Classification of Indian Families & Related Laws
Prior to 1850 the federal census and most county tax books only distinguished 4 types of persons; free white males, free white females, free persons of color, and slaves. By the record keeping of the time Indians not taxed were not supposed to be recorded at all. These non-taxed Indians supposedly lived on reservations and therefore were not required to be subject to federal census or county tax recordings. However, the inhabitants of many state reservations and some federal Indian land grants were recorded on these documents.
In 1705 the Virginia Legislature passed into law that "the offspring of an Indian and a White is a Mulatto." This law went on to state that if the half-Indian 'mulatto' was to marry a white person then that 'mulatto' and his or her offspring were to be legally regarded as 'white' (this is undoubtedly where the notion that a person should be of at least ¼ blood to be considered an Indian arose). The Virginians were using the word 'mulatto' in its historical usage, from the root word 'mule', meaning any crossbreed. With the independent formation of the lower southern states, each state adopted racial classifications roughly equivalent to that of Virginia. Florida's official race laws stipulated that any mixed-blood person, whether of white/Negro, white/Indian, Indian/Negro, white/Hispanic, or whatever, were to be legally and socially classified as 'mulatto'.
Prior to 1850 federal censuses were performed primarily for tax and land ownership recording purposes, and most Indians were either not recorded, or included in the 'other free persons' or 'free persons of color' categories. Beginning in 1850, persons contracted to perform the federal census were encouraged to inquire as to person's self-identification due to the fear of "Light skinned Negroes trying to pass them selves off as whites or Indians." Given that there were only three available categories, white, black, or mulatto; that persons who appeared to be obviously mixed-blooded of any kind were to be listed as 'mulatto'; and that persons taxed could not be listed as 'Indian' (who were inherently non-taxed); it is not surprising that there were few Indians recorded east of the Mississippi from 1850 to 1900.
Any Indian person, family, or community not living on well-known reservated areas were more likely to be recorded as mulatto than either Indian or white. In fact, some Indian individuals who were living on land set aside for Indians were still the target of this racial arrow. Recording individuals on a land reserve as mulatto, or otherwise suggesting that the inhabitants mere mixed with Negro blood, was one of the most popular methods used to usurp the natural land rights of an eastern Indian people. The list of tribal remnants who were, at some point, recorded as mulatto include the mixed Creek-Cheraws of Alabama, mixed Choctaw-Chowans of Alabama, Lumbees of North Carolina, Nanticokes of Delaware, and others.
For a perfect example of the confusion suffered by lawmakers attempting
to place these mixed-bloods into some neat category, read this excerpt
from the 1871 North Carolina Joint Senate and House Committee as they
interviewed Robeson County Judge Giles Leitch about the 'free persons
of color' living within his county:
Regardless of the tax or land reasoning behind the 'mulatto' classification, a close examination of other factors can give a clearer picture of a group's social and legal standing. Although members of the Apalachicola Cheraw Indians were marked as mulatto on federal censuses, they were not held to the same legal or social restrictions as free persons of Negro blood. For example, Florida Legislation of 1848 required free Negroes and mulattoes to have a white guardian appointed by the local magistrate and were restricted from owning property. No Cheraw was ever assigned a white guardian, and Jacob and Absalom Scott were both early Florida landowners. Jacob Scott's 160 acres, mill and ferry were valued at $2,000 in 1860, actually making him one of Calhoun County's more prosperous citizens.
As the country hung on the edge of Civil War, the southern white power structure was making huge efforts to disempower and regulate any non-white non-slave persons in their midst. White slave owners feared that "free Negroes, Mulattoes and Indians" held natural anti-slavery sentiment and would support the North should war break out. To encourage free mixed-bloods to move beyond the boundaries of their states, many southern Legislatures approved tax regulations which imposed double taxes on "freepersons of color", required them to pay tax on their wives (a financial burden not imposed on white households) and restricted them from carrying firearms. Every state, which passed these restrictions, was the subject of petitions by Indian individuals and families who felt that they should not be the subjects of such 'free person of color' laws. In 1857, William Chavis was arrested and charged as "a free person of color" with carrying a shotgun, a violation of North Carolina state law. He was convicted, but promptly appealed, claiming that the law only restricted free Negroes, not persons of color. The appeals Court reversed the lower Court, finding that, "Free persons of color may be, then, for all we can see, persons colored by Indian blood, or persons descended from Negro ancestors beyond the fourth degree."
Prior to 1850, the Apalachicola Cheraws were recorded as 'other free persons' or 'free persons of color' on Jackson and Calhoun County tax rolls. In 1856 Florida tax books changed their format from a 'free persons of color' bracket to a 'free Negroes & Mulattos' bracket. At that point, the Cheraws were taxed as 'white'. After the conclusion of the Civil War the tax books changed again, this time with the race of an entire page of taxed persons being listed at the top of the page. On these new books, some of the Cheraw head of households are taxed as 'white', some are taxed as 'colored', and the Scott families were listed on a separate page with no racial header.
Often the tax records of Jackson and Calhoun disagree with the racial classification of Cheraws recorded on the federal census. Taxed as 'free persons of color' Jacob Scott and his wife Polly Harmon are recorded as 'white' on the 1850 census, and then later as 'mulatto' on the 1860. Francis E. Hill and his wife Elizabeth Scott are first censused as 'white' in 1850, then as 'mulatto' in 1860, while Francis Hill was consistently taxed as 'white'.
As has been discussed by many scholars, the 'Indian' stereotype was already prevalent among eastern whites as early as the 1850's. The typical understanding among southern whites was that all Indians had longhair, did not speak English, and, most importantly, all lived out west. Eastern Indian descendants were known to have varying hair colors and textures, varying eye colors, and a wide range of skin complexions, even as early as the 1700's, most probably due to intermarriage with early Spanish, French, and English traders. Most officials were at a loss when trying to categorize these people into a social structure that allowed for only two races, black and white.
An excerpt from the 1910 petition of the 'Croatan' Indians of Sampson County, North Carolina, shows the prevalent attitude of southern whites towards mixed-blood Indians:
"Since 1868, the white people in Sampson County, as a rule, have classed these Indians with the Negroes and refused to accept them except as Negroes. They have consequently been forced, in a measure, with the Negro race, but they steadfastly refused to be classed with Negroes. They have refused to attend the churches and the schools of the Negroes or to co-mingle with them on terms of social equality. It is marvelous that they have been able to maintain their racial status so well under the adverse social and political status which has been forced upon them by the white people."
Physically described over the years as "darkskin-dark hair-dark eyes",
"mixed-blooded almost white", "at the least mixed-blooded","Caucasian-Indian"
and to quote the Jackson County School Superintendent "
their appearance can very easily be considered as belonging to the white
of course possible that they might have a large percentage of
Indian blood."; we must take all of the evidence as a whole, boil
it down, and come to a conclusion. The Apalachicola Cheraw were considered
to be persons of Indian ancestry, and were not legally or socially held
to the restrictions of bearing Negro blood.