Mixed Race Studies

Legal Transplants: Slavery and the Civil Law in Louisiana

University of Southern California Legal Studies Working Paper Series
Working Paper 32
May 2009
37 pages

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

Can Louisiana tell us something about civil law vs. common law regimes of slavery? What can the Louisiana experience tell us about a civil law jurisdiction “transplanted” in a common-law country? Louisiana is unique among American states in having been governed first by France, then by Spain, before becoming a U.S. territory and state in the nineteenth century. Unlike other slave states, it operated under a civil code, first the Digest of 1808, and then the Code of 1825. With regard to the regulation of slaves, these codes also incorporated a “Black Code,” first adopted in 1806, which owed a great deal to both French and Spanish law. Comparisons of Louisiana with other slave states tend to emphasize the uniqueness of New Orleans’ three-tier caste system, with a significant population of gens de couleur libre (free people of color), and the ameliorative influence of Spanish law. This reflects more general assumptions about comparative race and slavery in the Americas, based on the work of Frank Tannenbaum and other historians of an earlier generation, who drew sharp contrasts between slavery in British and Spanish America. How does the comparison shift if we turn our attention away from slave codes, where Tannenbaum focused, to the “law in action”? At the local level, one can see the way slaves took advantage of the gap between rules and enforcement, and to fathom racial meanings at the level of day-to-day interactions rather than comparisions of formal rules. This essay surveys three areas of law involving slaves – manumission, racial identity, and “redhibition” (breach of warranty) – to compare Louisiana to other jurisdictions, and particularly to its common-law neighbors.

…The first major slave codes in the North American colonies date to 1680-82. They draw numerous distinctions on the basis of race rather than status, including laws against carrying arms and against leaving the owner’s plantations without a certificate. A penalty of thirty lashes met “any Negro” who “lift up his hand against any Christian.” In 1691, English women were fined for having a bastard child with a negro. In 1705, all mulatto children were made servants to the age of 31 in Virginia; Maryland and North Carolina adopted the same rule within the next several decades.

By the time the U.S. became a republic, only those of African descent were slaves, and all whites were free. Yet there were a significant number of individuals and entire communities of mixed ancestry with ambiguous racial identity along the Eastern seaboard. In the southeast, Indian tribes both absorbed runaway slaves and, in the late eighteenth century, adopted African slavery. In addition to the 12,000 people designated in the Census as “free people of color” in Virginia, there were 8000 in Maryland in 1790, 5000 in North Carolina, 1800 in South Carolina, and 400 in Georgia…

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“The Caucasian Cloak”: Mexican Americans and the Politics of Whiteness in the Twentieth-Century Southwest

The Georgetown Law Journal
Volume 95, Issue 2
Pages 337-392

Ariela J. Gross, Professor of Law and History
University of Southern California Law School

The history of Mexican Americans and Jim Crow in the Southwest suggests the danger of allowing state actors or private entities to discriminate on the basis of language or cultural practice. Race in the Southwest was produced through the practices of Jim Crow, which were not based explicitly on race, but rather on language and culture inextricably tied to race. This Article looks at three sets of encounters between Mexican Americans and the state in mid-twentieth-century Texas and California—trials involving miscegenation, school desegregation, and jury exclusion—to see the way in which state actors used Mexican Americans’ nominal white identity under the law to create and protect Jim Crow practices. First, it argues that whiteness operated primarily as a “Caucasian cloak” to obscure the practices of Jim Crow and to make them appear benign, whether in the jury or school context. If Mexican Americans were white, then they were represented so long as whites were represented. Second, it demonstrates that Mexican-American civil rights leaders as well as ordinary individuals in the courtroom did not simply identify as white; some showed a more complex understanding of “Mexican” as a mestizo race, and others pointed to the idea of race as a status produced by racist practice. Mexicans were nonwhite if they were treated as nonwhite under Jim Crow. Finally, it argues that, at least in twentieth-century Texas and California, cultural discrimination was racial discrimination, and that continuing discrimination on the basis of language ability and other cultural attributes should be scrutinized carefully under antidiscrimination law…

Table of Contents

INTRODUCTION
MEXICAN-AMERICAN WHITENESS BEFORE 1930
A. THE NINETEENTH CENTURY
B. WHITE BY TREATY—IN RE RODRIGUEZ
C. SEX ACROSS RACIAL BORDERS: POPULAR AND LEGAL IDEAS OF THE “MEXICAN RACE”

II. THE POLITICS OF WHITENESS IN THE 1930S AND 1940S
A. JIM CROW IN THE SOUTHWEST
B. MEXICAN-AMERICAN ORGANIZATIONS AND POLITICS

III. LITIGATING MEXICAN-AMERICAN WHITENESS
A. THE 1930S SCHOOL AND JURY CASES
B. THE 1940S SCHOOL AND JURY CASES

IV. AFTER HERNANDEZ V. TEXAS: LIFTING THE CAUCASIAN CLOAK
A. FROM HERNANDEZ V. TEXAS TO CISNEROS
B. LA RAZA COSMICA

CONCLUSION

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“Of Portuguese Origin”: Litigating Identity and Citizenship among the “Little Races” in Nineteenth-Century America

Law and History Review
2007
Volume 25, Number 3

Ariela J. Gross, John B. and Alice R. Sharp Professor of Law and History
University of Southern California

The history of race in the nineteenth-century United States is often told as a story of black and white in the South, and white and Indian in the West, with little attention to the intersection between black and Indian. This article explores the history of nineteenth-century America’s “little races”—racially ambiguous communities of African, Indian, and European origin up and down the eastern seaboard. These communities came under increasing pressure in the years leading up to the Civil War and in its aftermath to fall on one side or the other of a black-white color line. Drawing on trial records of cases litigating the racial identity of the Melungeons of Tennessee, the Croatans/Lumbee of North Carolina, and the Narragansett of Rhode Island, this article looks at the differing paths these three groups took in the face of Jim Crow: the Melungeons claiming whiteness; the Croatans/Lumbee asserting Indian identity and rejecting association with blacks; the Narragansett asserting Indian identity without rejecting their African origins. Members of these communities found that they could achieve full citizenship in the U.S. polity only to the extent that they abandoned their self-governance and distanced themselves from people of African descent.

Historians have only begun to tell the histories of “red and black” peoples in the United States, and much of their attention has focused on the “Black Indians” of the Five Civilized Tribes of the Southeastern United States. Yet up and down the eastern seaboard, there were clusters of people who shared African, European, and Indian ancestry, many of whom lived as distinct and separate communities into the nineteenth and even the mid-twentieth centuries, some retaining or struggling to retain Indian identities, others becoming known as “free people of color,” and still others claiming whiteness.

These “little races,” as they were sometimes known, in many ways gave the lie to the binary statutory regimes of nineteenth-century America. They came under growing pressure from local officials and neighbors as communities became increasingly preoccupied with racial line drawing. But they followed very different paths. By studying these racially ambiguous communities, it is possible to learn more about the relationship among whiteness, blackness, and citizenship in the United States…

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What Blood Won’t Tell: A History of Race on Trial in America

Harvard University Press
October 2008
384 Pages
Hardcover ISBN 13: 978-0-674-03130-2; ISBN 10: 0-674-03130-X
Paperback ISBN 13: 978-0-674-04798-3; ISBN 10: 0-674-04798-2

Ariela J. Gross, John B. and Alice R. Sharp Professor of Law and History
University of Southern California

• Co-Winner 2009 James Willard Hurst Prize, Law and Society Association
• Co-Winner 2009 Lillian Smith Book Awards, the Southern Regional Council and the University of Georgia
• Winner of the 2009 American Political Science Association Award for the Best Book on Race, Ethnicity and Politics

Is race something we know when we see it? In 1857, Alexina Morrison, a slave in Louisiana, ran away from her master and surrendered herself to the parish jail for protection. Blue-eyed and blond, Morrison successfully convinced white society that she was one of them. When she sued for her freedom, witnesses assured the jury that she was white, and that they would have known if she had a drop of African blood. Morrison’s court trial—and many others over the last 150 years—involved high stakes: freedom, property, and civil rights. And they all turned on the question of racial identity.

Over the past two centuries, individuals and groups (among them Mexican Americans, Indians, Asian immigrants, and Melungeons) have fought to establish their whiteness in order to lay claim to full citizenship in local courtrooms, administrative and legislative hearings, and the U.S. Supreme Court. Like Morrison’s case, these trials have often turned less on legal definitions of race as percentages of blood or ancestry than on the way people presented themselves to society and demonstrated their moral and civic character.

Unearthing the legal history of racial identity, Ariela Gross’s book examines the paradoxical and often circular relationship of race and the perceived capacity for citizenship in American society. This book reminds us that the imaginary connection between racial identity and fitness for citizenship remains potent today and continues to impede racial justice and equality.