Making Indians 'white': the judicial abolition of native slavery in revolutionary Virginia and its racial legacy.

Author:Ablavsky, Gregory

INTRODUCTION I. THE HIDDEN HISTORY OF INDIAN SLAVERY IN VIRGINIA A. The Origins of Indian Slavery in Early America B. The Legal History of Indian Slavery in Virginia C. Indians, Africans, and Colonial Conceptions of Race II. ROBIN V. HARDAWAY, ITS PROGENY, AND THE LEGAL RECONCEPTUALIZATION OF SLAVERY A. Indian Freedom Suits and Racial Determination B. Robin v. Hardaway: The Beginning of the End 1. The Statutory Claims 2. The Natural Law Claims 3. The Outcome and the Puzzle C. Robin's Progeny III. WHY INDIANS COULD NO LONGER BE SLAVES A. Statutory Interpretation B. Slavery and the Revolutionary Moment C. Making Indians "White" and Free D. The Enslaved Plaintiffs IV. WHITE AND BLACK INDIANS AND THE ERASURE OF THE TRIRACIAL PAST A. Outward from Virginia B. Robin's Lasting Legacy 1. The Virginia Tribes and the Ongoing Struggle for Federal Recognition 2. The Oklahoma Tribes and the Legal Battle over Tribal Membership 3. Indians, Equal Protection, and the Black/White Paradigm CONCLUSION INTRODUCTION

In 1772, George Mason, later famous as the "Father of the Bill of Rights," represented a slave named Robin and eleven other enslaved plaintiffs in the General Court of Virginia, the colony's highest court. (1) The slaves claimed that maternal descent from an American Indian made their enslavement illegal, and Mason marshaled arguments from natural law and statutory history to support that contention. (2) In a terse one-paragraph opinion typical of the era, the court agreed, freeing the plaintiffs and ordering their former master to pay them nominal damages. (3)

Freedom suits were common in colonial Virginia. (4) Although defined as property for almost all legal purposes and denied rights of citizenship, slaves could allege illegal enslavement and sue for their freedom. Courts recognized such claims throughout the slaveholding South from slavery's seventeenth-century beginnings onward; these suits offered one of the few routes to manumission in early America. (5)

The ordinary posture of the Robin v. Hardaway case, though, belied its extraordinary result. The court's decision marked a watershed in the legal history of Virginian slavery; it was the first recorded holding of an Anglo-American court that maternal descent from an American Indian alone established the right to freedom. (6) This outcome was remarkable in the context of early America, where, despite present-day conceptions that all slaves were Africans, Indian slavery was ubiquitous. Indian slaves could be found in all thirteen mainland British colonies in 1772, as well as in the French and Spanish colonies of North America. (7) In Virginia alone, thousands of descendants of enslaved Indians toiled alongside African slaves on plantations. (8) Robin v. Hardaway repudiated this history and deemed the previously common institution illegal in all but a few circumstances, inaugurating a line of cases that culminated in 1806. In the end, Virginia courts concluded that enslaved descendants of Native Americans were "prima facie free," judicially abolishing Indian slavery in Virginia. (9) This precedent spread: throughout the antebellum period, courts in Connecticut, Louisiana, Missouri, New Jersey, South Carolina, and Tennessee all grappled with Virginia's decisions and debated whether maternal descent from American Indians was sufficient to establish freedom. (10)

Explaining this shift in the racial basis of slavery is more difficult than observing it. The Robin court and its successors claimed merely to be engaged in statutory interpretation, and Mason argued for Indians' freedom on the basis of the libertarian principles of the Revolutionary War. (11) This Comment argues, however, that the ultimate grounds for this doctrinal innovation lay deeper, in the changing demographics of early America. Although not the judges' conscious motivation, Robin and its progeny solidified chattel slavery rather than weakening it. By making Indians legally "white" (12) (or "black," as we shall see in some instances), the courts erased a complex triracial past and created instead a society legally divided into the stark categories of free whites and enslaved blacks. This erasure has present-day legal consequences for federal tribal recognition, struggles over tribal membership, and interpretation of the Equal Protection Clause.

To understand the nature of this transformation, this Comment builds on two previously unconnected bodies of scholarship. A growing literature on early American history examines the formerly neglected role of Indian slavery and argues that the institution was far more widespread and important than previously thought. (13) These works rely heavily on court records, deeds, and other legal sources and acknowledge the law's importance in passing, but they neglect the legal historical narrative. By ending their chronologies in the mid-eighteenth century, they overlook the complex judicial debate over the legacy of Indian slavery in revolutionary and antebellum America. (14) By contrast, freedom suits, including those involving plaintiffs claiming Indian descent, have received sustained analysis from legal historians as part of a larger literature on cases of racial determination in which the central and often sole legal issue was a person's racial status. (15) In these instances, faced with the reality of a mixed-race society that rarely aligned with legal categories, courts turned to a variety of methods--appearance, ancestry, science, and reputation--to classify ambiguous individuals, thus laying bare to historical criticism the constructed and arbitrary nature of legal conceptions of race. (16) Robin and its progeny, though, fit uneasily into this conceptual framework. First, as with American legal history more broadly, the current scholarship on racial determination focuses primarily on the period between independence and the Civil War. (17) This periodization ignores the first two hundred years of racial construction in America, making cases such as Robin that grapple with the colonial legal legacy unintelligible. Second, Robin and its progeny were not racial determination cases; their outcomes hinged on the legal consequences of Indian descent, not on the plaintiffs' racial identity--which both sides usually acknowledged as Indian. (18) They were applications of racial ideology, rather than determinations of racial identity.

Since the literature on neither Indian slavery nor racial determination alone provides a complete account of Robin and its context, this Comment draws on both to understand fully the causes and significance of the doctrinal transformation in racial construction that the case epitomizes. In particular, this Comment argues that the racial formations of the antebellum United States cannot be understood without reference to its earlier colonial history. The black/white divide that emerged during the revolutionary period was neither natural nor organic. Rather, it represented a conscious repudiation of an earlier triracial era by a judiciary anxious to reinforce race-based slavery.

To support these contentions, this Comment is divided into four sections. Part I discusses the colonial history of Indian slavery and race in early America broadly and in Virginia specifically. Part II delves more deeply into Robin and its successors, examining the evolution of the courts' reasoning on the legality of Indian slavery. Part III probes the various explanations for the decision to grant freedom to enslaved Indians. Finally, Part IV explores the legacy of these cases in the antebellum United States, as well as the implications for contemporary legal issues surrounding tribal recognition, tribal membership, and the Equal Protection Clause.


    1. The Origins of Indian Slavery in Early America

      The prevalence of African slavery in North America was not inevitable. The fantastic prosperity of Spanish South America rested on forced Indian labor, although Spanish colonists employed labels other than "slavery" for these practices after the crown abolished Indian enslavement in the sixteenth century. (19) Eyeing and envying Mexico and Peru, the first English theorists and colonizers envisioned freeing the oppressed Natives from Spanish tyranny. (20) These newly emancipated Indians, the English dreamed, would gladly work for them, helping create an English empire of prosperity. (21) Yet the realities of Roanoke and Jamestown disappointed colonizers. (22) Too weak to overawe the Algonquians they encountered, English settlers found themselves Indians' dependents, not their masters. They were forced to rely on the tribes for food and basic survival. (23) Far from empires of wealth and power, the first English colonies were wards of Native hospitality.

      These early encounters established the general pattern of interaction even after the settlers gained strength, as independent Native tribes resisted English efforts to reduce them to vassalage. Warfare, not enslavement, was the fate of most recalcitrant Natives, whose susceptibility to European diseases also made them a poor source of labor in English eyes. (24) Yet the desperate shortage of workers in a society whose wealth depended on manpower meant that colonists readily employed Native laborers, where available, in the seventeenth-century colonial economy. (25) Whether the colonists regarded these Indians as nominally free servants or as slaves is unclear and was largely irrelevant, because high mortality rates made such hazy distinctions meaningless. Indians, regardless of status, were bought and sold throughout the Chesapeake for the value of their labor. (26) But as life expectan-expectancy increased, the legal categories became clearer: by 1648, courts in Maryland were making reference to "Indian Slaves." (27)

      Indian slavery remained a small-scale institution localized in the Chesapeake until the late seventeenth century, when a series of conflicts...

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