Monday, November 7, 2016

ASLH Report: “Women, ‘Aliens,’ and Citizenship"

[We are grateful to Elizabeth Katz, a Ph.D. Candidate in Harvard University’s History Department, for this excellent report. Her attendance at the ASLH was generously funded by the Canada Program within the Weatherhead Center for International Affairs at Harvard University.]

On October 28, it was my pleasure to attend the ASLH panel titled “Women, ‘Aliens,’ and Citizenship: Married Women’s Nationality Laws and Repatriation Campaigns in Europe and North America, 1920s-1950s.” Contributing to a theme that connected many of the conference’s panels—citizenship—the panelists offered a series of papers that examined how married women both lost and regained citizenship in three countries during the early- to mid-twentieth century. Philip Girard (York University) chaired the panel.

The first panelist was Elisa Camiscioli (SUNY Binghamton), who presented “Gendering French Nationality from the Napoleonic Code to the Eve of the Second World War.” By way of background, Elisa explained that under Napoleonic law, spouses had distinct but complementary roles. In short, the husband was the head of the household, and the wife owed obedience in exchange for protection. Under the doctrine of Republican Motherhood, women’s primary role was as mothers and educators of children. Married women were treated as perpetual minors under the law. For instance, they could not serve as witnesses in civil actions or travel without their husbands’ permission. And, central for purposes of this paper, jurists writing prior to WWI emphasized that both spouses must have the same nationality – the husband’s. When middle-class French feminists began fighting to free women from the subjugation of the Civil Code, they argued it was unjust to require women to abdicate their nationality after marrying a foreigner. Arguments in favor of making married women’s nationality independent of their husband’s gained salience after WWI in the face of widespread concern over French depopulation. (From 1900-1926, more than 190,000 French women became foreigners through marriage, and their children were therefore not French.) In 1927, efforts to change the nationality law were successful but on pronatalist rather than feminist terms. The new law allowed women to declare whether they were retaining French nationality at the time of marriage, and women who married before passage of the new law could apply to regain French citizenship (30,000 did). Related provisions were available for their children. The change was explicitly distinguished from other feminist critiques of the Civil Code, though. The 1927 law sought to increase the French population, rather than to increase women’s rights. This result reaffirmed gender complementarity and women’s role as mothers.

The second panelist was Brendan Shanahan (UC Berkeley), who presented: “Citizens without Rights: Marital Repatriation in the United States, 1940-1952.” Brendan opened his remarks with a gripping anecdote about an American woman who had never left the United States but lost her citizenship when she married a foreigner. While there is a rich historiography on women’s loss of citizenship due to marriage, Shanahan said, there has been less attention to naturalization and repatriation whereby women regained citizenship. When the Cable Act (1922) and an amendment to it (1931) repealed previous U.S. legislation that tied married women’s citizenship to their husbands’, these laws did not retroactively reinstate the citizenship of women who were already married to foreigners. Rather, these women had to petition in line with immigrants, and many did so. (Shanahan studied the records in few cities and extrapolated that 80,000-130,000 women sought reinstatement of American citizenship between 1923 and 1940). The vast majority of these women were approved, but federal officials and judges could prevent reinstatement using technicalities or for racist and sexist reasons. For instance, every woman rejected in San Antonio in the period he studied was of Mexican-American heritage. In 1940, Congress passed several immigration-related laws in quick succession that unintentionally created a hard deadline of the end of that year for married women who previously lost their citizenship to regain it. This left the INS in a strange position, as the agency did not want to focus its attention on middle-aged American-born women, many of whom did not even know they were not citizens. The INS decided that because of a slight ambiguity in the language of the repatriation law, they would interpret it to mean all women had been repatriated en masse but needed to take an oath in court to regain the rights of American citizenship (by which they meant voting but were unsure what else). In other words, the INS administratively created a new category: “citizens without the rights of citizenship.” The INS announced this decision to the New York Times and tried to spread the word to the public. Federal judges, however, were wary of the distinction between citizens with and without rights and rejected it (the issue never reached the U.S. Supreme Court). By the early 1950s, the INS retreated from this approach while formally maintaining that it was valid. Shanahan suggested that the American citizenship regime had acquired its modern form at this point, so a liminal status like “citizens without rights” could not be sustained.

The final panelist was Franca Iacovetta (University of Toronto), who presented: “‘In the case of a woman’ or ‘The headache’: Married Women’s Nationality and Canada’s Citizenship Act at Home and Abroad 1946-50.” Franca explained that the Canadian Citizenship Act of 1946 made women’s nationality independent of marriage, eliminating one of the final legal disabilities married women faced in Canada. It did not, however, automatically repatriate Canadian women who had married aliens before January 1, 1947. If these women wished to repatriate, they had to jump through bureaucratic hurdles. (By contrast, the similar 1948 British law did retroactively renationalize all women who lost British nationality through marriage.) Ottawa’s decision to exclude previously married women prompted, according to Franca, “a short-lived but revealing repatriation lobby.” The paper focused on the gender and racial politics of this lobbying effort. Many of the women who had lost Canadian citizenship through marriage were war brides who had married Allied soldiers based in Canada during WWII. In their letters and petitions following passage of the 1946 law, these women did not raise feminist or equal rights claims. Rather, they cast themselves as reputable and loyal Canadians. They traced long (white) lineages within Canada, emphasized male family members’ or their own war service, and described their roles as wives and as mothers of Canadian-born children. After significant media attention, in 1950, Parliament amended the law to remove the one-year residency requirement, but the women were still required to apply for citizenship. (Franca noted, too, that at this time Parliament confirmed a continuing distinction under the Indian Act between Canadian women who married Indigenous men and Canadian men who married Indigenous women; in the former scenario Canadian women received treaty status, and in the latter Indigenous women lost such status and the related rights.)

Audrey Macklin (University of Toronto) served as commentator. Audrey observed that one of the overarching themes in the panels was that nationality was emerging as a tool of self-identification imbued with meaning at the same time that it was being regulated by government and causing inevitable international impact. Audrey said another theme was toggling between two ideas of marital nationality at play: the idea that a woman’s nationality was relational and that she was governed by a man rather than directly by the state, and the idea a woman has an autonomous nationality and is disloyal by marrying a foreigner. Brendan’s and Franca’s papers were further linked in examining the role of bureaucracy in giving meaning to law, which raises interesting and salient questions about the relationship between lawmakers and those who administer it. Audrey also offered questions and comments about the significance of birthright citizenship, the relevance of whether a country is a settler society, the role of strategic alliances for feminist efforts, and the effect of militarized notions of citizenship.