Hastings Constitutional Law Quarterly


Ayushi Neogi


This note seeks to understand the place of a South Asian American in a country that considers itself bi-racial. The note analyzes the racial ambiguity of the South Asian in two major historical contexts. First, it provides an overview of the legal history of South Asian migration, the first “wave” of which occurred from 1885 to 1923. It analyzes the various exclusionary laws (both state and federal) that set a framework for how to view and treat the common Indian migrant. It further looks at California and the Pacific North- west’s deliberate, xenophobic acts during this time period, such as the Bellingham Riots and the Hindu-German Conspiracy Trial of 1918. This portion of the note concludes with a comparison of the Supreme Court’s analysis in two anticanonical cases, United States v. Bhagat Singh Thind and Plessy v. Ferguson. Bhagat Singh Thind’s blanket ban on an Indian resident ever being classified as a free white person for the purpose of naturalization was a direct result of the long-standing tensions between American workers, Congress, and the unwanted Indian migrant. This exclusionary ruling set the stage for cautious, deliberate immigration reform less than fifty years later. The second portion of the note analyzes the second “wave” of South Asian migration after the 1965 Immigration and Nationality Act (INA). It seeks to answer the question of how South Asian Americans can seek constitutional and political legitimacy after Brown v. Board of Education. It also examines how the federal statute has provided access to only a certain type of immigrant, therefore heavily contributing to the “model minority” stereotype without ever being discriminatory on its face. The statute created a modern South Asian America, giving South Asians access to whiteness and its capitalistic benefits while denying them true and equal protection under the law. The nature of the INA reduced South Asians to a limbo “other” category that is neither black nor white. The note then analyzes modern South Asians, such as Dinesh D’Souza, Nikki Haley, and South Asian American activist groups, and how they have sought to create a politically legitimate space for themselves in the space of the “other.” Finally, this note concludes by calling for a deeper South Asian American political engagement; one that recognizes the xenophobic and exclusionary history of Indian migration instead of simply benefitting from white privilege and using it to promote conservative rhetoric.