The Lucero case is part of a line of cases dealing with the status of Pueblo Indians that made it to the Supreme Court. In 1877, the Court sided with the New Mexico judges in finding that Taos Pueblo Indians were not “Indians” in the general sense of the word’s usage in federal policy.78 Quoting at length from the New Mexico court’s ruling, the Supreme Court emphasized that the fact that Pueblo Indians had been citizens under the Mexican Republic made them distinctive from other Indians. This led the Supreme Court to uphold the Pueblo Indian community-owned land grants (which Congress had earlier confirmed), even though, during this same period, Congress and the Court were reluctant to certify similar collectively owned grants for Mexican communities. A provocative bifurcation had begun taking shape with American rule: Mexican Americans were allowed to claim white status and have many political rights, but they were losing their communally owned lands to the American property regime. At the same time, Pueblo Indians were defined as non-white and virtually excluded from the political system, while their community land grants were confirmed. This definition of Pueblo status continued until 1913 when the Supreme Court heard another case involving Pueblos, this time deciding that they should receive the federal protections of Indian status.79
Mexican American Elites and Blacks, Free and Enslaved
Miguel Antonio Otero was born into a wealthy ranching family in Valencia County, New Mexico, in 1829. His paternal grandfather was Antonio José Otero, whom Kearny had appointed as one of three judges during the early weeks of the U.S. Army’s invasion of New Mexico. Some biographers claim Otero’s parents were born in Spain,80 but if this was the case, they were, indeed, exceptional. Ramón Gutiérrez’s research into Catholic marriage records reveals that of 13,204 people legally married in New Mexico between 1693 (after the Pueblo Revolt resettlement) and 1846, a mere 10 individuals listed their parents’ birthplace as Spain.81
Otero was seventeen years old when the Americans invaded New Mexico, so he was among the first generation of Mexican Americans to come of age under American rule. He spoke English fluently, which at that time was rare even among Mexican elites. Otero attended college in St. Louis and New York, studied law in Missouri, and returned to New Mexico in his early twenties. He quickly mounted a political career, first as a representative of Valencia County in the 1852 and 1853 territorial legislature (where he was among the youngest members) and then as New Mexico’s nonvoting delegate to Congress from 1855 to 1859 (winning election to two consecutive two-year terms).82 Otero was an outspoken Democrat during his years as the nonvoting delegate to Congress, aligning himself politically and socially with southerners.83
While living in Washington, D.C., Otero married Mary Blackwood of Charleston, South Carolina, whose father was a slaveholder.84 Otero and Blackwood went on to have several children, including Miguel Antonio Otero II, who in 1897 became the only Mexican American appointed governor during the sixty-four-year territorial period. Otero’s brother-in-law, William Blackwood, was appointed to the territorial supreme court.85 In the years before the Civil War, Otero took a strong proslavery stand and used his influence to persuade New Mexico legislators to enact a slave code in 1859.86 After secession, however, Otero was more circumspect about New Mexico joining the fledgling Confederacy. In an 1861 letter written early in the Lincoln administration and published in the Santa Fe Weekly Gazette, Otero seemed genuinely wrought over the question and ultimately recommended siding with California:
If a dissolution of this country should take place, we of New Mexico will be expected to take sides with one of the two or three or four of the Republics into which it would be divided. What will be the determination of the people of New Mexico if such deplorable consequences should come to pass, I cannot say. My own opinion and my counsel to them would be, in that event, a union with the Pacific free states, west of the great prairies. If California and Oregon declare their independence of this Government I am for joining them.87
On the other hand, Otero may simply have been preserving his options with a Republican administration; Lincoln appointed him secretary of the territory in 1861.88
Whereas Mexicans and Pueblo Indians lived near each other, shared much in common culturally, and regularly competed with each other over material resources such as land and water, Mexicans had little interaction with African Americans. As discussed in the previous chapter, black slaves imported into Mexico in large numbers during the Spanish colonial period and their descendants became part of the racially mixed population that settled the northern frontier. Frontier dynamics as well as those that characterized the Spanish-Mexican racial order generally led to the deliberate “disappearance” of black Mexicans into the general mestizo population. By the time of the American colonization, the 1850 census recorded only twenty-two blacks in New Mexico; ten years later, there were sixty-four.89 The census records did not distinguish, so we do not know whether New Mexico’s blacks were slaves or free persons, but their small numbers suggest that New Mexico’s legislative politics around slavery and the rights of free blacks were mostly about symbolic politics. The actions taken by Mexican elites regarding blacks did not reflect competition with them over resources; rather, they should be seen as primarily signifying other contemporary debates and an understandable preoccupation with Euro-Americans as an audience.
In the 1850s, New Mexico legislators switched from an antislavery to a proslavery position. The conventional interpretation is to link this shift from an antislavery to a proslavery position to the politics of statehood. From the end of the war in 1848 until 1911, when Congress finally recommended statehood for New Mexico and Arizona, a significant segment of elites (both Mexican and Euro-American, but probably predominantly Euro-American) had pushed almost continuously, within New Mexico and nationally, for statehood.90 According to the standard explanation, New Mexico elites took an antislavery position when they felt it would improve their chances of being admitted to the Union, and then shifted to a proslavery position when they felt their odds improved as a slave state. The argument is rarely made with respect to the majority of legislators and convention delegates who were Mexican, but is instead attributed to Euro-American elites in New Mexico and in Congress. For example, historian Loomis Ganaway claims that antiblack legislative acts “reflected the growing influence of southerners in territorial politics. During the next three or four years, their control was tightened by the alignment of Miguel Otero, territorial delegate from 1855–1861, with southern political leaders and institutions.”91 Ganaway’s use of the passive voice to discuss Otero is consistent with his attribution of important political shifts in New Mexico politics to Euro-American political actors (in New Mexico and nationally) and to national issues. Other historians are not quite as extreme but share his general approach.92
Missing from this interpretation, however, is serious attention to how Mexican Americans themselves constructed their interests, in either symbolic or material terms. An exception is the analysis of Estévan Rael-Gálvez, whose analysis takes seriously the interests and strategies of Mexican political elites. He argues that Mexican legislators enacted a slave code that legalized black chattel slavery in order to better protect their real interest in slavery—the enslavement of Indians taken captive from nomadic tribes and sold into Mexican households. Rael-Gálvez cites a letter written by Territorial Secretary Alexander Jackson (the likely author of New Mexico’s 1859 Slave Code) in which he states, “We have assured the Mexicans that [passage of a slave code] would protect their own system of peonage.”93 Both the conventional interpretation related to statehood politics and Rael-Gálvez’s argument linking a proslavery position and Mexicans’ interest in maintaining Indian slavery are important, but they do not exhaust the possible explanations.
Given the fragility of Mexican Americans’ claim to whiteness, Mexican elites’ actions regarding African Americans can credibly be seen as a means of distancing themselves from the group undeniably at the bottom of the American racial order. At the time of the
initial American occupation, Mexican Americans were well aware of Euro-Americans’ presumptions of racial superiority and concomitant Mexican inferiority. In the following decade, Euro-Americans allowed Mexican elites to claim white status in the political sphere, while inequality remained entrenched in the social sphere. But the questions that plagued Congress and the rest of America at the outset and conclusion of the war with Mexico still lingered: Where do Mexicans fit? Are they more like blacks or Indians? Mexican elites, too, were well aware of these questions, and Euro-Americans’ potential answers to them likely shaped their attitudes toward black slavery.
Early under American rule, majority-Mexican legislative bodies took antislavery positions. In the first constitutional convention (held in October 1848, only a few months after Congress had ratified the Treaty of Guadalupe Hidalgo), Father Martínez presided over thirteen delegates, ten of whom were Mexican.94 They staunchly opposed slavery with the following resolution: “We do not desire to have domestic slavery within our borders; and, until the time shall arrive for admission into the union of states, we desire to be protected by Congress against the introduction of slaves into the territory.”95 In 1850, the proposed state constitution said that New Mexico would join the Union as a free state; in a popular vote on that constitution, 6,771 New Mexican men voted in favor, with only 39 against.96 In the first postwar legislature (which met in 1848, after ratification of the Treaty of Guadalupe Hidalgo but well before Congress declared New Mexico a federal territory in 1850), a majority-Mexican legislature, with Father Martínez as president, banned slavery. This antislavery sentiment likely reflected Mexico’s historic opposition to African slavery (recall that Mexico abolished slavery thirty-three years before the United States), as well as ongoing hostilities with Texas. For example, in the 1848 resolution to Congress, the clause immediately preceding the antislavery provision stated: “We respectfully but firmly protest against the dismemberment of our territory in favor of Texas or from any other cause.”97 Hostilities between New Mexico and Texas existed for decades (and still persist in some quarters), and some historians have credited animosity toward Texans as fueling Mexican Americans’ anti-Confederacy position in the Civil War.98
Seen in this light, the early antislavery positions by the majority-Mexican conventions and legislatures could have been anticipated, but the shift to a proslavery position in the late 1850s would not have been. In 1857, the territorial legislature enacted a law severely restricting the rights of free blacks.99 The heart of the law was a thirty-day restriction on the presence of free blacks and mulattos in New Mexico, with the first offense punishable by fine and imprisonment and increasing in severity to “hard labor” if the free black person refused to leave New Mexico. As if that restriction was not severe enough, the law required free blacks and mulattos already in New Mexico to “give bond for their good conduct and behavior . . . with two or more honorable securities.”100
The same law banned marriage and cohabitation between black men and white women. We can presume that Mexican men would have intended to include Mexican women within the category of “white women.”101 The latter move is especially interesting given the widespread, historic marriage, cohabitation, and/or reproduction between Indians and Spanish descendants. In other words, “miscegenation” between Mexicans and Indians was widespread and at least implicitly condoned by the movement of descendants of Indian-Spanish unions into the general mestizo category. Yet the law specifically banned another kind of mestizo union: black/Mexican. Given the small numbers of identifiable blacks, it was feasible to prohibit black/white sexual unions in a way that would have been impossible for other interracial unions—further suggesting the symbolic aim of the Mexican American legislature.102 Historian Neil Foley notes a different pattern in Texas. There a miscegenation law banned white/black marriage, and, as in New Mexico, Mexicans were legally defined as white. Yet Mexican/black marriages in Texas were rarely prosecuted because the social definition of Mexicans as non-white superseded the legal definition. In other words, in Texas, “white” meant “white, not Mexican.”103
In 1859, two years after the law targeting free blacks was passed, a nearly unanimous legislative body composed of thirty-four Mexicans and three Euro-Americans enacted a slave code.104 Titled “An Act to Provide for the Protection of Property in Slaves in This Territory,” the law imposed stiff criminal penalties for stealing slaves, assisting slaves in escape, or otherwise inducing them to leave their masters. It also made it illegal for free persons to gamble with slaves, to sell or give them weapons, and to trade or do business with them. New Mexico’s slave code included provisions for private individuals and public officials to deal with runaway slaves, constituting a mini-version of a fugitive slave law within the slave code. Like many slave codes of the era, the law imposed more severe sentences on slaves convicted of crimes than those provided for by the general penal code; for example, it imposed the penalty of hanging for the rape or attempted rape of a white woman by a slave or free black or mulatto. Like the black codes enacted two years earlier, the slave code banned marriage between “white persons” and blacks, free or slave (this time without regard to gender). In the first provision of its kind in New Mexico, the slave code prohibited blacks, free and slave, from testifying “against a free white person” in any court of law. While such laws were commonplace in the South and in California, New Mexico had no prior racial restrictions on witnesses.105
Within a decade, then, Mexican elites went from supporting abolition to enacting a harsh and comprehensive slave code. They went from little concern about African Americans to enacting a “black code” that all but locked free blacks out of New Mexico. New Mexico’s laws suddenly became as harsh as those of the southern states (in the case of the slave code) and “the early old northwest states” (Illinois, Indiana, Ohio) that enacted so-called black codes to deal with increases in their free black populations.106 The irony here is that while Illinois, for example, enacted a black code in reaction to a 258 percent increase in its population of free blacks between 1820 and 1830,107 New Mexico enacted its law when there were fewer than one hundred blacks in a geographic area that spanned all of present-day New Mexico and Arizona. Rather than being motivated by fear of being overrun by free blacks or competition over land or labor, something else was at work. The historical record makes it hard to avoid the conclusion that these harsh laws reflected the preoccupation with pushing Mexican Americans up the racial hierarchy and keeping blacks at the bottom. Both laws contained miscegenation clauses that protected the “white” daughters and sisters of Mexican elites (although the black code also punished those “white”/Mexican women who transgressed the color line). The slave code banned blacks’ testimony against whites at a time when Mexican Americans dominated juries as enfranchised citizens. In these ways, the laws served to brighten the line between Mexicans as white and blacks as non-white.
In 1857 the U.S. Supreme Court issued its infamous Scott v. Sandford opinion, deciding that neither free Negroes nor slaves had federal citizenship (which we will discuss further in the next chapter). According to historian Don Fehrenbacher, the public reaction to the case was divided into three streams:
Most conspicuous by far was the roar of anger and defiance from antislavery voices throughout the North. . . . From southerners, in contrast, came expressions of satisfaction and renewed sectional confidence at this overdue vindication. . . . Meanwhile, northern Democrats and certain other conservatives were . . . [relieved] at the settlement of a dangerous issue and [delivered] pious lectures on the duty of every citizen to accept the wise judgment of the Court.108
Otero, then New Mexico’s congressional delegate, wrote a series of letters about the Court’s decision. In a letter to territorial secretary Alexander Jackson in 1858, Otero wrote:
I know that the laws of the United States, the Constitution, and the decision of the Supreme Court in the Dred Scott case, establishes property in slaves in the Territories, but I think something shoul
d be done on the part of our Legislature to protect it. You will perceive at once the advantages that will result from the passage of such a law for our Territory, and I expect you will take good care to procure its passage. Immediately after its passage, you will dispatch copies to all the principal newspapers in the Southern States for publication, and also a copy to the New York Herald “very quick.”109
It is difficult to gauge reactions to the opinion at the time in New Mexico. My review of surviving newspapers of that time, for instance, did not uncover any mention of the opinion in the New Mexico press. But in a promotional letter written by five Mexican American lawmakers shortly after passage of the 1859 slave code, the decision surfaces as one of the factors that convinced New Mexico legislators of the need to act to support slavery.110 That letter and Otero’s letter provide support for the conventional analysis. A Supreme Court decision widely viewed as pro-South and proslavery signaled the direction of the political winds (and, in many scholars’ opinions, was one of the catalysts for secession and the Civil War). Otero’s letter speaks of benefits to New Mexico of siding with the South, which could be interpreted to mean the potential for Congress’s grant of statehood as a slave state.
But the Supreme Court’s opinion must have caused alarm to those in New Mexico who had been genuinely committed to an antislavery position. It was a resounding statement of the official exclusion of blacks (free and slave) from the polity and from all but the minimum sense of citizenship. In such a climate, we can imagine Mexican elites feeling they had to distinguish themselves from this pariah group and enacting the slave code to do just that. Both interpretations probably intersect to explain what motivated Mexican American elites to switch from an abolitionist to a proslavery position. We should not forget, however, the link between black slavery and Indian slavery that was identified by Rael-Gálvez.111 The last sentence of the New Mexico slave code passed by the majority-Mexican legislature in 1859 made it clear that the law did not affect the question of Indian slavery: “[T]his act shall in no manner apply to relation[s] between masters and contracted servants in this Territory, but the word ‘slave’ shall only apply to the African race.”112 It is to the issue of Indian slavery that we now turn.
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