Monday, October 6, 2008

Indians and Law in Territorial Washington

As Americans established control of what was Washington Territory in the 1850s, what legal status was provided for the American Indians?

I was searching today to see if the laws of the State of Washington are online. What I found were bits and pieces, not a comprehensive legal record but some valuable information. One treasure is the Laws of Washington, Volume 1, 1854-1862. This is part of the Classics in Washington History online collection provided by the State Library. "This digital collection of full-text books brings together rare, out of print titles for easy access by students, teachers, genealogists and historians," and will be the subject of future posts here. Today, I did a keyword search for "Indians" through this collection of early laws and got some fascinating results.

This 1854 law lists persons "not competent to testify" in the civil actions:

Later on the laws specify who may testify in criminal matters, and here there is more leeway for Indians to speak: "Witnesses competent to testify in civil cases shall be competent in criminal prosecutions, but regular physicians or surgeons, clergymen or .priests, shall not be protected from testifying as to confessions, or information received from any defendant, by virtue of their profession and character; Indians shall be competent witnesses as hereinbefore provided, or in any prosecutions in which an Indian may be a defendant. " (302)

On the other hand the laws specify that "the property of all Indians" is exempt from taxes (p. 526) and a law governing the construction of wharves and regulation of watercraft emphasizes that "No part of this act shall be construed as applying to Indians, or to the property of Indians." (p. 556)

An 1854 "Act to Regulate Marriage" declares "That all marriages hereafter solemnized in this Territory, where one of the parties to such marriage shall be a white person, and the other possessed of one-fourth or more of negro blood, or more than one-half Indian blood, are hereby declared void." Any official who married such a couple was subject to a fine of between 50 and 500 dollars, to be paid to the common schools. In an apparent afterthought, Section 3 of the law states that "nothing in this act shall be so construed as to prevent any parties from being united in marriage, who may be living together at the time of the passage of this act." (651-52) This seems designed to allow established mixed race couples, who had perhaps been married for years in the Indian fashion and had children together, to legalize their ties.

An act authorizing county assessors to take the census directs them to "make separate lists of all taxable half breed Indians, negroes, kanaka [Hawaiians -ed.], and mulatoes, and chinamen" in their counties. (704)

Overall the laws paint a picture of white Washingtonians as eager to define citizenship in racial terms with a limited place for American Indians.

3 comments:

Bill Youngs said...

it is interesting that the prohibition on intermarriage applied to a white person's marrying someone who was "more than" one half Indian. So given the exception for Indian-white partners already living together, such marriages were declared legitimate as were marriages between the children of such marriages and whites. This must have been a concession to the fact that many of Washingtons earliest settlers did partner with Indians.

Larry Cebula said...

I think that is exactly right, Bill. The part you cite seems to me almost an after thought--"Hey, what about all those mixed families around Fort Vancouver and Colville?" Section 3--"nothing in this act shall be so construed as to prevent any parties from being united in marriage, who may be living together at the time of the passage of this act"--seems another after thought so as not to void the fur trade era marriages, most of them conducted in the native fashion and invisible to American law.

Craig said...

Interesting. A grandfather clause that doesn't mention grandpa. Interesting to me because of an 1860 census in Ohio where my great great great grandfather was the enumerator for five townships along a river that Delaware Indians had occupied since the French and Indian War. I've got a 1902 reunion picture from Indiana that features one of his daughters, her husband of fifty years and their ten children. Three of their seven daughters, including my great grandmother, look at least part Indian. They were all officially white after 1860.