The Other Slavery (47 page)

To understand the intentions and values of the framers of this legislation, one has to begin with the free labor ideology that developed in the
1850s and emerged triumphant at the end of the Civil War. The elections of November 1864 not only gave Lincoln a landslide victory for a second term but also produced a Congress solidly dominated by Republicans and former Free-Soil Party members deeply committed to the ideal of a nation of free workers. Republicans had almost unanimous control of the Senate and a three-fourths majority in the House of Representatives. These men did not agree on a single definition of free labor, but they believed in the superiority of free over slave labor. Perhaps the closest they came to a common understanding of free labor was their insistence that every man should be “entitled to the fruits of his labor.” They repeated this phrase over and over like a mantra, beginning with President Abraham Lincoln, who had become the greatest ideologue and most conspicuous advocate of free labor. In speeches and writings, Lincoln emphasized how northerners were “neither hirers nor hired,” but instead worked “for themselves, on their farms, in their houses, and in their shops, taking the whole product to themselves, and asking no favors of capital on the one hand, nor hirelings or slaves on the other.” The ideal of a nation of self-reliant men who owned their own plots of land, tools, and animals resonated powerfully with a president who had grown up working on small farms in Kentucky, Indiana, and Illinois. After winning the war, Lincoln and the Republican majority in Congress intended to extend this bountiful system to the entire nation. As Republican leader and textile entrepreneur Edward Atkinson of Massachusetts affirmed, it had been “a war for the establishment of free labor, call it by whatever name you will.”
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These advocates of free labor first had to secure passage of the Thirteenth Amendment. They had little trouble in the Republican-controlled Senate, but in the House of Representatives, the Democratic minority was able to block the bill because of the two-thirds majority required to pass a constitutional amendment. On January 31, 1865, the Thirteenth Amendment came up for a second vote after frantic negotiations. When the final tally was announced, it had passed with only two votes to spare, 119–56. The spectators in the gallery broke into cheers. “Members joined in the shouting and kept it up for some minutes,” wrote a congressman in his journal. “Some embraced one another, others wept like children.
I have felt, ever since the vote, as if I were in a new country.” To many Americans, the passage of the Thirteenth Amendment represented the dawn of a new era.
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Yet the struggle over free labor proved far more protracted than anticipated. In 1865–1866 southern states enacted the infamous Black Codes aimed at restricting the freedom of former slaves. Adopting tried-and-true tactics such as vagrancy laws, convict leasing, and debts, white southerners sought to nullify the provisions of the Thirteenth Amendment. The Mississippi legislature was the first to introduce these meas-ures, which were quickly copied, sometimes word for word, in South Carolina, Georgia, Florida, Alabama, Louisiana, and Texas. Mississippi’s Vagrancy Act of 1865, for instance, required that “all free negroes and mulattoes over the age of eighteen carry written proof of employment.” Without such a document, a free black would be immediately deemed a vagrant and hired out to any white man willing to pay the $50 fine incurred by a convicted vagrant. “Free negroes” could also be convicted for “mischief,” “insulting gestures,” and the “vending of spirituous or intoxicating liquors.” These forms of labor coercion harked back to the eighteenth century or were copied from labor arrangements that existed in other parts of the country. In either case, the similarities between the new labor regime that emerged in the South and the other slavery that prevailed in the West are remarkable. Indian captives, servants, and peons in Utah, California, New Mexico, or Yucatán would have instantly recognized the purpose and spirit of the Black Codes. African slavery may have been abolished, but the methods of the other slavery were spreading to the South.
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Partly to counter the Black Codes, Congress passed the Civil Rights Act of 1866, which extended to all males in the United States, “without distinction of race or color, or previous condition of slavery or involuntary servitude,” the same rights enjoyed by white citizens. The idea was to give former slaves the tools to fight against the labor practices that came to replace formal slavery. They would be able to sue in court and generally enjoy the same legal protections of their persons and property as whites. Several legislators believed that the Thirteenth Amendment and Civil Rights Act of 1866 were sufficient to free blacks. After all,
the Thirteenth Amendment was categorical in prohibiting “involuntary servitude.” As Justice Samuel Miller explained in 1873, “The word ‘servitude’ is of larger meaning than slavery . . . and the obvious purpose was to forbid all shades and conditions of African slavery.”
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Free labor advocates and congressmen could see that coercive labor practices also existed in the West, and some of them intended to take their crusade into that region. Yet as they turned westward, they faced both internal disagreement and external opposition, particularly from the Supreme Court. The first question was whether the Thirteenth Amendment could be extended to peoples other than African Americans. The Supreme Court took up this issue in the landmark Slaughter-House Cases (1873). Justice Stephen Field argued for an expansive interpretation of the term “involuntary servitude” to include such varied practices as “serfage, vassalage, villenage, peonage, and all other forms of compulsory service for the mere benefit or pleasure of others.” Justice Field boldly stated that the Thirteenth Amendment was intended “to make everyone born in this country a freeman . . . and [able to] enjoy the fruits of his labor.” However, the man who wrote the majority opinion, Justice Samuel Miller, held for a more restrictive understanding. He affirmed that even though “only the fifteenth amendment mentions the negro by speaking of his color and his slavery, it is true that each of the other articles [Thirteenth and Fourteenth Amendments] was addressed to the grievances of that race, and designed to remedy them, as the fifteenth.” Only hypothetically did Miller contemplate the possibility that “if Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment [Thirteenth] may safely be trusted to make it void.” Miller’s view was that the Thirteenth Amendment was intended chiefly to end slavery in the South, and a majority of the justices concurred with him.
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As various legal scholars have noted, in the Slaughter-House Cases and others, such as the Civil Rights Cases of 1883, the Supreme Court moved steadily to restrict the scope of the Thirteenth Amendment. Wary of the expansion of national power at the expense of the states, the highest court in the land interpreted the Thirteenth Amendment increasingly as a narrow rule that applied to a dwindling number of
situations. By the turn of the century, that “grand yet simple declaration of the personal freedom of all of the human race within the jurisdiction of this government” had become largely a historical relic.
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The Civil Rights Act of 1866 and the Fourteenth Amendment in 1868 also failed to bring relief to Native Americans held in bondage. These statutes protected and conferred citizenship rights on “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” but quite crucially excluded “Indians not taxed.” As early as the U.S. Constitution of 1787, “Indians not taxed” had been excluded from population counts to determine the apportionment of the House of Representatives and comprised all Indians residing on reservations or living on their own, in bands or individually, in unsettled regions of the United States. Only those who had left their Native communities and joined the majority society were counted as “taxed.” It boiled down to a distinction between “wild” and “civilized” that deprived the vast majority of Native Americans of basic citizenship rights and protections. According to the census of 1870, only eight percent of American Indians were classified as “taxed,” and even that small minority were eventually stripped of their citizenship rights.
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In 1880 John Elk, a Winnebago Indian who had left his reservation to live in Omaha, Nebraska, tried to register to vote. The case brought on his behalf eventually reached the U.S. Supreme Court, which ruled against him. The majority opinion in
Elk v. Wilkins
(1884) held that the question of whether “any Indian tribes, or any members thereof, have become so far advanced in civilization that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship” had to be decided by the nation as a whole “and not by each Indian for himself.” In other words, the existing legislation did not grant citizenship to any Indian. In a strongly worded dissent, Justice John Marshall Harlan accused the majority of creating “a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power . . . are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States.” It would not be until the Indian Citizenship Act of 1924 that Congress
unequivocally offered federal citizenship to all Indians living in the United States.
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Congress thus failed to eradicate the other slavery of the West through constitutional amendments. It was a major defeat for the free labor advocates and radical Republicans who held power immediately after the Civil War. Resorting to federal appointments and piecemeal legislation to address the plight of the Indians, they were able to achieve only mixed results.

California, for instance, was a major bastion of the other slavery in the 1850s and early 1860s. Indians had to demonstrate that they were legally employed or face charges of “vagrancy,” which would result in compulsory work awarded to the highest bidder for a period of four months. Natives convicted of crimes were regularly leased to whites who paid their bail. Most jarringly, thousands of Indian children were awarded to white families as “apprentices.” According to the Act for the Government and Protection of Indians of 1850, any white person could go before a justice of the peace and secure the “custody, control, and earnings” of an Indian minor as long as the “parents or friends” gave their consent. What is more, an amendment to the act introduced in 1860 eliminated the need to secure this consent and required only the assent of the “person or persons having the care or charge” of the Indian child in question. This resulted in more kidnapping parties roaming the Golden State to obtain suitable children and murder their parents, as well as the intensification of the Indian wars in the early 1860s.
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To counter this Indian slave trade, President Lincoln appointed a fierce abolitionist named George M. Hanson as superintendent of Indian affairs for northern California. Hanson did not mince words, calling the apprenticeship system “virtual slavery,” denouncing the “unholy traffic in human blood and souls,” and recognizing that the market for Indians was at the root of the ceaseless conflict with the Natives of California. Superintendent Hanson appointed citizens to monitor the activities of kidnappers in the countryside and worked with local and state courts to bring slavers to justice. He also waged his campaign in the court of public opinion. In 1862 Hanson secured the apprehension and conviction of George H. Woodman, who was caught transporting sixteen Yuki and
Pomo children as he crossed into Napa County. Woodman’s captives were confiscated, but he was let go with only a slap on the wrist. The kidnapper remained unrepentant. A few weeks later, he tried to explain himself. “I have a lot of Indians living with me from Nearly evry tribe In those mountains,” Woodman wrote to Hanson in an unusually candid letter. “There has bin a Regular skeam of Warfare Carried on against the Indians By the authority of the State for the last 3 years—leaving unprotected thousands of Indian children and the Cheafs of those tribes are anxious that thare ofen Children Shall Liv with the whites . . . and wish me to take charge of the children & Provide them with homs.” Superintendent Hanson released the letter to the press along with his own reply, questioning Woodman’s “philanthropy” and “disinterested benevolence” and challenging him to surrender all his Indian children, whom the superintendent promised to place in good homes at no charge.
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Hanson also worked with the legislature to repeal California’s apprenticeship laws and strike down the provisions that allowed the leasing and whipping of Indian convicts. Achieving these legislative goals proved difficult, however, especially in the state senate, which was controlled by Democrats. At last, the state elections of 1863 brought into power a new coalition of Republicans and free-soil Democrats. Four months after President Lincoln issued the Emancipation Proclamation, the California legislature followed suit by repealing some aspects of the apprenticeship laws. It is tempting to interpret these events as part of an inexorable move toward freedom, but the reality in California was sobering. White households continued to hold Indians by the thousands. Historian Brendan C. Lindsay has compiled the most detailed information about the extent of the apprenticeship system through school district reports. The numbers are astounding. In 1863 no less than 4,500 Indian children under the age of seventeen were still living in white households. Far from decreasing after the legislative changes, the number of apprenticed children actually
increased
to nearly 6,000 in 1864 and remained at that level in 1865. There was a decline in subsequent years, but the practice did not disappear. In the 1870s, the number of Native children living in white households hovered between 1,300 and 1,500—very large numbers considering that California Indians were
vanishing by then. The Golden State was simply unable to eliminate the other slavery.
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