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Marquette University wrote:WHEN DID SLAVERY REALLY END IN THE UNITED STATES?
By: J. Gordon Hylton
Posted on January 15, 2013
Categories Constitutional Law, Federal Indian Law, Legal History, Public
During the 2012-2013 academic year, Marquette University has sponsored “The Freedom Project,” which was described at the outset as “a year-long commemoration of the Sesquicentennial of the Civil War that will explore the many meanings and histories of emancipation and freedom in the United States and beyond.” Much of the recent focus has been upon the Emancipation Proclamation, which was issued in its final form by President Abraham Lincoln on January 1, 1863, an event described in impressive detail by Professor Idleman in an earlier post.
An interesting question rarely addressed is whether either the Emancipation Proclamation or the subsequently adopted Thirteenth Amendment to the Constitution applied to “Indian Territory.”
By Indian Territory, I refer to that part of the unorganized portion of the American public domain that was set apart for the Native American tribes. More specifically, I use the term to refer to those lands located in modern day Oklahoma that was set aside for the relocation of the so-call “Civilized Tribes” of the Southeastern United States: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole.
These tribes were the only Native American groups to formally recognize the institution of African-slavery. As Southerners, the Civilized Tribes had accepted the institution of African-slavery, and at the outset of the Civil War, African-American slaves made up 14% of the population of Indian Territory occupied by the civilized tribes.
As it turns out, neither document applied to Indian Territory, and consequently, slavery survived in that part of the United States for several months after it was abolished everywhere else with the ratification of the Thirteenth Amendment in December, 1865.
In 1861, the existence of slavery and a common “southern” heritage, combined with a history of disappointing dealings with the United States government, led the Civilized Tribes to side with the Confederacy rather than the Union. Although the tribes’ effort to secure admission to the Confederate States of America as an “Indian” state failed, each of the five Civilized Tribes entered into treaties with the Confederacy that at least kept open the possibility that they might someday be directly incorporated into the new nation.
(Less well-known is that the Confederacy also entered into treaties with the Comanches, Delawares, Osage, Quapaws, Senecas, Shawnees, and Wichitas.)
Many Civilized Tribe members served in uniform in the Confederate Army—and while some individual Native Americans fought for the Union—the loyalties of the tribes was primarily to the South. Most famously, the last Confederate general to surrender his troops to the Union Army was the Cherokee Stand Watie, who commanded an all-Indian brigade.
The Emancipation Proclamation by its own language appeared not to apply to Indian Territory, as it was specifically limited to “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States.” Since Indian Territory was not a “state,” the Proclamation had no impact in Indian Territory, even if they were arguably in rebellion against the national government.
However, the year before, the United States Congress had enacted legislation abolishing slavery in the “territories.” Act of June 19, 1862, ch. 112, 12 Stat. 432. (According to the 1860 Census, small numbers of slave were present in Utah, Nevada, and Nebraska territories, areas that had been opened to slavery by the Compromise of 1850 and the Kansas-Nebraska Act, as well as the Indian-owned slaves in the area that would like become the state of Oklahoma.)
Was it possible that this act had outlawed slavery in Indian Territory? It seems unlikely, given the unique status of the Indian Territory. Although referred to as a “territory,” “Indian Territory” (or “Indian Country” as it was also called) had never been organized as a formal territory (even though it was apparently treated as one for census purposes in 1860.)
Moreover, territories were intended to be proto-states, but in 1862, there is no evidence that anyone in the Congress imagined that the Indian Territory, home to semi-sovereign Indian Tribes, would someday be a state. The problem of Native American tribes coexisting with state governments was what had made the Trail of Tears necessary three decades earlier. Consequently, it was never an actual territory and thus was not one of the areas covered by the 1862 act.
Moreover, subsequent events involving the Cherokees suggest that Native Americans in Indian Territory did not believe that either the 1862 Act or the Emancipation Proclamation had ended slavery in their jurisdiction. In 1862, John Ross, the president of the Cherokee nation, broke with the Confederacy and cast his lot with the Lincoln Administration. Although a majority of Cherokee remained loyal to the Confederacy (and pro-slavery), Ross was able to use his influence on the National Council of the Cherokee Nation to repudiate the treaty with the Confederacy and to abolish slavery in February 1863, slightly more than a month after the issuance of the Emancipation Proclamation. (Pro-Confederate Cherokee, who were concentrated in the southern part of the Cherokee lands, ignored these actions.)
The National Council’s 1863 decision to abolish slavery, if nothing else, illustrated the beliefs of pro-Union Cherokees that neither to Abolition of Slavery in the Territories Act of 1862, nor the Emancipation Proclamation had changed to status of slaves in Indian Territory.
Because of the widespread view that the Tribes were independent sovereigns, physically located in the United States, but not part of the United States, it also seems unlikely that the drafters and ratifiers of the Thirteen Amendment understood that it would end slavery in Indian Territory.
Moreover, the language of the Thirteenth Amendment itself seems to rule out application to the Civilized Tribes. The somewhat awkwardly worded amendment provides that it applies “within the United States, or any place subject to their jurisdiction.” The problem is not with the use of “their.” Until the 1870’s, the United States was commonly referred as a plural noun, even when one was talking about a single entity. .
The problem is that Indian Territory was not within the “jurisdiction” of the United States as that term was understood in the 1860’s. Given that the United States government used the international law device of treaties to deal with all Indian Tribes, including the Civilized Tribes, the Lincoln Administration continued the practice of treating the Indian tribes as though they were separate sovereigns, outside the jurisdiction of the United States.
The Fourteenth Amendment, enacted in Congress the following year, had a similar disclaimer: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” which provided a continuing rationale for treating native-born tribal Indians as non-citizens.
In fact, in 1866, the United States addressed the slavery in Indian Territory issue by entering into new treaties with each of the Civilized Tribes (although the treaty with the Choctaw and the Chickasaw was a joint treaty). Until these treaties, which were signed between March and July and proclaimed in July and August, only the Cherokee had taken steps to abolish slavery. However, in each of the 1866 treaties the tribal signatory acknowledged that slavery would no longer be recognized as a legal institution by the tribe.
If we simply go by the dates on which the Tribes ratified these treaties, slavery in the continental United States came to an end as a legal institution on June 14, 1866, when the Creek Tribe agreed to abandon African-American slavery. The was, somewhat ironically, the day after Congress approved the Fourteenth Amendment.
wat0n wrote:It would be nice if the holiday commemorated when slavery actually ended in the US:
When I read stuff like this, I wonder if this is actually more about the problems white Americans have with their history, and the fact that the current American values don't quite match those prevalent in the 19th century, than slavery itself.
Or maybe I'm just too cynical. At least the dates are not too far apart, that's something I guess.
Potemkin wrote:And Jesus wasn’t born on 25 December. What’s your point?
Potemkin wrote:White Americans? History?
“History is bunk.” - Henry Ford.
Potemkin wrote:Almost nothing is celebrated when it should be. So what?
wat0n wrote:This isn't a religious holiday though. We can actually be historically accurate.
Indeed. But in this case it does show what the motivation is, I think.
Which non-religious celebrations for which we have ample historical evidence would fall into this category? Do you have an example?
Chileans for example celebrate independence on September 18th even though it was formally declared on February 12th several years later, but that's only because the process started on September 18, 1810 (something those involved didn't even realize at the time) and would include even some instances of self-government. So I can see why it would actually make sense to celebrate it on September 18, even if strictly speaking we only became independent on February 12, 1818.
Not that I complain about having a holiday (even though I'd prefer some honesty about why it exists, and historical accuracy), I'm just curious.
wat0n wrote:It would be nice if the holiday commemorated when slavery actually ended in the US:
Potemkin wrote:Yes. The Queen’s Official Birthday celebrations in the UK are not held on her actual birthday. Does anybody in the UK care? No, not really.
Potemkin wrote:Cool story, bro. But seriously, this highlights the fact that history only becomes history in retrospect. At the time, it’s just stuff that happens, which nobody really understands. Dates are only seen as being significant years or even decades later, after the narrative we call “history” has been invented.
Potemkin wrote:As Napoleon once said, history is just a set of lies on which everyone agrees. Everyone agrees that Jesus was born on 25 December, and everyone agrees that Chile gained its independence on September 18, 1810. Why is this a problem?
wat0n wrote:Is that a holiday?
Right, and if Chile had been dissolved or reconquered some time after no one would care about its independence either...
But that's my point, we don't. At least schools teach us when we actually gained our independence, and they do teach we commemorate the start of the process that day.
Potemkin wrote:Yes. We even have a pageant to celebrate it, every year. On her not-birthday. Lol.
Potemkin wrote:Indeed. Which is why the historical past is constantly changing. The ‘meaning’ of the Bolshevik Revolution in October 1917 is not the same as it was when the Soviet Union still existed. The past, in that sense, is just as uncertain and malleable as the future. What we do right now changes the past as well as the future…
Potemkin wrote:Which means that you do agree.
wat0n wrote:That has a very distinct best Korea vibe.
Right, although I'm guessing the Soviets were trying to be accurate about the dates...
Not really, I just prefer honesty.
The way I see it, Juneteenth is not really about the end of Black slavery but specifically about the end of Whites enslaving Blacks, for being Black... Which is not really the same thing.
Potemkin wrote:Not really, no. The ‘October’ revolution was actually in November. So there’s that. Lol.
Potemkin wrote:But there are problems even with honesty - after all, which date is the correct one? As @Scamp and @Pants-of-dog have pointed out, it’s a matter of person judgement as to which date should be celebrated as “the end of slavery in America”.
Potemkin wrote:True, but it’s a convenient fiction. It has to be celebrated on some particular date, and Juneteenth is as good as any other.
wat0n wrote:They could have celebrated it on June 14, since the last treaty with the Tribes was signed on June 14, 1866 according to the article I posted earlier.
The holiday could also be mobile like other American holidays are, e.g. just celebrating it on the 3rd Monday of June, and would subsume both. That has its own purely practical advantages too.
Potemkin wrote:But Juneteenth has more tradition behind it. As a Brit, I can sympathise with that. Lol.
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