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Who Gets to Be Indian? The Not Black Enough to be a Citizen Case!

Updated: Jul 13


How a 1938 Court Case, the Census, and the Petition for the Misclassified Indian Expose the War on Black-Indigenous Identity




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23 F. Supp. 774 (1938)

In re CRUZ.

No. 229223.

District Court, E. D. New York.


June 22, 1938.

BYERS, District Judge.


This application for naturalization embodies an affidavit containing the following:


"My mother is half African and half Indian and my father is a full blooded Indian. I learned this information from them when I was a small child. I believe that my father's ancestors were all full blooded Indians."


Decision was reserved at the hearing before the Court because of the language of R.S. § 2169 (Title 8 U.S.C. § 359, 8 U.S.C.A. § 359) reading in part as follows:


"§ 359. Racial limitation of naturalization; free white persons and Africans. 775 The provisions of this chapter shall apply to aliens being free white persons, and to aliens of African nativity and to persons of African descent ."


The question for decision is whether the petitioner is a person of African descent, within the contemplation of the statute.


Seemingly the subject has not been passed upon in any reported case. The statute was evidently intended to qualify for naturalization all persons born in Africa and the descendants of such (including Negroes), and the inquiry seems to be whether a person who is one-quarter Negro is of "African descent". Stated differently: Did Congress intend a broader classification with reference to persons of African descent than in designating "free white persons"? As to the latter, see Morrison v. California, 291 U.S. 82, 54 S. Ct. 281, 78 L. Ed. 664. The following language occurs in the opinion, at page 86, 54 S.Ct. at page 283:


"The privilege of naturalization is denied to all who are not white (unless the applicants are of African nativity or African descent); and men are not white if the strain of colored blood in them is a half or a quarter, or, not improbably, even less, the governing test always (United States v. Bhagat Thind [261 U.S. 204, 214, 43 S. Ct. 338, 67 L.Ed. 616]) being that of common understanding." (Citing cases.)


It is necessary therefore to ascertain whether there is a common understanding as to what is meant by the expression "African descent".


An interesting discussion will be found in an article entitled "Race Distinctions in American Law" (43 American Law Review 29). At page 39, it is said:

"Some of the states have set down arbitrary definitions of persons of color and Negroes and mulattoes *.

"Picking these definitions, many of them, out of the midst of other statutes, I find that Alabama, Kentucky, Maryland, Mississippi, North Carolina, Tennessee and Texas define one as a person of color who is descended from a Negro to the third generation inclusive, though one ancestor in each generation may have been white. Florida, Georgia, Indiana, Minnesota, Missouri and South Carolina declare that one is a person of color who has as much as one-eighth Negro blood; Nebraska and Oregon say that one must have as much as one-fourth Negro blood in order to be classed with that race. Virginia and Michigan apparently draw the line similarly. In Virginia, a marriage between a white man and a woman who is of less than one-fourth Negro blood, `though it be only a drop less', is legal. * In 1867, Michigan, which at the time limited the suffrage to `white male citizens', held that all persons should be considered white who had less than one-fourth of African blood."


The article was written in 1909, and it is probable that some of the citations have become obsolete, but the quotation will suffice to demonstrate a lack of such common understanding as would tend to lay bare the legislative purpose as embodied in the statute above quoted.


It is to be remembered that, if this petitioner were of one-quarter white blood and three-quarters Indian, he could not be admitted to citizenship as a white person. See: In re Camille, C.C., 6 F. 256; In re Knight, D.C., 171 F. 299; In re Lampitoe, D.C., 232 F. 382; In re Young, D.C., 198 F. 715; In re Fisher, D.C., 21 F.2d 1007.


It would therefore seem entirely incongruous to reason that the words "African descent" should be construed to be less exacting in denoting eligibility for naturalization, than the term "white persons".


The opinion therefore is presently held that, in order for a petitioner to qualify under the statute, his African descent must be shown to be at least an affirmative quantity, and not a neutral thing as in the case of the half blood, or a negative one as in the case of the one-quarter blood.


For these reasons, the petition must be denied.







“My mother is half African and half Indian and my father is a full-blooded Indian…”

In re Benedito Cruz, 1938



In 1938, a man named Cruz stood before a federal judge in New York. He sought naturalization as a U.S. citizen, even though he was born in the United States and identified himself as a descendant of American Indian peoples. His application was denied not because he was a foreigner, not because he was undocumented, but because the court ruled he wasn’t “African enough” to qualify under the narrow racial restrictions of U.S. immigration law. And even worse, the judge refused to acknowledge his American Indian identity at all.


Let that sink in...


 A man who was full-blooded American Indian on his father’s side was denied citizenship after the 1924 Indian Citizenship Act because he didn’t fit into the government’s narrow racial boxes.




📜 The Law Said Indians Were Citizens. The Courts Said, "Not You."


In 1924, Congress passed the Indian Citizenship Act, granting U.S. citizenship to all American Indians born in the United States.[¹] But even after this law was passed, citizenship remained conditional. People like Cruz — who came from Urban, detribalized, or mixed Indigenous families — were still forced to apply for naturalization as if they were immigrants.

In In re Cruz, the judge completely ignored Cruz's Indian identity. Instead, the court focused on whether he was “of African descent” under R.S. § 2169, a law that limited naturalization to “free white persons” and “persons of African descent.”[²] Because Cruz was only one-quarter African by blood, the judge ruled that he was not “Black enough” to qualify — and since he didn’t qualify as white either, he was denied citizenship altogether.

Meanwhile, the fact that he was more than three quarters Indigenous?


 Irrelevant. Invisible.


 Legally erased.


The Deeper System: Racial Classification as a Weapon

Cruz’s story is not an anomaly; it is a blueprint for how the U.S. has historically used racial classification to control who counts as Native, Black, or American at all.

From the 1700s to the 20th century, American Indians were systematically reclassified on government records as:

  • “Negro”

  • “Colored”

  • “Mulatto”

  • “Free Person of Color”

This wasn't random, it was intentional. The goal was to:

  • Deny land rights

  • Break tribal continuity

  • Exclude Indigenous peoples from treaty protections

  • And ultimately, erase Black-Indigenous identity altogether

This legal erasure is what scholars call "paper genocide."



🧭 The Census and the New Frontier of Racial Erasure


Fast forward to today. The U.S. Census still uses outdated and colonial standards for racial identity. In order to identify as American Indian or Alaska Native, individuals must list a “tribal affiliation.”[³]

On the surface, this might seem harmless. But in reality, it continues the same exclusionary logic used in In re Cruz:

  • If you’re detribalized, you don’t count.

  • If your family was classified as “colored” or “Black”, you don’t count.

  • If you are an Urban Indian without “proof” of enrollment, you don’t count.

Even if your ancestors were here before the Mayflower.




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⚖️ 1. Naturalization Act of 1790: First Legal Use of “White”

"…any alien, being a free white person who shall have resided within the limits and under the jurisdiction of the United States for a term of two years..." — Naturalization Act of 1790, 1 Stat. 103

This was the first U.S. federal law regulating citizenship. The phrase “free white person” was never defined by skin tone, but by exclusion: not Black, not Native, not Asian, not mixed.

👉 It assumed "white" meant of unmixed European ancestry — in other words, racially pure.



Cruz (1938) — Implied Purity Standard

The very case you’re studying reflects this.

Judge Byers wrote:

“Men are not white if the strain of colored blood in them is a half or a quarter, or, not improbably, even less...” — citing Bhagat Singh Thind

This means any measurable non-European ancestry disqualified someone from whiteness, reinforcing whiteness as pure lineage — not cultural assimilation or national loyalty.


United States v. Bhagat Singh Thind (1923)

This Supreme Court case directly tackled the definition of “white.”

Thind, an Indian man from Punjab, argued that he was Caucasian under anthropological definitions and therefore eligible for citizenship as a "free white person."


The Supreme Court ruled:

“The words ‘free white persons’... are words of common speech, to be interpreted in accordance with the understanding of the common man... The average man knows perfectly well that there are unmistakable and profound differences between himself and the Hindu.”

“It may be true that the blond Scandinavian and the brown Hindu have a common ancestor, but the average man knows they are not the same.”

The ruling rejected scientific race theory in favor of “common understanding”, and that understanding equated "white" with European and racial purity, free of mixing.


🔍 Translation: You can’t be white if you’re mixed or non-European, even if you’re scientifically “Caucasian.”



Ozawa v. United States (1922)

Takao Ozawa, a Japanese-American, also argued he was “white” in color and culture. The Court rejected him, stating:

“The words ‘white person’ are synonymous with persons of the Caucasian race, only as that race is understood in the popular and not the scientific sense.”

“He is clearly not a Caucasian, and therefore, not a free white person within the meaning of the statute.”

Again, “white” was interpreted as pure European ancestry, not just appearance or even anthropological race.


🪶 The Petition for the Misclassified Indian: A Movement for Truth

That’s why the Urban Indian Heritage Society launched the Petition for the Misclassified Indian and is advocating for a removal of “tribal affiliation” language from the Census and OMB racial standards.[⁴]

This petition:

  • Demands recognition of detribalized and misclassified American Indian descendants

  • Pushes for self-identification as a sovereign act

  • Challenges the federal monopoly on identity

It's not just a policy issue, it's about restoring dignity and truth to millions of Black-Indigenous people whose identity was stolen by ink and paper.


✊🏾 Why This Fight Matters Now

In the age of data-driven policy, if you're not counted, you don’t exist. If the Census refuses to count Urban, Black, and misclassified Indigenous people without proof of tribal enrollment, then we are watching the continuation of In re Cruz 86 years later.

We are witnessing a modern form of racial gatekeeping where:

  • The federal government decides what kind of Native you are allowed to be.

  • Colonial definitions of “tribe” and “blood quantum” override birthright and cultural identity.

  • And millions of Black-Indigenous descendants are told they don’t exist, again.

But this time, we’re pushing back.


🧨 Summary: Where “White = Pure” Appears Legally

Law / Case

Whiteness Defined As

Key Takeaway

Naturalization Act of 1790

“Free white persons”

Citizenship only for “pure” whites

Bhagat Singh Thind (1923)

"Common understanding" of white

Rejected even Caucasians of Indian descent

Ozawa v. U.S. (1922)

Excludes non-Europeans

White ≠ color, it’s ancestry

State Racial Laws

No trace of Black ancestry

One-drop rule enforced purity

In re Cruz (1938)

1/4 African = not Black enough; 3/4 Indian = not Indian enough

Legal systems erased mixed identity by purity logic


📣 Call to Action

  • Support the Urban Indian Heritage Society and their petition.

  • Demands that the Office of Management and Budget (OMB) and Census Bureau remove tribal affiliation as a requirement for Native identity has been met and changed .

  • Educate others on how legal decisions like In re Cruz still shape who gets counted, recognized, and protected today.

Because the truth is:

You don’t need a federal stamp to be Indigenous.


📝 SOURCES:

[¹] Indian Citizenship Act of 1924, Public Law 68-175. https://www.ourdocuments.gov/doc.php?flash=false&doc=95

[²] Revised Statutes § 2169 (8 U.S.C. § 359), governing racial eligibility for naturalization.

[³] U.S. Census Bureau, Race and Ethnicity Questions. https://www.census.gov

[⁴] Urban Indian Heritage Society, Petition for the Misclassified Indian. https://urbanindianheritage.org





Bonus

The Real Ish Breakdown of the Case : 


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🔍 What was this case about?

A man named Cruz applied to become a U.S. citizen through naturalization in 1938. On his application, he explained that:

  • His mother was half African and half Indian, and

  • His father was fully American Indian.

The court had to decide:

“Does Cruz count as someone of ‘African descent’  enough to qualify for naturalization under U.S. immigration law at the time?”


⚖️ The Law in Question

Back then, U.S. naturalization law only allowed certain races to become citizens:

  • “Free white persons”

  • “Aliens of African nativity”

  • “Persons of African descent”

So the big question was:


 🧐 Was Cruz’s partial African ancestry enough to qualify him under the “African descent” part of the law?


📚 The Judge’s Reasoning

The judge went through several arguments:

  1. There's no clear rule about how much African ancestry counts.

    • Some states had arbitrary rules:

      • For example, Alabama and Kentucky said that having a Black ancestor three generations back still made you “a person of color.”

      • Others said 1/8 or 1/4 African ancestry was the limit.

    • These definitions were inconsistent and contradictory, which made it hard to apply a national standard.

  2. The judge referred to a Supreme Court case (United States v. Bhagat Singh Thind) that said:

    • Whether someone is considered “white” is based on common understanding not just science or percentages.

    • So for “African descent,” the same logic might apply: What do people commonly understand “African descent” to mean?

  3. The judge then made a comparison:

    • If someone who is 3/4 Native and 1/4 white can't qualify as white, then someone who is 3/4 Native and 1/4 Black shouldn’t automatically qualify as African.

That would be inconsistent.


🧑🏽‍⚖️ Final Ruling

The judge denied Cruz’s petition for naturalization. Why? Because his African ancestry was only one-quarter, and the judge decided that wasn’t enough to meet the law’s standard for “African descent.”

🔒 He was denied citizenship — not because he was Black, but because he wasn’t Black enough under that specific rule.


 Why This Matters (Especially for Urban Indians & Black Indigenous Peoples)

This case shows how:

  • Racial identity was legally policed in arbitrary, racist ways.

  • People with mixed African and Native ancestry often got excluded from both categories under racist immigration law.

  • The legal system weaponized racial "percentages" to deny rights and define who belonged.

It also exposes how:

  • Even when someone had African heritage, the court demanded a high "purity" standard  similar to how it defined "white."

This gatekeeping of race and citizenship was used to exclude non-white, non-European people from full American belonging.


💬 In Simple Terms:

Cruz said: “I’m part African, part Native  can I be a citizen?”


 The judge said: “Not unless you’re enough African. Being just 1/4 isn’t enough under the law. Denied.”



🔥 So, why wasn’t Cruz recognized as a citizen just for being  American Indian alone?

In 1938, the year this case was decided, not all American Indians were automatically considered U.S. citizens and even if they were, their rights were often ignored or denied through racial classification and legal loopholes.

Let’s break it down:

📜 1. Pre-1924: American Indians Were Not Automatically Citizens

  • Before 1924, Native Americans were seen as members of sovereign tribal nations so the U.S. government didn't consider them U.S. citizens unless:

    • They gave up tribal affiliation and land (via the Dawes Act or "civilized" lifestyle clauses),

    • Or they served in the military or had a special treaty provision.



🗳️ 2. The 1924 Indian Citizenship Act

  • In 1924, Congress passed the Indian Citizenship Act, which granted citizenship to all  Americans Indians born in the U.S..

BUT HERE’S THE CATCH:

  • Many Indigenous people were still denied full rights (like voting or owning land), especially at the state level.

And some federal courts (like in Cruz’s case) still treated Indigenous identity as insufficient or unrecognized if it wasn’t attached to a federally acknowledged tribe.


🤔 3. Cruz Had Mixed Ancestry: That Complicated Everything

Cruz told the court:

  • His mother was half African and half Indian.

  • His father was fully Indian.

But the court didn’t accept his Indigenous identity for two big reasons:

➤ A. He didn’t name a federally recognized tribe.

  • The court may have ignored or doubted his Indian ancestry because it wasn't connected to a formal, enrolled tribal nation.

Urban Indians and detribalized Native people were routinely denied identity rights because they weren’t “federally acknowledged.”


➤ B. The law he applied under wasn’t meant for Indigenous people.

  • Cruz applied for citizenship under a naturalization law (R.S. § 2169), which was designed for immigrants  and it only allowed “free white persons” and “persons of African descent.”

  • American Indian people were technically not immigrants  they were Indigenous to the land  but because Cruz wasn't automatically recognized as a citizen, he had to apply like an immigrant.

And under those racist immigration laws, he didn't fit neatly enough into either category.


🧨 So Why Was He Rejected?

The court rejected him as a person of African descent because he was “only one-quarter African.”

But at the same time, the system also didn’t recognize his Native American identity as enough for citizenship either even after 1924.

This shows a brutal truth:

Mixed Black and Indigenous people were often excluded from both identities under white-dominated systems.


💥 Bottom Line:

Cruz wasn’t recognized as a citizen because:

  • The court didn’t treat his Indigenous identity as valid or “sufficient.”

  • He didn’t fit their narrow and racist racial definitions of who could naturalize.

  • And this case reflects how Black-Indigenous people were erased and excluded from legal protections that others were granted more easily.


⚖️ If Cruz's case was after 1924, shouldn't he automatically have been a citizen as an American Indian?

Yes , on paper, the 1924 Indian Citizenship Act granted U.S. citizenship to all American Indians born in the United States.

So, by law, if Cruz was a full-blooded Indian on his father’s side and half on his mother’s side, and if he was born in the U.S., then he should have been a citizen automatically. No naturalization application necessary.

But the fact that he applied for naturalization  and the court accepted the application instead of rejecting it on the grounds that he was already a citizen  reveals a systemic failure and contradiction.





💥 So, Are American Indians Citizens or Not?

✅ Yes, legally:

  • Since the 1924 Indian Citizenship Act, all American Indians born in the U.S. are legally citizens.

❌ But in practice, it's conditional:

  • Only if they are part of a federally recognized tribe  or have documentation.

  • Urban Indians, Black Indians, or those not on reservations were — and often still are  treated with suspicion or ignored.

Citizenship was often denied, delayed, or disrespected by states, courts, and federal systems  especially when racial identity was mixed.



The Deeper Truth: THE REAL TALK

Cruz's case proves a hard fact:

✊🏽 American Indians were made citizens in 1924, but white-dominated institutions still had the power to define “who counts” as Indian and deny rights accordingly.

This was especially harsh for Black-Indigenous people, who were:

  • Too Indian to be Black under Jim Crow

  • Too Black to be Indian under racist tribal and federal laws

  • And excluded from whiteness entirely



 “Are American Indians citizens or not?”

Legally, yes. Politically and historically, only when convenient to white institutions.


Why the Petition is Instrumental:

1. It Challenges the Federal Gatekeeping of Identity

  • Right now, federal recognition and tribal enrollment act as tools of exclusion, not just recognition.

  • The Census asks people to list a federally recognized tribal affiliation, which automatically erases:

    • Urban Indians

    • Black-Indigenous descendants

    • Freedmen descendants

    • Detribalized families (due to removal, slavery, relocation, etc.)

🧨 By requiring tribal affiliation, the government continues a system where only state-sanctioned Native identities count.


2. It Corrects the Misclassification of Millions

  • For centuries, American Indians — especially those with African ancestry — were deliberately reclassified in records as:

    • "Free Persons of Color"

    • "Colored"

    • "Negro"

    • "Mulatto"

    • "Black"

  • This legal erasure destroyed tribal continuity on paper.

The Petition for the Misclassified Indian seeks to restore the birthright and paper trail of those wrongly classified.


🔍 This ties directly to cases like In re Cruz — where his Native identity was ignored, and he was judged only by his percentage of African ancestry.

3. It Gives Urban Indians a Path to Self-Identification

  • Census data shapes:

    • Federal funding

    • Policy decisions

    • Recognition of group needs

  • If Urban Indians cannot self-identify without being forced to “prove” a tribal affiliation, they become:

    • Statistically invisible

    • Politically disempowered

    • Historically erased

📣 Removing the tribal affiliation clause gives back the right to self-identify  a basic human right stolen through centuries of forced classification.


4. It Reclaims Identity as a Matter of Birthright, Not Bureaucracy

  • Many Black-Indigenous families descend from:

    • Southeastern tribes, removed or enslaved

    • Freedmen of the Five Civilized Tribes, later disenrolled

    • Mixed-race Native families forcibly detribalized

  • Their ancestry predates the U.S. government yet they're now forced to prove themselves to it.

🪶 The OMB language change disrupts that colonial logic and acknowledges:

You don’t need a federal stamp of approval to be Indigenous.

Removing “tribal affiliation” from the Census and advancing the Petition for the Misclassified Indian is vital because it:

  • Restores stolen identity

  • Rejects paper genocide

  • Empowers Urban Indians

  • Pushes back against racist laws like the one in Cruz’s case

Breaks the stranglehold of federal recognition as the only valid Indigenous identity






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