When Did Slavery Really End in the United States?

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Category: Constitutional Law, Federal Indian Law, Legal History, Public
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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.

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