"Of Portuguese origin": Litigating identity and citizenship among the "little races" in nineteenth-century America

Law and History Review

Volumn 25, Issue 3, 2007, Pages 467-511

  Gross, Ariela ^a  

^a UNIVERSITY OF SOUTHERN CALIFORNIA   (United States)

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EID: 51249142862     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0738248000004259     Document Type: Review

References (116)

1. See, e.g., Jack Forbes, Africans and Native Americans: The Language of Race and the Evolution of Red-Black Peoples (Urbana: University of Illinois Press, 1993);
2. Gary Nash, Red, White, and Black: The Peoples of Early North America, 4th ed. (Upper Saddle River, N.J.: Prentice Hall, 2000);
3. James F. Brooks, ed., Confounding the Color Line: The Indian-Black Experience in North America (Lincoln: University of Nebraska Press, 2002);
4. Tiya Miles, Ties That Bind: The Story of an Afro-Cherokee Family in Slavery and Freedom (Berkeley: University of California Press, 2005);
5. Circe Sturm, Blood Politics: Race, Culture and Identity in the Cherokee Nation of Oklahoma (Berkeley: University of California Press, 2002);
6. Daniel Littlefield, The Cherokee Freedmen: From Emancipation to American Citizenship (Westport, Conn.: Greenwood Press, 1978),
7. and Africans and Seminoles: From Removal to Emancipation (Westport, Conn.: Greenwood Press, 1977);
8. Katja May, "Collision & Collusion: Native Americans and African Americans in the Cherokee and Creek Nations, 1830s to 1920s" (Ph.D. diss., University of California, 1994).
9. After many years of desuetude, there is now a vibrant history of citizenship in the United States. See, e.g., James Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press, 1978);
10. Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History (New Haven.: Yale University Press, 1999);
11. Linda Kerber, "No Constitutional Right to Be Ladies": Women and the Obligations of Citizenship (New York: Hill & Wang, 1998);
12. Kunal M. Parker, "State, Citizenship, and Territory: The Legal Construction of Immigrants in Antebellum Massachusetts," Law and History Review 19 (2001): 583-643;
13. Mae M. Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004). Much of the literature on citizenship, in political theory as well as history, is preoccupied, as I am, with full social and political citizenship, rather than formal citizenship alone. Mae Ngai's work is a rare and wonderful exception.
14. Immigration and Naturalization Act of 1790, 1 Stat. 103 (1790).
15. See, e.g., Kerber, No Constitutional Right to Be Ladies;
16. Nancy Cott, Public Vows: A History of Marriage and the Nation (Cambridge: Harvard University Press, 2000).
17. See, e.g., Ira Berlin, Slaves without Masters: The Free Negro in the Antebellum South (Oxford: Oxford University Press, 1974; rev'd ed. 2007).
18. All Indians did not become U.S. citizens until 1924, with the Indian Citizenship Act, but individual Indians whose tribal governments were disbanded and who received allotments of land under the 1887 Dawes Act and 1898 Curtis Act became U.S. citizens before that. Likewise, the "de-tribalized" Narragansett gained U.S. citizenship, and members of un-recognized Indian tribes like the Croatan/Lumbee were considered U.S. citizens.
19. See "Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South," The Yale Law Journal 108.1 (1998): 109-188.
20. Other important works on law and the construction of race include Peggy Pascoe, "Miscegenation Law, Court Cases, and Ideologies of 'Race' in Twentieth-Century America," Journal of American History 83 (1996): 44-69;
21. Ian Haney Lopez, White By Law (New York: NYU Press, 1996);
22. Walter Johnson, "The Slave Trader, the White Slave, and the Politics of Racial Determination in the 1850s," Journal of American History 87 (2000): 13-38; and many others too numerous to mention.
23. State v. Belmont, 4 Strob. 445, 447-52 (S.C. 1848).
24. U.S. v. Rogers, 45 U.S. (4 How.) 567, 572-73;
25. Bethany R. Berger, "'Power over This Unfortunate Race': Race, Politics, and Indian Law in United States v. Rogers," William and Mary Law Review 45 (2003): 1957-2052.
26. Quoted in Robert F. Berkhofer, Jr., The White Man's Indian: Images of the American Indian from Columbus to the Present (New York: Vintage Books, 1978), at 151.
27. See, e.g., Bryan v. Walton, 14 Ga. 185 (1853); Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).
28. See Slaughterhouse Cases, 83 U.S. 36 (1873);
29. Civil Rights Cases, 109 U.S. 3 (1882).
30. See, e.g., Brewton Berry, Almost White (New York: Macmillan, 1963)
31. and Edward T. Price, "A Geographic Analysis of White-Negro-Indian Racial Mixtures in Eastern United States," Annals of the Association of American Geographers 43 (1953): 138-55,
32. for classic accounts of "tri-racial isolates"; Jack Campisi, The Mashpee Indians: Tribe on Trial (Syracuse, N.Y.: Syracuse University Press, 1991),
33. and James Clifford, "Identity in Mashpee," in The Predicament of Culture: Twentieth-Century Ethnography, Literature and Art (Cambridge: Harvard University Press, 1990), 277-346 on the Mashpee;
34. Gerald Sider, Lumbee Indian Histories: Race, Ethnicity, and Indian Identity in the Southern United States (Cambridge: Cambridge University Press, 1993),
35. and Karen Blu, The Lumbee Problem: The Making of an American Indian People (Cambridge: Cambridge University Press, 1980), on the Croatan/Lumbee;
36. Henry R. Price, Melungeons: The Vanishing Colony of Newman's Ridge (Sneedville, Tenn.: Hancock County Drama Assoc, 1971), on the Melungeons;
37. as well as Helen Rountree, Pocahontas's People: The Powhatan Indians of Virginia through Four Centuries (Norman: University of Oklahoma Press, 1990);
38. David Steven Cohen, The Ramapo Mountain People (New Brunswick, N.J.: Rutgers University Press, 1974);
39. Gary B. Mills, The Forgotten People: Cane River's Creoles of Color (Baton Rouge: Louisiana State University Press, 1977).
40. See, e.g., Thelma Fenster and Daniel Lord Smail, eds., Fama: The Politics of Talk and Reputation in Medieval Europe (Ithaca: Cornell University Press, 2003),
41. esp. Chris Wickham, "Fama and the Law in Twelfth Century Tuscany," and
42. Thomas Kuehn, "Fama as a Legal Status in Renaissance Florence," 15-46.
43. For colonial America, see Mary Beth Norton, "Gender and Defamation in Seventeenth-Century Maryland," William and Mary Quarterly 44 (1987): 3-39.
44. Kuehn, "Fama as a Legal Status," at 27.
45. Indians could be enslaved "if they committed acts (such as flight) that could be construed by the English as hostile." The law was passed again in 1677 and remained "on the books until 1691 and in practice for decades longer." Rountree, Pocahontas's People, 139.
46. Quoted in Peter Wallenstein, "Indian Foremothers: Race, Sex, Slavery, and Freedom in Early Virginia," in The Devil's Lane: Sex and Race in the Early South, ed. Catherine Clinton and Michele Gillespie (New York: Oxford University Press, 1997), 57-73.
47. Gary B. Nash, "The Hidden History of Mestizo America," Journal of American History 82 (Dec. 1995): 948.
48. Daniel R. Mandell, "Shifting Boundaries of Race and Ethnicity: Indian-Black Intermarriage in Southern New England, 1760-1880," Journal of American History 85 (Sept. 1998): 490-91.
49. Letter to Tho. Cushing, Mashpee, 24 June 1776, Gideon Hawley Letters, Folder; Typescripts, 1772-1776, Massachusetts Historical Society (hereafter cited as MHS), Boston.
50. Letter enclosed in Letter to Wm Toogood, Mashpee, 24 July 1787, Gideon Hawley Letters, MHS, Boston.
51. On the "vanishing Indian," see, e.g., Robert Berkhofer, Jr., The White Man's Indian: Images of the American Indian from Columbus to the Present (New York: Random House, 1978);
52. Philip Deloria, Playing Indian (New Haven: Yale University Press, 1998);
53. Fergus Bordewich, Killing the White Man's Indian: Reinventing of Native Americans at the End of the Twentieth Century (New York: Doubleday, 1996);
54. Brian Dippie, The Vanishing American: White Attitudes and U.S. Indian Policy (Middletown, Conn.: Wesleyan University Press, 1982);
55. Jean O'Brien-Kehoe, "'Vanishing' Indians in Nineteenth-Century New England: Local Historians' Erasure of Still-Present Indian People," New Perspectives on Native North America, ed. Sergie Kan and Pauline Turner Strong (Lincoln: University of Nebraska Press, 2006).
56. To Governor Hancock. Plantation of Mashpee, County of Barnstable, July 8 1791, p. 6, Gideon Hawley Letters, MHS, Boston.
57. Letter to Shearjashub Bourne from Gideon Hawley, Mashpee, 15 December 1788, Samuel P. Savage Papers: 1703-1848, Folder: S. P. Savage, 1788-1789, MHS, Boston.
58. Ruth Wallis Herndon and Ella Wilcox Sekatau, "The Right to a Name: The Narragansett People and Rhode Island Officials in the Revolutionary Era," Ethnohistory 44 (Summer 1997): 444-47.
59. See also Margaret Ellen Newell, "The Changing Nature of Indian Slavery in New England, 1670-1720," in Reinterpreting New England Indians and the Colonial Experience, ed. Colin G. Calloway and Neal Salisbury (Boston: Colonial Society of Massachusetts, 2003), 128.
60. Herndon and Sekatau, "Right to a Name," 446.
61. Jack D. Forbes, Africans and Native Americans: The Language of Race and the Evolution of Red-Black Peoples, 2nd ed. (Urbana: University of Illinois Press, 1993), 195.
62. Virginia Easley DeMarce, "Very Slitly Mixt: Tri-Racial Isolate Families of the Upper South - A Genealogical Study," National Genealogical Society Quarterly 80 (March 1992): 5-35;
63. Paul Heinegg, Free African Americans of North Carolina and Virginia, Forward by Ira Berlin (Genealogical Publishing, 1999), http://www. freeafricanamericans.com.
64. See William S. Willis, "Divide and Rule: Red, White, and Black in the Southeast," Journal of Negro History 48 (July 1963): 157.
65. See Karen M. Woods, "A 'Wicked and Mischievous Connection': The Origins of Indian-White Miscegenation Law," Legal Studies Forum 23 (1999): 67.
66. Woods, "Indian-White Miscegenation Law," 54-55;
67. Christian F. Feest, "Pride and Prejudice: The Pocahontas Myth and the Pamunkey," in The Invented Indian: Cultural Fictions and Government Policies, ed. James Clifton (New Brunswick, N.J.: Transaction Publishers, 1990).
68. Feest, "Pride and Prejudice," 53-54.
69. Virginia Easley DeMarce, "Looking at Legends - Lumbee and Melungeon: Applied Genealogy and the Origins of Tri-racial Isolate Settlements," National Genealogical Society Quarterly 81 (Mar. 1993): 24-45.
70. Paul Heinegg, "Free African Americans of Virginia, North Carolina, South Carolina, Maryland, and Delaware," available at www. freeafricanamericans.com.
71. Blu, The Lumbee Problem, 62.
72. Manuel Mira, The Portuguese Making of America (Franklin, N.C.: P.A.H.R. Foundation, 2001).
73. Territorial Act of 1794, chap. 1, sec. 32, Tennessee Public Acts of 1831, chap. 102, Constitution of 1834.
74. See also Jones v. State, 19 Tenn. 120 (1838), State v. Claiborne, 19 Tenn. 331 (1838).
75. Jan. 25 1846, Sept. 29 1846, State vs. Solomon, Ezekial, Levi, Andrew, Wiatt, Vardy Collins, Zachariah, Lewis Minor, Hawkins County Circuit Court Minute Book, 1842-48, Hawkins County Circuit Court, Hawkins County Courthouse, Boxes 31, 32.
76. See also Jack H. Goins, Melungeons and Other Pioneer Families (2000).
77. Jacob F. Perkins vs. John R. White, Carter County, July 1855, Abstract of Depositions, T. A. R. Nelson Papers, McClung Collection, East Tennessee University, Knoxville. While I was unable to find any record of this case in the few surviving Carter County records, this was one of the rare cases in which the lawyer's extensive notes on testimony and trial strategy survived.
78. Testimony of Jane Griffey, Dr. John E. Copen, Nancy Lipps, ibid., 8-9.
79. F. Merritt, Early History of Carter County. 1760-1861 (Knoxville: East Tennessee Historical Society, 1950). Available at Tennessee State Library and Archives. Census of 1850, 1860.
80. Perkins v. White does not appear to be an isolated case. In another racial-slander suit brought by a Melungeon in 1858, Elijah Goin won $50 damages from Sterling Mayser. Goin's witness testified that Mayser "had a negro 'ditty' which he had sung to Elijah Goin ... 'Elijah Goin being a little blacker, he run up and down the creek like a damn mulatto'" and that Mayser had "said his children should call them [mulatto] & he would protect them in it." As White had done in Perkins's case, Mayser defended himself with a number of witnesses who testified "that it was generally reported and believed that [Goin] was a man of mixed blood." Peter Mareum and William Murphy both stated that they were well acquainted with Goin's grandfather, and "he was reputed to be distantly mixed blooded," although they also testified "that he voted, served on jurys, and was examined as a witness between white men never heard him questioned or denied." Goin, by contrast, invoked the codes for performing white manhood by bringing in evidence that he, his father, and his grandfather had voted, sat on juries, and acted as witnesses in courts of law. Goin v. Mayser, available at Tennessee State Archives. Goin's lawyer, John Netherland, is an interesting figure whose personal history suggests many of the contradictions of the antebellum South. An attorney of some renown, Netherland had won much of his reputation as a defender of the rights of Melungeons and of "free people of color." Some histories report that in 1859 Netherland secured the Melungeons' right to vote in state and Federal elections, although no records remain of such a voting case in that year. Will T. Hale and Dixon L. Merritt, A History of Tennessee and Tennesseeans (Chicago: Lewis Pub. Co., 1913), 180.
81. A "slaveholder of high social standing," Netherland nonetheless supported the Union before the Civil War; later, he counseled leniency toward ex-Confederates. Henry H. Ingersoll, Biographical Sketch of Col. John Netherland (Nashville: Marshall & Bruce Co. 1890), in vol. 9
82. and Tennessee Bar Association Proceedings, 233-52.
83. McClung Collection, Biography Folder 4-30, T. A. R. Nelson Papers, Knox County Public Library, Knoxville, Tenn [KCPL]. When Tennessee cracked down on "free people of color" in the 1830s, limiting the rights of slaves to be freed and then requiring freed slaves to leave the state, Netherland apparently tried to ameliorate the new laws. A Democratic Party circular from the 1840s excoriated Netherland for his efforts to "repeal so much of the act of 1831, concerning free persons of color, as requires the emancipator of slaves to remove them without the limits of the State." Facts from The Record! Col. Netherland as a Legislator, Democratic State Central Committee Pamphlet 51 of 78 pamphlets bound by T. A. R. Nelson as Speeches, Documents, etc., 1848-60 v. 4, McClung Collection, KCPL.
84. Jack v. Foust, Trial Transcript, Chancery Court of Hamilton County no. 1431 (Nov. 1877), East Tennessee Supreme Court Records, Box 1789, available at Tennessee State Archives, Nashville, Tennessee [TSA]. This trial record was found by an archivist in an uncatalogued box; the year of the trial was several years later than Lewis Shepherd had remembered it, and Betsy Bolton, the heir, was not named as a litigant, hence the difficulty finding the case in Hamilton County files. Personal Memoirs of Judge Lewis Shepherd (privately printed, Chattanooga: 1915).
85. Personal Memoirs of Judge Lewis Shepherd, 83.
86. Zella Armstrong, The History of Hamilton County and Chattanooga, Tennessee (Johnston City, Tenn.: Overmountain Press, 1931), 1:224-25.
87. Jack v. Foust, Deposition of Lucinda Davis, 51, 54-55. Subsequent references in the text to depositions and page numbers are to this trial transcript.
88. Jack v. Foust., 324-36; Personal Memoirs of Judge Lewis Shepherd.
89. Bolton v. Foust, Hamilton County Court Records, Chattanooga, Tennessee (1872).
90. J. Douglas Smith, "The Campaign for Racial Purity and the Erosion of Paternalism in Virginia, 1922-1930: 'Nominally White, Biologically Mixed, and Legally Negro,'" Journal of Southern History 68.1 (Feb. 2002): 65-106, at 87.
91. Letter of August 5, 1942, W. A. Plecker, M.D., to Secretary of State, Nashville, Tennessee, available at TSA.
92. Letter of August 12, 1942, Mrs. John Trotwood Moore to W. A. Plecker, available at TSA.
93. Letter of Aug. 20, 1942, W. A. Plecker to Mrs. John Trotwood Moore. Archivists at the Library of Congress also tried to classify the Melungeons, along with other "Mixed-Blood Racial Islands," in 1946. William Harlen Gilbert, Jr., "Memorandum Concerning the Characteristics of the Larger Mixed-Blood Racial Islands of the Eastern United States," Social Forces 24.4 (May 1946): 438-47.
94. N. Brent Kennedy with Robyn Vaughan Kennedy, The Melungeons: The Resurrection of a Proud People; An Untold Story of Ethnic Cleansing in America (Macon, Geo.: Mercer University Press, 1998).
95. Quoted in Sider, Lumbee Indian Histories, 164-67,
96. Hamilton McMillan, Sir Walter Raleigh's Lost Colony: An Historical Sketch of the Attempts of Sir Walter Raleigh to Establish a Colony in Virginia, with the Traditions of an Indian Tribe in North Carolina. Indicating the Fate of the Colony of Englishmen Left on Roanoke Island in 1587 (Wilson, N.C.: Advance Presses, 1888), 41.
97. George E. Butler, The Croatan Indians of Sampson County: Their Origin and Racial Status; A Plea for Separate Schools (Clinton, N.C.: s.n., 1916), 31.
98. According to Butler, "The Croatan Indians comprise a body of mixed-blood people residing chiefly in Sampson, Robeson, Bladen, Columbus, Cumberland, Scotland, Richmond and Hoke Counties, in North Carolina; and in Sumpter, Marlboro and Dillon counties, South Carolina. They are called Red Bones in South Carolina, but probably belong to the same class of people as those residing in North Carolina" (9).
99. Testimony of J. C. M. Eachin, Transcript of Trial, McMillan v. School Committee, No. 16,384, 26-27, N.C. Dept. of Archives & History, Raleigh, N.C., Supreme Court Records. Appeal reported in 12 S.E. 330 (N.C. 1890).
100. 12 S.E. 330, 332.
101. School for Indians of Robeson County, Hearings before the Committee on Indian Affairs, House of Representatives, Feb. 14, 1913, 17-19.
102. Indians of North Carolina, Letter from the Sec'y of the Interior, Report on the Condition & Tribal Rights of the Indians of Robeson, 1915, 33. "The existence of a peculiar people, claiming Indian ancestry and nominally distinct from negroes and whites, has not prevented such admixture as to confuse every inquirer who has undertaken to solve their relations and the numbers of those rightfully claiming any defined racial distinctions, but it has made certain districts a refuge for men of all races who preferred the half wild life of the woods to regular labor, or who preferred the bullet to the slow forms of law to settle difficulties" Ibid, at 35.
103. Goins v. Trustees Indian Training School, N.C. Supreme Court, Fall Term 1915, #296, Robeson County, trial record 8.
104. Robesonian (August 10, 1914: 1), quoted in Lumbee Petition, 133.
105. Paul Campbell Research Notes, Exhibit 143. Rhode Island State Archives, Narragansett Indians 43, December 1831 Resolution Messrs Dan King & B. B. Thurston, Committee relative to Indians, 448-50, 465.
106. 1-1-14, 1825-1832 Exhibit 144, January 1832, Rhode Island State Archives, Narragansett Indians 89, Letter To the Honorable General Assembly of the State of Rhode Island & Providence Plantations, to be holden at Providence in said State, on the second Monday of January in the year 1832: 478, 484.
107. 1-1-17, 1851-1862 Exhibit 342 Report of the Committee on Indian Tribe made to the General Assembly, October 1852, 1185.
108. Exhibit 346 Report of the Commissioner on the Narragansett Tribe of Indians made to the General Assembly, January 1858, 1195.
109. Exhibit 658 Bartlett's, Rhode Island Miscellany, Volume 6, page 2214 The Narragansett Indians, Dec. 1866 pp. 28-29.
110. See also Memorial To the Honorable General Assembly of the State of Rhode Island, January Session, AD 1867 ("... Under the present organization of society, we do not wish to be citizens. For we know we cannot be so in the full acceptation of that term." Samuel Rodman).
111. Jan. 1880 Act to abolish the tribal authority and tribal relations of the Narragansett Tribe of Indians.
112. Box 3 1864-1976, 1-1-1 1864-1870, Report of the Committee of Investigation; A Historical Sketch and Evidence Taken, made to the House of Representatives at its January Session, AD 1880 (Providence: Freeman & Co., 1880), p. 6.
113. Appendix B: Evidence taken by the Committee of Investigation, on the Narragansett Tribe of Indians, at three public meetings, held in the town of Charlestown, 1879, First Meeting, pp. 32-34.
114. 1st Ann. Report of the R.I. Commission on Narragansett Indians, 1881, Appendix B, Second Meeting, p. 57.
115. F. 7 1934-35, Pow-wows, Narragansett Tribe incorporates-Providence Journal, Dec. 4, 1934.
116. Indian Office File No. 150, Re Location, History, Government, Language Etc. of the Narragansett Indians, 1935.