In April 1929, an unremarkable man—a local entrepreneur and defendant in a minor lawsuit—entered the High Court of Nyasaland (contemporary Malawi) and made a remarkable gesture. The son of an Indian immigrant and an African woman, Suleman Abdul Karim declared himself a “non-native” and that he should consequently be tried as such. The lawsuit brought against him concerned the ownership of a Ford truck for which he had failed to complete payment. Approximately ten months earlier on June 28, 1928, Ernest Carr of Blantyre, Nyasaland—a local auctioneer and businessman who frequently ran advertisements in The Nyasaland Times during the 1920s—had sold the Ford to Karim with a written agreement that it would be paid for with £30 as a down payment, £20 on July 31, 1928, with the remaining £50 to be paid in monthly installments of £10 starting August 31, 1928.Footnote ¹ All told, this business transaction was intended to be resolved expeditiously, with its completion by the new year of 1929. However, the minor expectation that this contract had promised was not fulfilled. Two payments were made, an initial one on the day of sale for £30 and a second several months later on November 16, this time for £8. Karim defaulted on the remaining amount. Furthermore, he failed to make an insurance premium payment of £10 to the African Guarantee and Indemnity Co. Ltd., for which Carr was a local agent. Despite these defaults, Karim had not returned the Ford. Consequently, after several more months elapsed, a claim against Karim came before the High Court on April 11, 1929.Footnote ²

The adjudication of this case not only decided the fate of a Ford truck but also generated a broader official discussion regarding the legal status of persons of multiracial background in British Africa. This decade-long and ultimately inconclusive debate about how the categories of “native” and “non-native” were to be defined focused on whether a cultural definition or a definition based upon racial descent would apply. As in many legal stories regarding the adjudication of a person's identity, the details of the case itself appear superficial in retrospect, particularly against the backdrop of the larger issues it raised.Footnote ³ Briefly, Karim's decision to seek “non-native” status was a counterintuitive move on his part, rendering him more vulnerable to the prosecution's claim against him. Citing “native” status could have protected him under the guidelines set forth by the Credit Trade with Natives Ordinance of 1926, a law intended to protect African colonial subjects from forms of financial predation and exploitation through unfair lending practices, particularly by whites. Although there is no clear evidence, Karim probably decided to risk punishment as a means of maintaining good relations in a small business community, even if it meant a financial penalty in the short term. But his decision held longer-term implications. In the ruling handed down just over a week later on April 19, Judge Haythorne Reed noted that the defendant “does not wish to take the defense that he is a native” and that the court “must consider this.” Citing the credit trade ordinance, Judge Reed stated that “a native is defined as a native of Africa not being of European or Asiatic race or origin; accordingly… all others are non-natives.”Footnote ⁴ He therefore ruled that the defendant, because of his Indian father, held “non-native” status. “A person's race or origin does not depend on where he or she is born, just as being born in a manger does not make a person a cow, or a child of European parents being born in India or China is not therefore an Indian or a Chinaman,” Reed wrote to clarify his legal position. “Race depends on the blood in one's veins, and the words used ‘race or origin’ seem to have been chosen to include half-castes; otherwise I do not know why the word origin was used, or what sense I can give it additional to the word race.”Footnote ⁵ Karim was therefore deemed a “half-caste Indian… of Indian origin.”Footnote ⁶ Karim accepted the ruling and requested time to pay the debt off.Footnote ⁷

Although Karim exited the historical stage at this point, the Reed ruling on Carr v. Karim continued to have repercussions beyond the Nyasaland High Court, reaching British colonial administrations across Africa and eventually the Colonial Office itself in London. It served as an unanticipated catalyst for addressing questions of race, legal status, and legal uniformity in British colonial Africa. This article is consequently concerned with these challenges over legal status that persons of multiracial background presented to colonial states in British Africa. It argues that the complex issue of racial descent and legal identity was located not only in sovereign states such as France, Germany, or the United States, but that this question equally extended to colonial contexts as well. It makes this point by tracing a policy discussion sparked by the Reed ruling on racial origin and “non-native” status that took place over the next decade. This policy discussion encompassed not only exchanges among officials, but also political organizations founded by multiracial people that arose in the wake of the Reed ruling. Such groups sought to benefit from the possibility of acquiring “non-native” status that would ostensibly place them as equal to European settlers and apart, if not entirely above, African subjects. Yet, beyond this popular pressure, the broader predicament British administrations faced involved questions of more general political entitlement in the face of escalating trends of Western cultural assimilation, the transparency of state racism, and, ultimately, the potential dissolution of the “native” and “non-native” categories that underpinned colonial rule. Indeed, the interwar period proved to be a crucial time when colonial states sought to mitigate the political effects of World War I, particularly emergent forms of anti-colonial nationalism. The Carr v. Karim case consequently occurred at an opportune moment of political flux, reflecting the shifting political ground of racial and cultural interaction that had occurred under colonial rule up to that point, but equally pointing to the legal challenges and political possibilities in the foreseeable future.Footnote ⁸

Inevitably, this political situation also speaks to parallel conversations over racial identity and status under the law that modern states confronted elsewhere during the early twentieth century. It consequently generates the need to expand existing geographies and political realms that have defined research on this subject so far. But more important than expanding the scope of research is to understand the connections created within and among nation-states and empires, to recognize that formations of the modern racial state—whether in the United States, Europe, or Africa—were shaped by local circumstances and concerns as well as by broader understandings of racial difference and political entitlement current at the time. In sum, addressing the legal politics of racial identity demands both a panoramic attention to context in addition to a vertical grasp of the scale between individual states and day-to-day circumstances that made the issue pressing. The remaining sections of this article subsequently examine the meaning of this case and the history it produced by situating it vis-à-vis colonial state politics, examining the social and bureaucratic repercussions it had, and, finally, placing it within a broader context of negotiating racial descent and social membership in the modern world.Footnote ⁹

Racial States and Ethnic States: The Categorical Politics of Colonial State Formation in Africa

The question of race has become essential to analyses of modern state formation. David Theo Goldberg has captured the relevance of this theme succinctly, suggesting that the modern state has “always conceived of itself as racially configured.”Footnote ¹¹ Yet making this basic observation has resulted in neither conclusive nor reductive definitions of the state. Instead, it has heightened the complexity of state behavior, requiring scholars to disassemble modern states into component parts in order to locate the origins, influence, and pervasiveness of racism as a state practice. This agenda has resulted in two broad realms of interrelated research: first, a focus on law, citizenship, and social policy; and second, a view toward nationalism and the cultural bases of state structures and conduct. Rogers Brubaker and Anthony Marx, for example, have contended that citizenship plays a key role in setting the parameters of political inclusion and exclusion, noting factors of geographic origin, national descent, culture, and race as defining criteria for political membership in Western Europe, the Americas, and South Africa.Footnote ¹² On the other hand, race has separately been perceived as informing nationalist feelings of a “deep, horizontal comradeship” in Benedict Anderson's descriptive phrase, providing a “natural” basis for patriotism and other types of political devotion, often through a gendered, descent-oriented language of kinship toward a “motherland” or “fatherland.”Footnote ¹³ These parallel approaches to understanding the role of race and racism in state formation have mutually informed one another. Indeed, they reflect two ways in which states have typically been conceptualized—either as autonomous institutions of governance, separate from civil society, or as instruments of popular will. Such distinctions, of course, have overlapped in practice. But for our purposes here, these observations raise questions of application in colonial contexts, where states were neither entirely autonomous nor expressions of popular sentiment.Footnote ¹⁴

The argument of this section is that colonial states—specifically those found in British Africa, but by extension elsewhere—are variations of the modern racial state. This suggestion may initially appear self-evident. The idea that European colonialism and racism went hand in hand is not new. Indeed, Chatterjee's important questions raised in the epigraph capture a research intention on his part that contains specific implications for readdressing the role of imperialism in the formation of the modern racial state. Put simply, to understand the predicament of postcolonial states—their authoritarian qualities, their failure to revolutionize postcolonial societies, the question of their capacity to represent national communities—requires an appreciation of the role of colonialism in the formation of these states.Footnote ¹⁵ In Chatterjee's words, colonialism is not “something we have managed to put behind us” but is deeply implicated in the contemporary political problems intrinsic to many postcolonial countries. But more than that, the “rule of colonial difference,” he forcefully argues, was one part of “a common strategy” among states regarding the employment of “modern forms of disciplinary power.” In short, understanding the role of colonial states in the history of modern state formation generally is crucial, with racial difference being a key aspect of “colonial difference.”Footnote ¹⁶ Indeed, Hannah Arendt's earlier case for considering the role of imperialism in the rise of European totalitarianism indicates the longevity of this perspective and argument.Footnote ¹⁷ In the case of India, Chatterjee outlines how understandings of race and bureaucratic rationalization interacted with one another during the modernization of the Raj in the late nineteenth century. Colonial difference “could be marked by many signs, and varying with the context, one could displace another as the most practicable application of the rule,” Chatterjee writes, “But of all these signs, race was perhaps the most obvious mark of colonial difference.”Footnote ¹⁸

The deployment of colonial rule based on racial difference was, unsurprisingly, not passively received. Chatterjee highlights the Ilbert Bill Affair (1882–1883)—a situation whereby an Indian civil servant contested the prohibition that Indian jurists could not try Europeans—as a key moment for the liberal colonial state vis-à-vis the question of protected racial entitlement for whites. An attempt to end this exclusion stirred a “white mutiny” that ultimately compromised the effort.Footnote ¹⁹ But at a broader level, what is important to underscore through this example is the foundational paradox of political liberalism concurrent with imperialism. Such “liberal strategies of exclusion” that viewed colonized peoples as needing acculturation before the acquisition of equal political rights were not limited to India either.Footnote ²⁰ Attributed to Cecil Rhodes, “equal rights for all civilized men” was a motto that encompassed the liberal tradition of the British Cape Colony from the nineteenth up through the early twentieth century. Yet, this early progressive period—culminating in the 1853 Cape Constitution which, due to its non-racial franchise, was arguably the most democratic in the world—did not result in a modern, non-racial state. Indeed, although the 1853 Constitution should not be romanticized, the political turn South Africa would take following union in 1910 through eras of segregation (1910–1948) and apartheid (1948–1994) points to the dramatic manner through which states conceived by liberal ideas could ultimately be compromised by factors of race.Footnote ²¹

However, the racial state as an analytic model has not been influential beyond South Africa, despite the ubiquity of white minority regimes during the colonial period. Indeed, conventional approaches to addressing colonial and postcolonial state formation in Africa have often embraced an ethnic, not racial, perspective as a matter of course, reflecting a generic indirect rule model that incorporated “traditional” authorities, such as chiefs and headmen, of multiple ethnic groups and ethnically-based customary law into colonial state structures. In part, this ethnic state model has developed organically out of scholarly concern for representing the perspectives of local colonized communities as well as attention to the origins of postcolonial ethnic violence. Examining such experiences has drawn attention to how states were popularly shaped and understood.Footnote ²² But this approach also replicates a key strategy for consolidating colonial and postcolonial state hegemony across the continent—an analytic move that consequently raises questions over its uses and potential limitations.

Crawford Young, among other scholars, has summarized the chief character of the colonial state in Africa as consisting of this ethnically-based, divide-and-rule structure.Footnote ²³ Originating with the Shepstone system in nineteenth century Natal (contemporary KwaZulu-Natal in South Africa) and further articulated by Lord Frederick Lugard in Nigeria, variations of this system extended to French, German, and Portuguese colonies as well.Footnote ²⁴ Mahmood Mamdani has captured the rationale of this approach by citing the plain disadvantages that outright racial rule had, namely the creation of black majorities and solidarity through the “unnatural” and ultimately illegitimate character of foreign colonial control.Footnote ²⁵ Recognizing the strategic uses of an ethnic structure of rule has therefore explained the persistence of colonial hegemony through local collaboration, as well as its postcolonial legacies of ethnic division and, at times, violence. In fact, the ethnic state model has even informed understandings of an archetypal racial state—apartheid South Africa—in striking ways. In this view held by Mamdani, apartheid was not simply based on an argument of racial superiority, but on one driven by notions of ethnic cultural relativism reflective of “a nation of minorities.” Indeed, apartheid's legality and longevity depended in part upon this more benign rationale and the misperceptions it generated.

However, analytic reliance on an ethnic state paradigm possesses limitations. First, it risks the uncritical reproduction and legitimation of colonial ideologies of rule, thereby reinstating a perception of state power designed by colonial officials. A fine distinction must be drawn here. As suggested earlier, examining everyday forms of state formation—an important, ongoing endeavor—has illuminated the ethnic ways in which colonial states operated. But, as Thomas Spear has written, such research has also pointed to the intrinsic limits of colonial rule in similar fashion. Customary authorities complied only insofar that their power was stabilized and the social health of their communities was maintained.Footnote ²⁶ In sum, the ethnic state model offers insight into how state power operated in principle, but to apply it universally as an interpretive template, as Mamdani suggests, essentializes colonial situations of power, reinstating a policy of intention rather than exploring the tensions within it. These observations lead to a second limitation. An ethnic state model, when strictly understood, occludes other forms of political imagination and their histories. Indeed, class and gender frameworks have been applied to colonial states in Africa by Gavin Kitching, Frederick Cooper, and Lynn Thomas with keen insight.Footnote ²⁷ The issues of race and racism have been closely associated with these competing understandings. But they deserve more focused attention. If there is value in applying the ethnic state model to South Africa, there is equal value in exploring the different ways the racial state may pertain—and be further revised—by conditions found elsewhere on the continent.

The introduction of the racial state model here therefore intends to readdress the parameters of colonial state formation and power without displacing the role and insights of the ethnic state model. Goldberg argues that the racial state is not defined solely by virtue of the racial identity of its governing personnel. More specifically, it is the consequence of a state's method of “population definition, determination, and structuration.” Such practices are racist when they “operate to exclude or privilege in or on racial terms, and in so far as they circulate in and reproduce a world whose meanings and effects are racist.”Footnote ²⁸ Colonial states were culpable in both instances. The use of the racial state model therefore evinces a central dimension of colonial governance and, at a broader level, enables a conversation between colonial state formation in Africa and modern state formation elsewhere, particularly in relation to how state policies sanctioned and understood racial and ethnic categories of difference. Indeed, the relative durability of colonial rule in Africa must be understood as being caused in part by the interaction between ethnic policies that sought to “naturalize” the colonial state—in essence, an attempt at rendering the state an “effect” of local interests—and a racial structure of political inclusion and exclusion that ensured white control over political participation, centering on the categories of “native” and “non-native.” Reconciling tensions between these two visions of state behavior was a set of mutual class interests contingently shared by African elites and non-native settler communities, both of whom sought to accumulate wealth and maintain power. Overall, the political narrative of liberalism and the colonial state in Africa must be understood as consisting of a working relationship between these two components.

Yet, as evinced through the Carr v. Karim case, this cooperative intersection facilitated by overt ethnic rule screening more covert forms of state racism was rarely stable. The term “native” was a key organizing principle of colonization in Africa as it had been elsewhere in the British Empire, constituting an idea and representation for purposes of policy as well as a practical term of everyday use. Although its ubiquity suggests a general understanding and acceptance, it inevitably met diverse local conditions that multiplied the ways in which it was understood and held meaning. Indeed, an early article by imperial historian Ronald Robinson published in 1949 observed that legal definitions of the term varied from colony to colony, making generalization difficult.Footnote ²⁹ However, a key basis for its universality in the context of Africa was the tacit assumption that it referred to a person who was black. It therefore served as euphemistic short-hand for gathering and organizing the vast social heterogeneity colonial states had encountered, offering a form of demographic legibility—or “definition, determination, and structuration” to repeat Goldberg's criteria—that enabled social exclusion without slippage into transparently racist language.Footnote ³⁰ It consequently falls into a particular colonial vocabulary and grammar of control that included such expressions as “assimilation” and “association” in the French case and the categories of indígena, não-indígena and assimilado in the Portuguese context, all of which privileged notions of cultural status on the surface and the idea of indigeneity over race in the making of social and legal difference.Footnote ³¹ The “civilizing mission” of Western imperial powers—espoused, in the British case, by such figures as David Livingstone and Cecil Rhodes, mentioned before—held forth the liberal idea and promise of equality provided that “civilized” status was achieved. This standing ostensibly could be achieved through literacy, conversion to Christianity, and the acquisition of other Western cultural attributes.

Nonetheless, as the Reed ruling evinces, racial descent played a vital role in determining status, directly compromising these liberal ideals and possibilities. More specifically, it demonstrates the furtive and complex role that legal principles of jus soli (right of “soil” or territory) and jus sanguinis (right of “blood” or descent) played in negotiating situations of multiracial identity under colonial rule. These concepts have acquired a central role in understandings of modern citizenship, and they continue to inform criteria for citizenship status in a number of countries. Important to this article is the suggestive role of colonialism in their definition. Although their evolution cannot be wholly attributed to the factor of overseas imperialism, this case study raises fundamental questions as to how modern empires affected the evolution of these concepts that have underpinned definitions of modern citizenship across the globe. To grasp the full implications of this case—within British colonial Africa but also comparatively vis-à-vis other legal contexts—it is necessary to explore the colonial uses of these ideas and the politics they generated.

Jus Soli and Jus Sanguinis in a Colonial Context: The Shifting Politics of Racial Descent and Culture under Imperial Rule

The adjudication of racial identity in courtroom settings has become a prevalent subgenre within socio-legal research on race. Scholarship situated in the United States, for example, has explored the challenges that judges, juries, plaintiffs, and defendants faced in articulating hard and fast definitions of “race” amidst personal histories of interracial sex, intermarriage, and race “mixture.” The key contribution of this literature has been to point to the contingent and fluid construction of racial identities and consequently the fictional attributes of racial categories themselves. Moreover, it has underscored the legal agency, if at times limited, that individual people have had in claiming certain identities against prevailing social expectations or legal norms.Footnote ³² The case of Carr v. Karim fits well into this area of research, although this article aims to move beyond an argument for the “constructedness” of race—a relative truism at this point—to examine instead how the legal ideas of jus soli and jus sanguinis offer a different conceptual register for thinking through the specific rationales and political implications for arbitrating the legal status of people, and multiracial people particularly. Indeed, their employment here is not meant to displace race as a criterion, but to bring a different focus to the socio-legal ways in which race was grafted onto civic principles of inclusion and exclusion. In an influential study of the evolution of modern citizenship, Rogers Brubaker in particular has explored the contrasting roles these doctrines had in France and Germany. This type of attention is not only distinguished from pre-existing work on ideology, bureaucracy, and class politics, but in parallel to these issues Brubaker considers another crucial element of modern state formation and its boundaries. “Citizenship is not only an instrument of closure, a prerequisite for the enjoyment of certain rights, or for participation in certain types of interaction,” Brubaker writes, “It is also an object of closure, a status to which access is restricted.”Footnote ³³ In the case of France, this practice of legal enclosure that differentiated between citizens and aliens centered on place of birth (jus soli). In Germany, emphasis was placed on familial descent (jus sanguinis).

These qualifications for modern citizenship have since varied with many nation-states employing both concepts, albeit to different degrees. Furthermore, beyond ascription at birth, citizenship status has typically been made possible through avenues of naturalization.Footnote ³⁴ Of interest here is the extent to which jus soli and jus sanguinis applied to colonies—indeed, the ways in which colonial contexts formed a crucible for rethinking the use and application of such ideas. Both ideas of descent and territory of birth were present in the High Court of Nyasaland. Reed's Biblical allegory of the manger clearly intended to convey the “naturalness” of descent over place of birth. Given that non-native status typically applied to European settlers who originated elsewhere, his judgment could be interpreted as a pragmatic move within an imperial context. However, Reed's privileging of descent created a distinct opening for claims to non-native status among multiracial people born outside of Britain. Indeed, in July 1929, the Anglo-African Association of Nyasaland formed as a result of the Reed ruling.Footnote ³⁵ Given the legal shift involved, the Association found purpose in determining what opportunities and challenges might be presented.Footnote ³⁶ At its inaugural meeting, legal and social status quickly emerged as “the most important question above all,” with particular criticism directed toward the “painful designation” of “half-caste.”Footnote ³⁷ The Association argued that “millions of similar people” existed elsewhere and that positive recognition through education, higher wages, and other forms of social welfare would aid their community. Initial government response expressed support, that they were “very loyal to the British Government” and possessed an admirable aim “to raise themselves and prove worthy of the citizenship they have inherited.”Footnote ³⁸ The question of legal status through their “inherited” citizenship subsequently underpinned the activities and hopes of this organization and the community it represented.

The establishment of such an association was not necessarily unique. Northern Rhodesia (contemporary Zambia) and Southern Rhodesia (contemporary Zimbabwe) witnessed the founding and growth of similar organizations during the interwar period and after, among them the Coloured Community Service League of Southern Rhodesia, the Euro-African Patriotic Society of Southern Rhodesia, and the Eurafrican Society of Northern Rhodesia. Population numbers were small, however, with figures for Southern Rhodesia, which had the largest community among the three territories, listing 10,559 “coloured” (multiracial) persons in 1961 compared to 7,253 Asians, 221,504 whites, and 3,550,000 Africans (estimated).Footnote ³⁹ Therefore, even though the Nyasaland government perceived Anglo-Africans as a “clean, law abiding, respectful community” that deserved legislative consideration as “a separate class,” administrative difficulties were soon encountered. Indeed, by April 1930 opinion had shifted such that the colonial secretary, who ran day-to-day operations in the protectorate, commented to the Nyasaland attorney general, “I think this is likely to be a very difficult problem.”Footnote ⁴⁰

At the center of this predicament was not the decision of how to classify multiracial people alone, but how to define the categories of “native” and “non-native” more generally. Beyond specific mention in local laws and ordinances, no general definitions or protocol existed. Indeed, the absence of definition is reflective of the general character of British colonial law, which T. Olawale Elias has described as being “at once various and unitary” because of the shifting legal interface of English common law and local customary law.Footnote ⁴¹ Customary law could be quite “shallow”—in the British West Indies, for example—or it could be quite “deep” and complex as in South Asia and Africa. Colonial judges, such as Reed, in particular faced a balancing act of negotiating and reconciling these two legal realms and were often left to their own devices, if not being entirely autonomous.Footnote ⁴² Given the ramifications in this case, however, the question of definition consequently took on a regional perspective, with officials throughout British East and Central Africa consulted in particular, although South Africa and the Colonial Office in London also played vital roles.Footnote ⁴³ The key question concerned descent. Did a person with a British or European father automatically inherit his or her father's status?Footnote ⁴⁴

The Nyasaland attorney general's response on this matter did not find fault with the Reed ruling, though he did argue that the issues of race, origin, and nationality should be understood as separate terms. “Origin and race are wholly distinct matters from Nationality,” he stated. “All persons born in a country which is under British rule are natural-born British Subjects but the acquisition of such Nationality has no bearing on their race or origin. A European, Indian, Half-caste and native are alike British Subjects but their race or origin is not influenced by the fact.”Footnote ⁴⁵ In short, British subjecthood—a status that preceded British citizenship and depended on the idea of allegiance—was determined by a jus soli rationale, a practice established by the British Nationality and Status of Aliens Act of 1914, which went into effect in 1915.Footnote ⁴⁶ But the approach of this initial opinion offered limited reach or appeal, as it did not adequately explain and legitimate the distinction between “native” and “non-native” status. The category of “European British subject” had circulated as a means of instituting white privilege, although who was included within this category had also faced some debate. As Jordanna Bailkin has recently written, European British subjects, as defined by the European Vagrancy Act of 1874, were “persons of European extraction,” thus utilizing a jus sanguinis rationale. Yet the principle of jus soli was also present, as birth in certain settler territories—Australia, New Zealand, and the Cape and Natal colonies among them—counted as qualification for this status. Moreover, specific to the law itself, being homeless disqualified one from this status. “Behavior that damaged white prestige, such as homelessness or vagrancy,” writes Bailkin, “was thus criminalized and rendered non-British.”Footnote ⁴⁷

Extended discussion in Central and East Africa further hinted at the potential complexities involved when deliberating their respective entitlements vis-à-vis the confluence of race and origin. Although citizenship per se as a distinct category did not appear until the British Nationality Act of 1948, those who held the status of “non-native”—typically, although not exclusively, British settlers as mentioned before—gained the benefits of British common law, whereas “natives” were made accountable to local customary law dependent upon which ethnic group one belonged to. A descent clause of the 1914 act that entitled children to inherit their father's status, which Reed likely drew upon, further unsettled matters. Many Anglo-Africans were seen as born out of wedlock, therefore undermining at one level the issue of whether status could be conferred by the father.Footnote ⁴⁸ Still, legislation of some kind for defining these categories of social inclusion and exclusion was viewed as necessary. Furthermore, the approval of the Colonial Office for a regional policy was needed.Footnote ⁴⁹ In fact, bringing this situation to a broader imperial audience, Governor Shenton Thomas of Nyasaland consequently wrote a confidential letter to Lord Passfield, secretary of state for the colonies, in November 1930 to offer the view that “children born in lawful wedlock of the union of Europeans and Indians with native women acquire the nationality of the father.” But the status of illegitimate children was unclear, unless “under the ruling of the Judge [Reed] the illegitimate offspring of such unions are merely non-natives under the Protection of the Crown.”Footnote ⁵⁰ In practice, given existing marriage codes that sought to separate customary and English marriage law, illegitimate children were more common, simply because legally recognized interracial marriages were uncommon. He further noted that Anglo-Africans were “not regarded by the natives as belonging to the native community.” But creating a new intermediate status or including them as “non-natives” seemed impractical. “However much one may sympathise with the plight of these unfortunate people,” Thomas argued, “it cannot gainsaid that they are to be found in most, if not all, tropical African Dependencies and, so far as my information goes, they are everywhere regarded as natives.”Footnote ⁵¹

This perception was not entirely correct, however. In the Colonial Office's deliberations, several contexts were considered to resolve the issue, some of which emphasized the criterion of non-native descent similar to the Reed ruling. The definition of “native” as it pertained to the South African Native Administration Act of 1927, for example, did not include persons of “Coloured” background as long as they did not “live as natives.”Footnote ⁵² Under the Natives Urban Areas Act of 1923, the expression “Coloured person” was defined as “any person of mixed European and Native descent and shall include any person belonging to the class called Cape Malays.”Footnote ⁵³ Coloured South Africans were not accountable to this law, nor were they subject to the Natives Taxation and Development Act of 1925, which excluded any persons of European descent unless they were living in a manner deemed as “native.”Footnote ⁵⁴ Overall, coloured South Africans were not defined as “native” under the law, but were considered a tertiary social group.Footnote ⁵⁵ In Southern Rhodesia, a similar situation existed in some quarters, with the definition of “native” as it applied to the Native Urban Locations Ordinance of 1906 and the Native Pass Ordinance of 1913, requiring that both parents be African.Footnote ⁵⁶ Regarding land tenure, the Land Apportionment Act of 1929 defined “native” as a person who had “the blood of such tribes or races” and lived “after the manner of natives.”Footnote ⁵⁷ Local tax laws also followed both descent and lifestyle.Footnote ⁵⁸ Southern Rhodesia therefore paralleled South Africa in the use of varying degrees of descent and lifestyle, a situation also found in Bechuanaland (contemporary Botswana) and Swaziland. Racial demographic differences between these locales made the importance of this issue of definition relative to the degree of white settlement and the consequent existence of multiracial communities.Footnote ⁵⁹ Yet these pre-existing measures offered a thematic template and semblance of regional uniformity to draw upon for making policy.Footnote ⁶⁰

In January 1931 the Colonial Office held a meeting in London to address the issue of definition conclusively.Footnote ⁶¹ General agreement existed on the logic of the Reed ruling regarding the significance of descent, although, given the criteria in existing legislation, debate ensued as to the additional role of culture. A Southern Rhodesia law—the Arms and Ammunition Ordinance No. 2 of 1891—was proposed as an emblematic example of a strict descent argument. It was criticized on exactly those grounds, however, because it “followed very closely the American definition whereby it is impossible for anyone who has any aboriginal blood—however little it may be—in his veins to be considered a non-native.”Footnote ⁶² Equally considered was a Northern Rhodesian definition that underscored a distinct cultural component, although this approach was interpreted as potentially inadequate as it would not cover groups such as Swahili communities on the East African coast who were conventionally viewed as “native,” although, from a cultural standpoint, “not aboriginals of Africa.”Footnote ⁶³ The issue of demographic and cultural heterogeneity across British Africa therefore confounded any easy generalization. It was consequently recommended that status be decided by local courts through an application process, rather than by general legislation for “a separate class.” This approach was cited as already existing in New Zealand in cases of “half-caste Maori.” It was also observed in the United States in the case of Native Americans. Final adjudication would primarily be through a lifestyle measure—that is, “non-native” status would be conferred on the basis of a combination of descent and culture.Footnote ⁶⁴ The use of the term “lifestyle” is crucial here. The day-to-day surface characteristics it suggests, rather than the historical depth and meaning that the word “culture” imparts, points to the contingent, visual nature of determining “native” cultural status that ultimately occurred under colonial rule, a predicament further captured in the legal wording of the time such as “in the manner of,” “after the manner of,” and “live as natives.” The surface quality of this process of definition is similar to that found in United States courtrooms a propos of racial identity as discussed earlier. In short, “culture” proved to be as equally fluid and fictive as “race.”

With this outcome in London, it was moved that the question of definition and its legal process be discussed by regional administrations, particularly in East Africa, which was preparing for a regional law conference.Footnote ⁶⁵ “The status of native half-castes is… a question which raises more than local issues,” a circulated letter stated, and “it is desirable that the whole question should be considered in relation to East Africa generally before it assumes a more serious and urgent character.”Footnote ⁶⁶ The letter underscored that the legal status should depend upon descent in the first instance and a cultural standard thereafter and that “no obstacle should be placed in the way of native half-castes being classed among members of a higher civilisation where their standard and manner of life justifies such classification.”Footnote ⁶⁷ The key question was whether the Reed ruling, which relied upon descent alone, should be legalized universally, an approach that London was clearly leaning against. To this end, three options based upon existing laws were outlined. The Arms and Ammunition Ordinance No. 2 of 1891 from Southern Rhodesia was one model which, as discussed earlier, defined the term “native” as any individual who was “a descendent of any aboriginal native of Africa”—again, essentially a “one drop” rule in approach. The Interpretation Ordinance No. 55 of 1929 from Northern Rhodesia provided a second model that included a cultural component, excluding from “non-native” status anyone who was “living among and after the manner of any such tribe or race.” A third possibility was to define a “native” as anyone “who is or whose father or mother was an aboriginal native of Africa,” thus employing a strong “native” descent rule, but, unlike the Southern Rhodesian ordinance, only for first-generation persons. This approach therefore used a generational criterion rather than culture as a means of exclusion.Footnote ⁶⁸ Overall, a persistent tension existed between racial descent and culture. Lord Passfield stressed his desire that the governments of East Africa consider a standard protocol that would make “non-native” status depend primarily on a cultural standard.Footnote ⁶⁹ However, this position posed a broader question as to how Western-acculturated Africans were to be classified. An emphasis on “mode of life” generated a set of questions and ambiguities that extended well beyond multiracial people, intersecting with widespread processes of secular education, Christian conversion, habits of dress, language, and other modes of cultural assimilation to Western social standards and practices.Footnote ⁷⁰ If culture became the primary criterion, could a Western-educated African qualify for “non-native” status?

This question rested at the heart of the regional debate that followed. Furthermore, it pushed the racial underpinning of “native” and “non-native” legal status more closely to the surface. Noting the ensuing complications, the response from Nyasaland was one of frustration. In August 1931 the attorney general suggested that prior to the issue being raised, “all half-castes were living as natives and wished to be treated as natives” and that the origins of the debate, in reference to the Anglo-African Association, were the result of “a few better educated half-castes, who are protesting against being classified as natives.” In contrast to the earlier position of Nyasaland, he consequently argued that “The vast majority of half-castes in Nyasaland live in exactly the same manner as natives and would be completely lost and unhappy if by stroke of a pen, they were debarred from taking their place in the political life of a native village and I very much doubt whether a village Headman would permit a half-caste to remain in his village if he were considered by law to be outside his jurisdiction.”Footnote ⁷¹ This perspective that “the majority [were]… living under native conditions” was reiterated elsewhere.Footnote ⁷² Northern Rhodesia, for example, expressed the desire to avoid “the establishment of a class neither European nor Indian on the one side, nor African on the other, which might separate itself from both, be despised by the one and despise the other.”Footnote ⁷³ In this view, African opinions also mattered, particularly against the backdrop of region-wide transitions to indirect rule. Zanzibar officials wrote that, although “Euro-Africans” and “Indo-Africans” were marginal, “Arab-Africans” were numerically significant and considered “non-Africans.”Footnote ⁷⁴ To create a separate class was seen as “politically undesirable.”Footnote ⁷⁵ Ugandan officials also said the issue was not pressing and that many were “content to accept the status of natives… since the advantages which, as natives, they enjoy in such matters as the holding of land and the provision of education are likely to outweigh in the minds of the majority any benefits they might derive from their being regarded as non-natives.”Footnote ⁷⁶ On the criterion of cultural lifestyle, the Ugandan administration equally remarked, in reference to the level of African education, that there already existed “an increasing number of natives whose standard of living is in every way superior to that of a large number of non-natives.”Footnote ⁷⁷

This variety of presented opinions resulted in a final report published in January 1932, with the Office of the Conference of East African Governors stating that no consensus existed.Footnote ⁷⁸ The Conference of Law Officers held in 1933 issued a separate statement entitled the “Status of Half Castes.”Footnote ⁷⁹ The latter report proposed that a legal position from Tanganyika (contemporary Tanzania) be taken as a general model. It captured the pre-existing approaches of many regional administrations as well as the emphasis on cultural lifestyle by the Colonial Office. But, reflecting its League of Nations mandate status and its consequent broader outlook, Tanganyika's position also sought to avoid “any word implying inherent inferiority of social status” by arriving at a firm definition of “native.”Footnote ⁸⁰ Indeed, it was directly stated—if with tacit qualifications—that “racial discrimination in law is objectionable in principle although in certain exceptional cases it can be justified.” The general outlook of Tanganyika asserted that “the expression ‘African’ might be construed to include French citizens in Algeria, Egyptians, South Africans, and others, with inconvenient consequences” and that definition was needed. “No different legal status is intended,” it argued, “but only the adoption of a convenient term for use when the provisions of any particular enactment are required to be applied to a certain section of the community, generally described as ‘the natives.’”Footnote ⁸¹

In the case of multiracial persons, they could apply for “non-native” status provided these criteria were met: “(a) that he is partly of non-native descent. This is a definite condition not within the power of the individual to change in any way; (b) that he is not occupying land in accordance with native tenure or customary law; and (c) that he is not living among the members of any African tribe or community in accordance with their customary mode of life.”Footnote ⁸² Debate still remained over the expression “customary mode of life,” with one perspective suggesting that “a well-to-do Muganda might live in a brick house, use tables and chairs, drive about in a car, wear European clothes, etc., and this might be called ‘the manner of’ at least considerable numbers of Baganda; but it could certainly not be called ‘in accordance with the customary mode of life’ of the Baganda generally.”Footnote ⁸³ In sum, presumptive and static conceptions of “native” culture combined with the provisional lack of substance and meaning in ad-hoc visual measurements of a person's “lifestyle” meant that adjudicating the identities of “native” and “non-native” retained transparent problems, in a fashion similar to the arbitration of “race” elsewhere in the world.

The question of cultural lifestyle was therefore closely tied to racial identity, despite efforts to work against this impression. Non-native status was not officially seen as “superior” to “an inferior native status.”Footnote ⁸⁴ Yet the task of defining categorical difference in principle without dispensing a transparent sense of legal and racial hierarchy at the same time remained a key predicament. The final version of the proposal entitled “The Interpretation (Definition of ‘Native’) Ordinance, 1933” defined as native “any person who is a member of or any one of whose parents is or was a member of an indigenous African tribe or community” and a non-native as meeting the criteria set forth by Tanganyika. It also contained specifics such as the inclusion of the Swahili as natives, but not Arabs, Somalis, Madagascans, Comoro Islanders, or Baluchis (a Pakistani minority group) “born in Africa.”Footnote ⁸⁵ Such detail pointed to the demographic idiosyncrasies of certain locales—particularly along coastal Kenya, Tanganyika, and Zanzibar where cultural intermixture was especially robust as a result of Indian Ocean trade—but these definitions also evinced the idea that the term “native” was not defined by race, culture, or geographic origin alone, but through a combination of all three. This cluster of determining factors reflected local issues over land use and the legal status of resident colonial foreigners, such as Arab colonial subjects, but they equally signaled broader sensibilities of racial and cultural difference. Culture appeared concretely as a key deciding factor after an opening premise of racial descent. The criterion “partly of non-native descent” preserved an opportunity to persons of multiracial background. But equally so, a person “any one of whose parents is or was a member of an indigenous African tribe or community” was still a native until proven otherwise. A formal court application process was required through which a person could receive a certificate declaring “for all purposes” that person was “to be of the race of his non-native parent.” The application itself constituted a simple, one-page form of declaration with the candidate, in addition to meeting the basic qualifications previously mentioned, needing to submit their occupation, their parents' names and their “descriptions,” as well as a photograph of the applicant.Footnote ⁸⁶ Visual criteria retained an important role.Footnote ⁸⁷

These provisional recommendations for the region soon met a series of local reservations, however. The Kenyan government, for example, feared the legal ambiguities vis-à-vis multiracial persons and land rights, that “considerable difficulties” could be posed by “the acquisition by persons only partly of non-native descent of land in the Highlands.”Footnote ⁸⁸ The issue of safeguarding land for white settlers was of key importance to Kenyan officials.Footnote ⁸⁹ In April 1934 a Nairobi official further argued that “each Colony had its own peculiar difficulties” and that legal measures on the issue “must of necessity differ,” with laws “on the general lines of the Tanganyika Bill adapted to each Colony” offering “the best hope of a solution.”Footnote ⁹⁰ Northern and Southern Rhodesia also embraced an increasingly passive attitude toward the issue.Footnote ⁹¹ In December 1935, Northern Rhodesia indicated that no decision on the matter had been reached within its administration.Footnote ⁹² Southern Rhodesia relayed that a definition incorporating both race and culture had been discussed and was to be addressed in the Rhodesian Parliament. No firm commitment to the 1933 proposal, however, had been made.Footnote ⁹³ In Nyasaland, discussion emerged as to whether the decision of Carr v. Karim should simply be followed, rather than enacting a separate bill defining the term “native.”Footnote ⁹⁴ By 1938 Nyasaland officials sought to resolve this impasse by querying if other administrations had taken any action.Footnote ⁹⁵ Besides a 1934 definition passed by Kenya that approximated the Tanganyika bill but with local issues addressed, no additional action had been undertaken by Northern Rhodesia, Zanzibar, Uganda, or Tanganyika itself.Footnote ⁹⁶ With this failure of regional consensus, no further action was taken.Footnote ⁹⁷