An Asian-Indian Case Study

At the American and Caribbean Law Conference held at Ocho Rios, Jamaica on 23rd July 2004, Professor Leonard M. Baynes was among many speakers examining the emerging trends in international and comparative law. Examining the US experience on the fluidity of race he raised an interesting feature of the social construction of races. With his permission an edited version of his presentation is reproduced for this column: The US Supreme Court has acknowledged that no common understanding or definition of race exists. In fact, it has found race to be “sociopolitical rather than biological.” Many social scientists have also concluded that race is merely a “social construct,” meaning that race is often been used for political purposes to stereotype different groups. The Southeast Asian experience in the United States is an important case study in how racial construction is fluid and subject to change depending on the societal circumstances.

When Asian Indians first immigrated to the US in the early 1900s, white workers believed that they were taking “white” jobs by working too diligently for too low a wage. In 1907, a mob of 500 whites in Bellingham, Washington rioted, shouting,  “Drive out the Hindus,” burning down buildings, and assaulting several Asian Indians.” In 1908, the San Francisco Call captioned photos of six Asian immigrants as “The Hindu Invasion.” In 1910, US Congressional immigration commission found that Asian Indians were “universally regarded as the least desirable race of immigrants thus far admitted to the United States.” At that time, questions arose whether Section 318 of the naturalisation statute barred Asian Indians from American citizenship. Section 318 provided that “[t]he provisions of this title, shall apply to aliens being free white persons, and to aliens of African nativity, and to persons of African descent.” In US v. Bhagat Singh Thind, Mr. Thind applied for US citizenship and described himself as a “high-caste Hindu, of full Indian blood born at Amritsar, Punjab, India.” The U.S. Supreme Court stated:

It may be true that the blond Scandinavian and the brown Hindu have a common ancestor in the dim reaches of antiquity, but the average man knows perfectly well that there are unmistakable and profound differences between them today; and it is not impossible, if that common ancestor could be materialised in the flesh, we should discover that he was himself sufficiently differentiated from both of his descendants to preclude his racial classification with either. The Court held that Asian Indians were not members of the white race and could not become US citizens. As a consequence, they could not own US land and their American wives could also be stripped of their citizenship and property. By 1965, Congress eliminated the provisions prohibiting immigration and naturalisation of individuals immigrating from Southeast Asia. In 1965, US News and World Report first applied the Asian American model minority stereotype to Chinese Americans; it has now expanded to include all Asian Americans. For instance, Newsweek magazine published an article entitled: “American Masala; They changed the way we eat, dress, work and play. South asians come here from many places and they succeed blending east and West.” In this article, the authors note that South Asians “are making their mark everywhere from Hollywood to Wall Street.” The median income for Asian Indian American families is approximately $60,000 per year as compared to the national average of $38,885. In fact, there are more Asian Indian medical doctors than African American ones.

The model minority stereotype resonates as a modern Horatio Alger story illustrating the “American Dream,” i.e., anyone can be successful if they just work hard enough. The model minority stereotype lulls Asian Americans into believing that they are the best of American minority groups, but cautions them not to forget that they are still members of the minority. Professor Siva Vaidhyanathan has written: Being a model minority can pay some big dividends. If you play it right, people won’t fear you. They’ll assume that you’re honest. They won’t accuse you of shoplifting, will even gladly let you play in the field of commerce. Of course, some people might call you ‘Onigger’ once in a while, and the occasional skinhead might beat you up. But most of your life will be fine. That is, it will be fine as long as you don’t get too comfortable or too ambitious. The model minority stereotype implicitly tells African Americans that they should behave more like Asian Americans, and they too can overcome race discrimination. Members of the majority often implicitly use the model minority stereotype to put down African Americans.

But even though Asian Indians may be stereotyped as “model minorities,”courts still have found that they are not white. In 1994, in Sanhu v. Lockheed Missiles and Space Co., Mr. Sanhu, a Punjabi native of India, sued his employer Lockheed for race discrimination. Lockheed argued that Sanhu was Caucasian and therefore was unqualified to bring a race-based discrimination action. The appellate court opinion found that, although Asian Indians were technically Caucasian, they are nonwhite. The Court relied on the fact that Asian Indians were categorised as nonwhite by the 1980 census. The Court held that Sanhu was “subject to discriminatory animus based on his membership in a group which is perceived as distinct when measured against other Lockheed employees, and which is not based on his birthplace alone, is sufficient to make out a cognizable claim for racial discrimination.”

Since September 11th, things in the US have changed. At that time, nineteen Arab men attacked the US mainland. President Bush instructed all Americans to be vigilant for any suspicious individuals, which has led to increased racial profiling of those who “look” Arab. For example, Asian Indian filmmaker Nisha Ganatra stated that since September 11th, people think: “I’m about to blow up a building.”
 Berta Cruz, an Indian-born Canadian citizen, enroute from India to Canada stopped at O’Hare Airport in Chicago. The Immigration and Naturalisation Service accused her of using a fake Canadian passport and stamped each page of her passport with “expedite removal.” Ms. Cruz was deported to India, her family in Canada was unaware of her deportation, and her employer terminated her employment. It took four days for her status as a Canadian citizen to be confirmed.

Samuythka Verma, an Asian Indian Actress, was suspected of being a terrorist because of her ethnicity. Ms. Verma was detained for five hours at LaGuardia Airport after another passenger on the flight told a flight attendant that Ms. Verma, members of her family, and her travelling performance troupe were acting suspicious: they were laughing and talking excitedly while looking out the window. Noted Canadian Author Rohinton Mistry, of Asian Indian ancestry, was “extremely unhappy” about the way he was treated in the United States. He stated: “As a person of colour he was stopped repeatedly and rudely stopped at each airport along the way-to the point where the humiliation [had] become unbearable.” Mr. Mistry cancelled the remainder of his book tour. The Canadian government warned its citizens of Middle Eastern and Muslim backgrounds to carefully consider whether they wanted to visit the United States.

Hate crimes have also extended to those that Americans believe are Arab Americans. Balbir Singh Sodhi, a Sikh, was shot to death outside of his gasoline station in Mesa, Arizona. The Asian Indian history is an important case study; it clearly demonstrates the fluidity of racial construction and racial stereotypes. In one-hundred years, Asian Indians in the US have been racially constructed as non-white foreigners, model minorities, and now possible Arab terrorists. Each of these stereotypes was not based of the reality but was socially constructed.

Leonard M Baynes Professor of Law, St. John?s University School of Law, Jamaica, NY.
the Law Association of Trinidad and Tobago.