v. Board of Education Brown v. Board of NATURAL RESOURCES? NATURAL REN 192 did not materially alter the reality of segregated schools in did not materially alter the reality of segregated RESENT Mohriez P B. O Indeed, Wyzanski may well have affirmed the ruling Indeed, Wyzanski may well have Brown Ahmed Hassan, 48 F. Supp. 843 (E.D. Mich. 1942). This decision Ahmed Hassan, 48 F. Supp. 843 (E.D. —Amicus the U.S. Department of Justice, Brief from EX PARTE MOHRIEZ EX PARTE ICHAEL TO THE if not for the development of American interests in Saudi if not for the development of American In re Mohriez. Geopolitical factors as well as industrialization set a new tem- as well as industrialization set Geopolitical factors Europe’s stranglehold on Middle Eastern oil spurred Herbert Europe’s stranglehold on Middle Ten years before Ten years before American foreign policy interests in Saudi Arabia, and the American foreign policy interests 191 , 1776 190. Curiae at 6, Brown v. Board of Brief for the United States as Amicus 191. 192. M . Hassan “The United States is trying to prove to the people of the to the people to prove States is trying “The United most civilized and is the most . that a free democracy world . . by man.” yet devised secure government AST industrialization, the mass production of automobiles, and electrification of house- holds had propelled the demands for petroleum in the United States well beyond its production capacity.”). san postwar foreign policy designs in the Arab World reflected a range policy designs in the Arab World postwar foreign the ruling in were potentially out of step with of interests that E Hoover—then Secretary of Commerce—to convene a consortium Education, 347 U.S. 483 (1954). 68 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 40 8-OCT-14 15:03 plate for engaging the Arab World in a manner that eroded the the Arab World in a manner plate for engaging Together, these as threats to American interests. notion of Arabs that contrib- both material and ideological factors interests formed had shaped the of the presumptions that uted to a reassessment earlier approach to Arab naturalization. backdrop for Wyzanski’s rul- Arab World at large, set an important ing in to Muslim natives of the Arab World that whiteness and citizenship were attaina- to Muslim natives of the Arab World that ble. However, as in political and economic in- Arabia, and the United States’ broader in the United States’ sociopoliti- terests in the region. A key factor was the increased demand for oil. cal engagement with the region search for the natural resource, Industrialization fueled the global and oil companies into the which ultimately led U.S. speculators Arabian Peninsula. not only in flux, but could be manipu- exposed how the courts’ “racial logic” was elite. lated to serve the interests of the ruling the United States, immigrants during, or after, the Naturalization Era. immigrants during, or after, the Naturalization 35559-nys_69-1 Sheet No. 40 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 40 35559-nys_69-1 35559-nys_69-1 Sheet No. 41 Side A 10/20/2014 11:50:05 . EV This This and the . L. R 197 193 TAN , 41 S offered a strategic Mohriez Four years later, in 1935, Four years 199 194 , http://www.saudiaramco.com/en/ COM . , http://www.sharia101.org/resources/Proph This was miles away from the future miles away from This was RAMCO Extending citizenship to Muslim immi- Extending citizenship to Muslim 198 195 HARIA A 200 , S Desegregation as a Cold War Imperative , 93 Harv. L. Rev. 518, 524 (“In many countries, where AUDI S , , Dainese v. Hale, 91 U.S. 13, 15 (1875); Ross v. McIntyre, 140 During the same year that Hoover’s consortium of that Hoover’s the same year During Prophet Muhammad Honored by U.S. Supreme Court as One of the Greatest Prophet Muhammad Honored by U.S. Supreme Derrick A. Bell, Jr., Comment, Brown v. Board of Education at 415. at 410. at 413–14. strategy proved effective and formed the first Hoover’s Ibn Saud, the King of Saudi Arabia, was skeptical of European coun- Ibn Saud, the King of Saudi Arabia, was 196 Contact Us Id. Id. Id. See, e.g. See Id. Id. The shifting backdrop of American interests was also ideologi- of American interests was The shifting backdrop In line with renewed post-World War II foreign policy interests In line with renewed post-World 195. 196. 193. 194. 198. 199. Mary L. Dudziak, 197. See 200. tries and Britain in particular, which, in combination with the United States’ offer tries and Britain in particular, which, in the competing bidder’s consultant a thou- to pay the Saudis in gold and to provide bilateral agreement with the U.S. consor- sand-pound annuity, led to a binding tium. step toward accessing the Arab oil for which a rapidly industrializing United States step toward accessing the Arab oil for which thirsted. cal. In 1944, the year Mohriez came to court seeking naturalization, year Mohriez came to court seeking cal. In 1944, the than an abstract to many Americans, much more “democracy was, . . . . [P]art of the Americans were dying for idea. It was a principle its incompatibility democracy they fought for was meaning of the and anti-Semitism.” with Nazi racism 2013] companies. petroleum leading seven States’ United of the WHITE BETWEEN MUSLIM AND 69 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 41 8-OCT-14 15:03 American oil companies and the Saudi government formed and the Saudi government American oil companies by the U.S. Su- Mohammed was honored Aramco, the Prophet the world.” “one of the greatest lawgivers in preme Court as headquarters of the Arabian American Oil Company (Aramco) in Oil Company (Aramco) American of the Arabian headquarters Dhahran. phenomenal reserves of oil were found in Dammam, in the Eastern Dammam, in the oil were found in reserves of phenomenal of Saudi Arabia. Province et%20honored%20by%20Supreme%20Court.pdf (last visited Apr. 4, 2014) for in- et%20honored%20by%20Supreme%20Court.pdf honoring the Prophet Mohammed. formation about the Supreme Court plaque U.S. 453 (1891). consortium broke the European monopoly and secured a pathway and secured monopoly European broke the consortium Arabian oil. Saudi toward accessing the beginning U.S. courts maligned up through was the very figure Century. of the Twentieth springboard toward advancing American interests in the Arab springboard toward advancing declaration that would res- World, which benefitted from a juridical and people. onate among the region’s leaders of Arab Muslim immigrants in the Arab World, the naturalization enhancing the United States’ pro- promoted the broader project of file in the Arab World. home/top-footer/contact-us.html (last visited Apr. 4, 2013). home/top-footer/contact-us.html (last 61, 68 (1989). Lawgivers of the World in 1935 Interest-Convergence Dilemma 35559-nys_69-1 Sheet No. 41 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 41 35559-nys_69-1 35559-nys_69-1 Sheet No. 41 Side B 10/20/2014 11:50:05 Judge decision 205 was vital to Mohriez note 200. the supra Hassan 204 was an exception, not the rule. Bell, Sarah Gualtieri contends . 5, 12 n.31 (1976)). EV 207 with Racial Remediation: An Historical Perspec- call for integration was framed call for integration Mohriez in light of increasing American L. R 203 ’s AME D Hassan Thus, Wyzanski’s ruling was part of a Thus, Wyzanski’s Brown Wyzanksi’s plea for better relations be- plea for better Wyzanksi’s OTRE 202 206 201 , 54 F. Supp. at 943 note 199, at 62–63(“U.S. government officials realized , 52 N note 200. In short, supra supra Mohriez, 54 F. Supp. 941, 943 (D. Mass. 1944). Mohriez, 54 F. Supp. 941, 943 (D. Mass. , 54 F. Supp. at 943. Bell, at 493. . Echoing Derrick A. Bell, Jr.’s observations that policy . Echoing Derrick A. Bell, Jr.’s , to in- of whiteness expansion and an unprecedented Ex parte Id. Compare Mohriez Mohriez See decision must be viewed in light of the value to whites fol- decision must be viewed in light In the same way that In the same way The sudden shift from 201. Dudziak, 202. 203. Brown v. Board of Education, 347 U.S. 483 (1954). 204. 205. 206. 207. Hassan Mohriez U.S. prestige and leadership have been damaged by the fact of U.S. segregation, it U.S. prestige and leadership have been basic American principle that ‘all men are will come as a timely reassertion of the created equal.’”) (citing Derrick A. Bell, Jr., tive on Current Conditions 70 from nations hailing those particularly World, the Arab from grants attractive a more States the United made value, considerable with NYU ANNUAL SURVEY align these countries could of with whom governments superpower OF AMERICAN LAW Cold War. during the [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 42 8-OCT-14 15:03 investments in the region suggests that greater interests were at play investments in the region suggests in broader governmental project of “promoting friendlier relations” project of “promoting friendlier broader governmental had significant value to the with states that, like Saudi Arabia, United States during the war. be understood without some shifts benefitting non-whites “cannot . . value to whites in policymaking consideration of the decision’s . and political advances at home positions able to see the economic of segregation,” the and abroad that would follow abandonment Mohriez against the naturalization of Mus- lowing abandonment of the bar lim immigrants from the Arab World. tween the United States and other nations suggests that a reversal suggests that and other nations United States tween the of inde- ties with newly facilitate stronger Muslims, would clude Arab pendent Arab countries. as an endorsement of American democracy, as an endorsement can be understood as a judicial means to “provide immediate credi- as a judicial means to “provide can be understood to win the struggle with Communist countries bility to America’s peoples.” of emerging third world hearts and minds Wyzanski rationalized that overruling Wyzanski rationalized “promot[ing] friendlier relations between the United States and relations between the “promot[ing] friendlier we shall treat all so as to fulfill the promise that other nations and equal.” men as created that their ability to sell democracy in the Third World was seriously hampered by that their ability to sell democracy in the continuing racial injustice at home.”). The decision must be contextualized with the shifting geopolitical events at the The decision must be contextualized with the shifting geopolitical events at 35559-nys_69-1 Sheet No. 41 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 41 35559-nys_69-1 35559-nys_69-1 Sheet No. 42 Side A 10/20/2014 11:50:05 See note ATINO MERICA L A ONTEMPO- supra , C HICANO USLIMS OF 208 IASPORA , 25 C M D ILEMMAS OF HE T : D in , MERICAN LIEN A on account of both their on account of A , and still today, Arab Ameri- , and still today, 211 209 YRIAN S symbolically extended formal citizenship ARLY Mohriez E American Foreign Policy in the Middle East and Its ITIZEN AND THE Mohriez CONCLUSION C HE Off-White in an Age of White Supremacy: Mexican Elites and Off-White in an Age of White Supremacy: Mexican decision promised to extend. Nearly seventy decision promised to extend. Nearly , T has yet to deliver the privileges associated with has yet to deliver the privileges ruling is best understood as a judicial compro- ruling is best understood THNICITY IN THE E OSNIAK 30–31 is often a gap between possession of (2006) (“[T]here Mohriez B extended Arab Muslims a conditional or “honorary” conditional a Muslims Arab extended Mohriez Mohriez ACE AND INDA Arab Muslims did not enjoy the substantive benefits of did not enjoy the substantive Arab Muslims RARY Yvonne Yazbeck Haddad, EMBERSHIP 210 Mohriez The “honorary whiteness” Muslim immigrants gained as a re- Muslim immigrants gained The “honorary whiteness” 208. R 210. L 211. Sixty-seven years after 209. Laura B. Gomez, M “[O], my greatest enemy and benefactor in the whole world is “[O], my greatest enemy and benefactor America, in whose iron loins I this dumb-hearted mother, this 217 (Yvonne Yazbeck Haddad ed., 1991). Arab American identity, more than any 217 (Yvonne Yazbeck Haddad ed., 1991). Arab American identity, more than other segment of the populace, is acutely sensitive to political events that take place outside of the U.S.’s borders and foreign policy responses to them. time, and the United States’ claim as global power with broadened interests in the time, and the United States’ claim as global Arab World. L.R. 9, 11 (2005). sult of the 2013]that have may ruling Wyzanski’s that reflects in part, that, whiteness immi- belief that Muslim over a genuine interests placed policy WHITE BETWEEN MUSLIM AND of the statutory definition fit within the Arab World grants from of Chris- in the march were cast as players so long as “they whiteness were Muslim Arabs In other words, civilization. tian, Western In this way was effaced. religious identity white when their deemed the nation but whites,’ those accepted into they became ‘honorary it.” that they did not quite deserve under suspicion 71 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 43 8-OCT-14 15:03 whiteness the years later, whiteness to Arab American Muslims. ethnic and religious identity and the compounded animus both at- identity and the compounded ethnic and religious tract. [formal] citizenship status and the enjoyment or performance of citizenship in [formal] citizenship status and the enjoyment substantive terms.”). mise that traded the formal assimilation of Arab Muslims for the the formal assimilation of Arab mise that traded in the broader U.S. interests in Saudi Arabia, and advancement of after Arab World. Immediately or, in the the status of “second class citizens,” can Muslims occupy Gomez, “off whites,” words of Laura generally across the Oriental divide, Arab American Muslims have yet to enjoy the real fruits across the Oriental divide, Arab American incidents and turbulent events in the Arab of that promise. However, international the imposed identity of Arab citizens. World still have an immense impact on Impact on the Identity of Arab Muslims in the United States 2, at 160–61. Century New Mexico the Rights of Indians and Blacks in Nineteenth 35559-nys_69-1 Sheet No. 42 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 42 35559-nys_69-1 35559-nys_69-1 Sheet No. 42 Side B 10/20/2014 11:50:05 ’ 212 ended that debate, 124–25 (Melville House Publ’g HALID K Dow v. United States OOK OF B —Ameen of Khalid Rihani, The Book HE , T IHANI R MEEN In addition to providing a legal history of the origins of Arab In addition to providing a legal Arab identity was inextricably linked to Muslim identity during linked to Muslim was inextricably Arab identity Cases over the ten Arab Naturalization The judges presiding whiteness and naturali- Christianity was the lone portal toward 212. A have been spiritually conceived . . . . But alas, our spiritual alas, our . . But . . conceived been spiritually have children.” own a cat, her like devours, mother 72 NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 44 8-OCT-14 15:03 narrowly holding that Syrian Christians—a group distinct from Arabs—could Era judges continued be naturalized. Naturalization of Arab as synonymous with to apply a distorted understanding when American interests in Saudi Muslim identity even after 1944, World occasioned the naturaliza- Arabia and the transitioning Arab tion of the first Arab Muslim immigrant. highlights the entrenched legal American identity, this Article also the Naturalization Era. Although a religious identity, the main- identity, Although a religious Era. the Naturalization political propa- baselines combined with streaming of Orientalist Islam into an Eighteenth Century converted ganda in the late the Barbary in the image of Arabs. Following ethno-racial identity menace hostile to States positioned Arabs as a Wars, the United the Orientalist dis- and values, which aligned with American society Naturalization this position. The Arab course that established was framed as in 1909, illustrate how Arab identity Cases, beginning and invariably hostile. exclusively Muslim Early judicial deci- toward Arab identity. adopted this orientation and Muslims Islam as hostile to the United States sions positioned an orientation that established inassimilable with American society, of Muslim immigrants from a de facto bar against the naturalization the Arab World and elsewhere. the Naturalization Era. The first zation for Arab immigrants during were overwhelmingly Chris- waves of immigrants from the region toward Arab identity created a tian, and the judicial orientation who were forced to prove in court burden for Christian petitioners, by the first eight of the that they were not Muslim. As demonstrated the possibility of whiteness Arab Naturalization Cases, however, did not guarantee citizen- through its association with Christianity ship to Christian Syrians. 2012) (1911). The Book of Khalid is considered the first Arab American novel. Rihani was a contemporary of the iconic Lebanese poet, Khalil Gibran and collabo- rated with him as part of the “Pen League.” The collective was comprised of Arab writers who migrated to America. 35559-nys_69-1 Sheet No. 42 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 42 35559-nys_69-1 35559-nys_69-1 Sheet No. 43 Side A 10/20/2014 11:50:05 . NN ROM 215 9/11: F broke the , 58 N.Y.U. A FTER A Mohriez EFORE AND Race, Civil Rights, and Immigra- B L.J. 1, 12 (2001). SIAN and communities perceived to perceived and communities Civil Liberties and the Otherization of Arab MERICANS 1259, 1264 (2004). narrowly extended citizenship to narrowly extended 8 A 114, 117–18 Jamal & Nadine (Amaney A 214 EV ” , RAB A . L. R A Rage Shared by Law: Post-September 11 Racial Vio- UBJECTS S ALIF Symbolism Under Siege: Japanese American Redress and the Muslims, ACE AND R 213 ISIBLE , 92 C in V , Dow v. United States Susan M. Akram & Kevin R. Johnson, Muneer I. Ahmad, ITIZENS TO See See . L. 295 (2002); Amaney Jamal, C M Saito’s disentanglement of Arab from Muslim identity is the Saito’s disentanglement of Arab analysis,” which The second step is adopting an “intersectional Much of the legal scholarship focusing on Arab and Muslim scholarship focusing on Arab Much of the legal . A 213. 215. Natsu Taylor Saito, 214. Arab Americans and Muslims have been “raced” as “terrorists”: Arab Americans and Muslims have threatening. Although Arabs foreign, disloyal, and imminently and claim many different trace their roots to the Middle East come from all over the religious backgrounds, and Muslims blurred and negative images world . . . these distinctions are often attributed to both. about either Arabs or Muslims are URV NVISIBLE I first step toward undoing the conflation of both. first step toward undoing the conflation of Arab American identity closely considers the distinct markers 2013] close today. A Arabs against applied tropes most salient of the roots dis- how reveals Cases vividly Naturalization Arab of the reading stifle the executed to that were judicially and ideas torted images WHITE BETWEEN MUSLIM AND ago are redeployed nearly a century of immigrants naturalization Arabs, today against 73 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 45 8-OCT-14 15:03 and Muslim Americans be Arab or Muslim. Furthermore, this Article contends that religion contends that this Article or Muslim. Furthermore, be Arab deem an immigrant- a judge would determined whether generally to extend natu- the Arab World to be “white” and petitioner from traces the earliest citizen. This Article also ralization as an American Arab Americans as the present-day classification of legal catalysts of white by law. view that they based on the judicial (and eugenic) Syrian Christians on account of their religion, and were non-Arabs Jointly, these de- citizenship to Arab Muslims. barrier that restricted formal designa- legal foundation for the prevailing cisions form the as white. tion of Arab Americans distortion of Arab identity rooted Americans has fallen victim to the attempt to articulate post-9/11 vic- in the Naturalization Era. In an many legal commentators have re- timization and marginalization, of Arab and Muslim Americans inforced the Orientalist conflation situated victims and villains. Natsu and caricatured them as similarly Saito aptly observes that, “Racing” of Arab Americans as “Terrorists tion Law After September 11, 2001: The Targeting of Arabs and Muslims tion Law After September 11, 2001: The Targeting Naber eds., 2008). lence as Crimes of Passion S 35559-nys_69-1 Sheet No. 43 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 43 35559-nys_69-1 35559-nys_69-1 Sheet No. 43 Side B 10/20/2014 11:50:05 F- UB- il- A S . 1575 217 ACE AND LACK EV R ISIBLE : B in V , TREAMS http://www.migra S ITIZENS TO EW , 49 UCLA L. R C , N . 1241, 1282–83 (1991). IX EV available at F NVISIBLE . L. R I Discrimination and Identity Formation note 24, at 295. ICHAEL TAN ROM note 213, at 341. supra nearly one-hundred years before & M 4–5 (2011), , 43 S supra ABE While this brand of intersectional While this brand note 38, at 4–5. C 9/11: F C TATES Mapping the Margins: Intersectionality, Identity Polit- Mapping the Margins: Intersectionality, Identity 218 S 220 M FTER The Citizen and the Terrorist supra Arab Americans today are more heteroge- are more today Americans Arab , A naturalized NITED 216 this Article offers a much needed preface to this Article offers RISTEN and unveil that the legal construction of Arab and unveil that the legal construction U 219 , K 221 EAULIEU EFORE AND APPS , Leti Volpp, Akram & Johnson, & B B C SI A Kimberle Crenshaw, ANDY RICAN JECTS See, e.g. See See also See IGRATION TO THE MERICANS 222 The Arab Naturalization Cases are the very legal grounds from Cases are the very legal The Arab Naturalization M 305 (Amaney Jamal & Nadine Naber eds., 2008), for a discussion of the dis- 305 (Amaney Jamal & Nadine Naber eds., A 220. 216. 222. Reem Bahdi provides a particularly effective definition of profiling, 217. R 219. See generally Jen’nan Ghazal Read, 218. 221. RAB tinct experiences of Arab American Christian and Muslim citizens following 9/11. tinct experiences of Arab American Christian A which today’s misrepresentations and misunderstandings of Arab and misunderstandings which today’s misrepresentations preface, these emanate. Without a historical and Muslim identity older dynamics may appear to be new, and contemporary issues understood as a the Naturalization Era may be that characterized Arab Naturaliza- of a distant past. Yet, reading the distinct chapter the post-9/11 profiling of Arab tion Cases in conjunction with and “suspected terrorists” should Americans as “foreign,” “disloyal,” reorient that view 74 differences situated and variations historical at neatly looks and its boundaries. within NYU ANNUAL SURVEY OF AMERICAN LAW [Vol. 69:29 \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 46 8-OCT-14 15:03 9/11. American identity was scholarship is rare, scholarship that developing body of post-9/11 the robust and still between, and rearticulate the relationship has failed to disentangle, identity. Arab and Muslim neous than ever before. Recent immigrant waves from Iraq, Yemen, waves from Iraq, Recent immigrant ever before. neous than by some accounts) Arabs and Somalia (considered Morocco, ics, and Violence Against Women of Color which “involves separating a subsection of the population from the larger whole on which “involves separating a subsection of the population from the larger whole the the basis of specific criteria that purportedly correlates to risk and subjecting or subgroup to special scrutiny for the purposes of preventing violence, crime, some other undesirable activity.” Bahdi, tionpolicy.org/pubs/africanmigrationus.pdf. (2002). lustrate how phenotype, socioeconomic status, religion, and state status, religion, socioeconomic how phenotype, lustrate of the marginalization state, intensify with their home relations resources—includ- access to important facilitate greater some, and ing whiteness—for others. in a Post-9/11 Era: A Comparison of Muslim and Christian Arab Americans in a Post-9/11 Era: A Comparison of Muslim 35559-nys_69-1 Sheet No. 43 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 43 35559-nys_69-1 35559-nys_69-1 Sheet No. 44 Side A 10/20/2014 11:50:05 ruled white. and thus a Mudarri to be white citizen. resided in Oregon. Court found Ellis to be white and a citizen. non-white. citizenship and ruled non- white. statutory definition of whiteness. 223 CaseHolding Petitioner’s Identity & Shahid, 205 F. 812 Zahle, Lebanon. Maronite from Dow, 211 F. 486 A Maronite (Christian) from TABLE OF CASES: ARAB NATURALIZATION CASES ARAB NATURALIZATION OF CASES: TABLE Najour, 174 F. 735 (1909),Najour, 174 F. 735 Lebanese Maronite that resided 465Mudarri, 176 F. in Syrian Christian born (1910),Ellis, 179 F. 1002 A Christian (Maronite) from Dow, 213 F. 355 (1914), Dow denied citizenship for 223. No court transcripts available. 2013] WHITE BETWEEN MUSLIM AND In re the NorthernCircuit Court for District Georgia. in Georgia, Costa George 75 In re D.(1910), Circuit Court, Massachusetts. Najour granted citizenship and Damascus who settled in In re District Court, D. Oregon. near Beirut (Lebanon) who Court found Massachusetts. Ex Parte (1913), District Court, E.D.South Carolina. Court denied South Carolina Ex Parte (1914), District Court, E.D.South Carolina. (Lebanon) who settled Batroun and found him Shahid petition, In re District Court, E.D. SouthCarolina.Dow v. United States, 226 F. in South Carolina. Dow denied second time by South Carolina 145 (1915), Circuit Court ofAppeals, Fourth Circuit. Dow wins appeal in 4th District rule that Court, establishing Syrian Christians fit within the Court. \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 47 8-OCT-14 15:03 George Shishim v. UnitedGeorge Los AngelesStates, (1909) Court. Superior Los Christian resident of Syrian white by law. Angeles ruled 35559-nys_69-1 Sheet No. 44 Side A 10/20/2014 11:50:05 Side A 10/20/2014 Sheet No. 44 35559-nys_69-1 35559-nys_69-1 Sheet No. 44 Side B 10/20/2014 11:50:05 whiteness. Decision was driven whiteness. Decision by interest to promote, between “[f]riendlier relations other nations.” the U.S . . . and Mohriez, 54 F. Supp.Mohriez, Muslim from Saudi Arabia A Ahmed Hassan, 48 F. Hassan, Ahmed Yemen denied Native from 76 In re District 843 (1942), Supp. NYU ANNUAL SURVEY Michigan, SouthernCourt, E.D. OF AMERICAN LAWof his Muslim white on account Division. [Vol. 69:29 be non- citizenship, found to Ex Parte D. District Court, 941 (1944), Massachusetts. within the court found to be identity. definition of the statutory \\jciprod01\productn\N\NYS\69-1\NYS107.txt unknown Seq: 48 8-OCT-14 15:03 35559-nys_69-1 Sheet No. 44 Side B 10/20/2014 11:50:05 Side B 10/20/2014 Sheet No. 44 35559-nys_69-1