Visibly Invisible: TribalCrit and Native American Segregated Schooling

McMillan v. the School Committee of District No. 4 (1890): Negro . . . Not Indian

The first case, McMillan, was decided in North Carolina in 1890. As such, it joins several pre–Plessy v. Ferguson (1896) cases that laid the groundwork for the “separate but equal” doctrine. It also reveals the troubling relationship between Black and Indigenous communities in Robeson County, North Carolina. During this case, Robeson County was “famously tri-racial” and maintained three district schools: one White, one “colored,” and another Native American (Wertheimer et al. 2011:476). The Indian schools, created in 1885 under the Croatan Act, were for “those . . . who claim to be descendants of the friendly tribe of Indians known as Croatans” (McMillan 1890:613). Before the act, Croatan children attended the colored school. Shortly before trial, the state legislature amended the law to expressly exclude “all negroes to the fourth generation” from White and Indian schools (McMillan 1890:613). Excluding Black children from both Indian and White schools could imply parity between Whites and Indians but most likely reflects unity in their collective antiblackness.

Nathan McMillan, whose wife was Croatan and home was within the district of the Croatan and colored schools, sent his children to the Croatan school. On August 18, 1888, he received a note from the school dismissing his children because they were Negro (Baily 2008:92). McMillan ignored the order and continued to send his children to the school until the administrators refused entry. He requested admission from the superintendent, who issued an order to accept the McMillan children. Even after presenting the note, the school refused again, arguing that before the act, Croatans were mulattoes, not Negro. The McMillan children, the school argued, were neither Croatan nor mulatto and, therefore, ineligible. That is when McMillan filed suit. While the court does not offer a legal definition of mulatto, the McMillan children, who were of mixed racial background, certainly fit the social “commonsense” definition of mulatto argued in courts at that time (Omi and Winant 1994).

In his complaint, McMillan argued not that separate schools were unconstitutional, only that the school improperly classified his children by race. Evidence introduced at trial, however, showed that McMillan was a former slave whose father was White and mother Black, thereby making him Negro “within the fourth degree.” McMillan countered that he was mulatto, not Negro, making him the same racial background as Croatans. As further proof, “McMillan’s son was ‘exhibited to the jury’ so that they might make a judgment on his racial background” (Baily 2008:95). Examining previous case law that relied on “ocular evidence,” I can surmise it was to provide visible evidence that his son appeared more phenotypically Croatan or mulatto than Black (Gross 2008; Haney Lopez 1996). The appeals court subsequently agreed that the McMillan children, because of their father, were Negro, not Indian. In this case, the odious one-drop rule prevailed.

McMillan affirms the mixture of issues related to race, sovereignty, and political power, outlined in tenets 3, 4, and 6. A significant part of the opinion is an affirmation of the right for the State of North Carolina to maintain separate schools and prohibit interracial marriage. Judge Avery, in the majority opinion, wrote,

We think the Legislature was not prohibited by the Constitution from providing separate schools, to be governed by committees of their race and taught by teachers selected by such committees, for those persons now residing in Robeson Country who claim to be descendants of the friendly tribe of Indians known as Croatans . . . [and] shall give to the children of the white and colored races equal educational advantages but in separate schools . . . (McMillan 1890:613)

Legally, then, McMillan could challenge only his children’s racial classification. In this case, the court upheld the Croatans’ right to determine tribal membership and school admission. However, it seems the Croatans used and benefited from laws that maintained White supremacy. The law, for example, did not prohibit children of White/Croatan mixed backgrounds from attending Croatan schools. It seems then that the Croatans were racialized favorably in position above Blacks and yet asserted a political identity that still placed them below Whites. The court and Croatan nation erased the McMillan children’s Croatan identity. Instead of affirming the McMillan children’s tribal membership, the not-so-friendly Croatans’ fought to uphold the “fourth-degree” provisions even though their mother was Croatan. The judge, in support of the Croatans, repeatedly excoriated the superintendent for initially “forcing” the Croatan school to admit the McMillan children, explaining that he infringed state law, which allowed for separate schooling. McMillan represents one case, three racialized/political identities, and one outcome that upheld the Black/White divide.

Crawford v. School District No. 7 (1913): Wholly White

Approximately 20 years later, William Crawford filed suit in Oregon state court on behalf of his two daughters, Naoma (age 8) and Juanita (age 9). The sisters attended a White school for two years. Then, in 1912, the school board established a separate school for “Indian children and children that were part Indian” (Crawford 1913:390). Once the school board created an Indian school, school officials directed a teacher to refuse the sisters’ admission because they were “part Indian” (Crawford 1913:393).

Crawford and his wife admitted, and the school stipulated, that they both had fathers who were White and mothers who were Indian. However, Crawford also provided evidence that they did not live on the nearby reservation and had “voluntarily adopted the customs, usages and habits of civilized life” (Crawford 1913:390). According to the Dawes Act, this made them U.S. citizens and, therefore, eligible to attend the White schools. The Oregon Supreme Court compelled the school to admit them, declaring, “These children are half white, and their rights are the same as they would be if they were wholly white” (Crawford 1913:395).

Once again, the plaintiffs did not question the constitutionality of separate schools or attempt to prove they were White. Instead, they argued that their children were citizens and therefore allowed to attend the White school. Nonetheless, the court dedicates the remainder of the opinion to make it clear that separate schools, while constitutionally authorized, still required state legislation. In its opinion, the court advises,

The states may enact laws proving for the establishment of separate schools for colored children, whether black or red, but such schools must be equal . . . but in this state we have no statute expressly providing for the establishment of separate schools for colored children. (Crawford 1913:397)

Because no state law existed allowing for the creation of separate but equal schools, the school board did not have the authority to create a separate Indian school. By 1922, however, the state legislature, dominated by members of the Ku Klux Klan, ensured that local school boards were granted such power (Horowitz 1999).

The Crawford decision demonstrates the penalty when local politics attempt to usurp state authority. Though Plessy was a national precedent, Oregon had not passed formal legislation giving local school boards the authority to create segregated schools. The school board in Crawford overstepped its role when it established an Indian school without legislative authority. The Crawford decision upheld that until the state legislature created laws that allowed the plaintiffs to be treated as Indians, the Crawford children were “wholly white.”

At that time, the prevailing belief was that assimilation would save the “savage” (tenet 6). Historian Paige Raibmon (2005:183) calls this practice the “one-drop rule of civilization.” Unlike African Americans, where the one-drop rule would immediately preclude an individual from certain rights and privileges, the one-drop of rule civilization promised the privileges of citizenship and, in the Crawford case, admittance into White schools, generating a racial and political identity (tenet 3). The one-drop rule of civilization, however, served another nefarious purpose. It allowed the state of Oregon to slowly, and incrementally, dismantle Indigenous nations to the benefit of the U.S. government (tenet 2). Those who took advantage of the Dawes Act were required to surrender membership in order to be “rewarded” for assimilating.

In the Crawford case, however, it seems that the court was providing a solution to the school board more than it was rewarding Crawford’s assimilation. Therefore, in addition to highlighting legislative authority, the overall message was clear: pass legislation first and then create separate schools. Until then, these children are White.

The court’s failure to “protect whiteness” for the sake of establishing legislative authority reveals a narrative not captured in traditional CRT or TribalCrit. Neither the racial nor the political identity of the Crawford family posed as much of a threat as rogue school boards and improperly prepared petitions. Crawford’s legal identity as “wholly white,” then, was only temporary. Once the legislature passed laws for segregated schooling, the school board could force the Crawford children to attend the Indian school.

Moreau v. Grandich (1917): “Slight Strain of Red Blood”

The next case, Moreau, decided by the Mississippi Supreme Court, appears to be a traditional racial project. However, introducing Indigeneity provides an example of the inconsistent and contradictory nature of racializing Native Americans. This case involved the Grandich children, who were denied entry because they were classified as colored and found to be more than “one-fourth Negro.” The Grandich family put forth two arguments. First, the school board overstepped its authority in determining the children’s racial classification at all and under any circumstances. Second, if the school board did have the authority, then the children were classified incorrectly.

They acknowledged that the laws governing education did designate separate schools for “children of white and colored races.” However, the Grandiches, under Mississippi marriage laws, were recognized as White since it was illegal to marry someone with one-eighth or more Negro blood. If they were White by marriage, then the children were White by birth. The school board disagreed and argued that determining the race of a child lies within administrative purview. The lower court, however, agreed with the Grandich family and compelled the school to admit the children.

The school appealed, but the appellate court also agreed with the Grandich family’s argument, explaining that if they are White under marriage law, then they are undoubtedly White under the education law. In response, the school board appealed to the state supreme court. The attorney for the school devoted a great deal of argument to explicitly defining colored, relying mostly on “usual common acceptation of said word” (Moreau 1917:560). Quoting the Standard Dictionary, the attorney argued that colored was defined as “[o]f a dark-skinned or noncaucasian race; specifically, in the United States. Of African descent, wholly or in part” (Moreau 1917:560).

Grandich and his wife claimed that they were White with only “a slight strain of red blood,” and as such, their children were entitled to attend the White school nearest their home. They also argued that their expulsion from the school “resulted in irreparable damages, humiliation, and disgrace, being classed as members of the colored race” (Moreau 1917:572).

To prove they were not colored, testimony centered on the race of their great-grandmother, Christiana Jourdan. They argued that she was an Indian woman married to a White man and that her descendants intermarried with Whites. The children, their attorney argued, “are as fair as members of the white race, and there is nothing in their personal appearance to indicate the presence of negro blood” (Moreau 1917:575).

The school board presented evidence that Christiana was “Negro, classed and associated with the negroes at church and other social gatherings” and that two of her daughters intermarried with negroes” (Moreau 1917:573). Witnesses said that her appearance was “griff,” or “a shade lighter than negro,” and that, “she had negro hair, was dark or ginger-cake color, and that she associated . . . with negroes exclusively” (Moreau 1917:573). Furthermore, when she and her children attended church, they “sat with the negroes” (Moreau 1917:573).

The court made two conclusions. First, the judges determined that the marriage statute had no bearing on the separate-school statute. “Both sections,” the court explained, “reflected the purpose of the Constitution makers to provide for a separation of the races in the state” (Moreau 1917:574). The marriage statute, on the other hand, was created to prevent “the evils of bastardy from falling upon children” (Moreau 1917:574). Under the separate-school provisions, the court held,

The Constitution makers must be assumed to have used those [racial] terms according to their fixed and settled meaning in this country. The word “white” . . . means member of the white or Caucasian race, and the word “colored” means, not only negroes, but persons who are of the mixed blood. (Moreau 1917:574; emphasis mine)

Therefore, the state supreme court reversed the decision and excluded the Grandich children from attending the White school based on their mixed blood.

While Grandich refers to “red blood,” the opinion never indicates the family’s tribal affiliation. Because the case originated in Hancock County, it was likely referring to the Choctaw Tribe of Mississippi. Before the case, the Choctaws were fighting for federal recognition on behalf of “full-blooded Mississippi Choctaws, speaking the Choctaw language” (Osburn 2014:43). The Choctaws of Mississippi, however, were far from “full-blooded,” and many did not know the language. The Gulf Coast Progress, a Mississippi newspaper, argued that the Choctaw “represented all shades and colors, running from the real Indians to the coal-black, thick-lipped, flat-nosed, kinky-headed Negro” (Osburn 2014:45; emphasis mine). Similarly, in the eyes of the court, there was no distinction between Black and Choctaw. Grandich’s mixed blood was enough to disqualify his children as White.

The Moreau case involves biological determinants of “blood,” phenotypic differences, and social associations. In this case, the lengths the school would go to maintain segregated schools are noteworthy. The fact that witnesses were testifying as to the lifestyle, behaviors, skin color, and associations of a great-grandmother is, similar to McMillan, an example of racial performance and the law (Gross 2008). The great-grandmother allegedly performed whiteness in her daily activities. However, the court focused more on “evidence” of her blackness. The court also accepted testimony describing her as “griff,” which it agreed was “a cross between a mulatto and a negro” (Moreau 1917:435). It seems then that the Grandich family were attempting to attribute a mixed-race identity to an Indian, not Black, heritage.

Moreau also reveals a significant contradiction in the racial logic of the Jim Crow South. The Grandich family attorney argued, persuasively, that if the parties were declared White enough to marry because they were “less than one-eighth Negro,” then why were their children not White enough for school, which required “less than one-fourth Negro?” In Mississippi’s fervor to prevent “amalgamation of the races,” it unwittingly left open a loophole for school integration.

What also makes this case particularly unusual is how to classify it and analyze it through TribalCrit. Is Moreau an Indigenous case? Unlike McMillan and Crawford, this case did not involve separate Indian schools, nor did it challenge the constitutionality of segregated schooling. The school board and subsequent court opinion argued that the Grandiches were Negro. Grandich, however, claimed an Indian racial identity though not a tribal identity. Ergo, I classified this case as Indigenous based on the plaintiff’s claims rather than the school’s.

While this case also seems more like a traditional racial project, adding the dynamic of Indigenous/Black relations of Mississippi still makes it a colonizing racial project because the courts racialized Choctaw identity and Black identity as the same. Like McMillan, this case exposes another example of the failure of TribalCrit to acknowledge the antiblackness represented in these cases. The plaintiffs in Moreau attempt to racialize themselves as White in order to avoid a Black classification, which ultimately feeds into the White supremacy that TribalCrit seeks to expose and dismantle. According to tenet 8, “Stories . . . are real and legitimate sources of data and ways of being.” What happens when a story and ways of being reveal an undesirable part of a colonizing racial project? Perhaps this case is a reminder for TribalCrit and race theorists to accept all stories, including the problematic ones.

Piper v. Big Pine (1924): Citizenship versus Race

This next case, decided by the California Supreme Court in 1924, exemplifies tenets 2, 3, and 6 because it (1) involves the Dawes Act, an example of U.S. policy rooted in imperialism and White supremacy; (2) provides an example of the liminal space Indigenous peoples occupy; and (3) applies governmental and educational policies that require assimilation. In this case, Pike and Annie Piper filed suit on behalf of their daughter, Alice (age 15). Six other students joined the suit. The school board argued that an Indian school established by the federal government was “in all respects . . . equal” to the White school and was “better adapted to the education of members of the Indian race” (Piper 1924:668).

The attorneys for Alice presented evidence, and the board conceded, that she “has been a person of good habits and character, in good physical health, and that she is in need of and desirous of obtaining” the education offered by the public school (Piper 1924:666). As a result, the board could not argue that, under California law, she was a child of “filthy or vicious habits, or . . . suffering from contagious or infectious diseases” (Piper 1924:666). Still, the board did argue that according to the laws governing the education,

[s]chool districts in California where the United States government has established an Indian school, or in an area not to exceed three miles from the said Indian school, the Indian children of the district or districts, eligible for attendance upon such Indian school, may not be admitted to the district school. (Piper 1924:667)

Therefore, because a suitable and “equal” Indian school was available, Alice was required to attend the Indian school. The school board had the law on its side because Ward v. Flood established the “separate but equal” doctrine in 1874. They also argued that there were plenty of private schools for the Pipers to consider. Finally, they argued that admitting Alice would increase the attendance of other Indian children, “who cannot be cared for because of the economic or administrative problem which it will create” (Piper 1924:674).

Her attorneys, via the Dawes Act, found a way around the state law to justify her admission. The court ultimately found, “She is the descendant of an aboriginal race whose ancient right to occupy the soil has the sanction of nature’s code” (Piper 1924:671). U.S. policy, the judge explained, “has been, so far as feasible, to promote the general welfare of the American Indian even to the point of exercising paternal care” (Piper 1924:671; emphasis mine). Under the Dawes Act, the Pipers were both U.S. and California citizens because they maintained “a residence separate and apart from any tribe of Indians . . . and [have] adopted the habits of civilized life” (Piper 1924:672). Because they were U.S. citizens and lived apart from the reservation, Alice was entitled to admission. Alice and her fellow litigants integrated the school the following year (see Figure 1).

OPEN IN VIEWER

Figure 1.

Big Pine School integrated, approximately 1925. Courtesy of Big Pine Paiute Tribe of the Owens Valley and Big Pine Unified School District. Top (left to right): Weldon Bartels, Hank Houghton, Charlie Conners, Blanch Steward, Ken Steward, and Marvin Steward. Middle (left to right): Alice Piper, John Davito, Banta, Jeff Tibbets, and Thelma Cornel. Bottom (left to right): Ike Baker, Maxine Brown, Albert Cuddubac, Myrtle George, and Ward Rogers.

Even though the court refers to the Pipers’ “aboriginal race,” it never, like the previous cases, specifically names their tribal membership. However, six years after the case, the Pipers, according to Office of Indian Affairs (OIA) records, claimed membership in the Paiute Tribe of Inyo County, California. Pike, the father, was designated as having a half degree of “Indian blood” because his mother was full Paiute and his father was White. Annie, the mother, according to her records, was full Paiute. ⁶

From the opinion of the case, it sounds as if the Pipers had separated themselves from all tribal affiliation. The court record reflects that they had “adopted civilized habits” without explaining what those habits entailed other than living off the reservation. As demonstrated by their 1930 OIA tribal application and subsequent interviews with officers of the Owens Valley Big Pine Paiute Tribe, the Pipers maintained a deep connection to their Paiute community. Not only did Alice maintain a residence on the reservation, but she and her parents were also buried in the tribal cemetery. This is telling because it seems to be an example of Native Americans utilizing their liminal identity to their advantage by complying with the Dawes Act for legal purposes while maintaining tribal ties in practice.

Of all the cases, Piper is the only one that directly challenges segregation. Instead of making an argument based on race, however, it establishes Alice’s right to attend the White school on the federal promises of citizenship. The court decided Piper at a time when the country was experiencing significant shifts in Indigenous policies. First, there was the passage of the 1924 Native American Citizenship Act declaring all Native Americans, regardless of tribal affiliations, U.S. citizens. Second, according to Blalock-Moore (2012), enrollment in government Indian schools in California had dropped by 25 percent by 1920, and the government stopped reimbursing public schools that accepted Indigenous students. This “perfect storm” of state policy, federal policy, structural changes in education paved the way for this case.

Piper reveals yet another difference between the experiences of Native Americans and other racial groups. Recall that the court recognized the state’s responsibility to exercise “paternal care” (Piper 1924:671). While not cited in Piper, the idea of “exercising paternal care” was a 100-year-old legal precedent set in 1831 by the Marshall Court in Cherokee Nation v. Georgia. In that case, the U.S. Supreme Court characterized the relationship between the government and Indigenous tribes as that of a “ward to its guardian” (Cherokee 1831:17). The Piper court explained that when an Indian “has shown an inclination to accept the advantages which our civil and political institutions offer, [we must] permit him to enjoy them on equal terms with ourselves” (Piper 1924:671; emphasis mine). Providing a clear example of a colonizing racial project and tenet 6, our and ourselves in this sentence represent the guardian’s call for the ward to embrace assimilation and tribal disaffiliation.

Peters v. Pauma (1928): Race versus Land

The last case, Peters v. Pauma School District, occurred in 1927 in California. The father, Max Peters, filed suit on behalf of his son, Wesley. Because of the Piper decision, the school district could not deny Wesley admission based on his Indigenous identity. Instead, it argued that it could deny him admission because he lived on a reservation and was required to attend the reservation school. If the court determined that the family did not live on a reservation, then the public school, under Piper, would be required to admit Wesley. So, the leading legal question, in this case, was, “Who owned the land?” This was the only case where the U.S. government deliberately interfered with local politics by filing an amicus brief.

The court reviewed the history of “ownership,” noting that it was “originally a large Spanish Grant” passed on to the Mexican government in 1844. The land was then “patented” as “planting grounds for the use and benefit of said Indians” (Peters 1928:577). In 1889, the land grant passed to Francis Mora, who, in 1899, quitclaimed it to the federal government “for the use and benefit of the Mission Indians” (Peters 1928:577).

The court found that the family lived on the reservation but lived “in the manner of other American citizens in the vicinity” (Peters 1928:793). Like Piper, the record does not outline what “the manner” means. On appeal, the government argued that Peters did not live on a reservation and was, therefore, according to Piper, allowed admittance to the White school.

The government also argued that the Mission Indians were not federally recognized even though they were “allowed to” live on and use the land for agricultural purposes. The school district argued that because the Mission Indians lived on the land for so long, it was in fact and practice a reservation. The court disagreed, holding that only an act of Congress, treaty, or executive order could establish a reservation. “Custom or prescription,” it explained, does not constitute ownership (Peters 1928:794).

This particular case exemplifies tenets 2 and 4 showing how the material gain of land trumps race, tribal autonomy, and self-identification. The school was trying to exclude Peters, arguing that he lived on the reservation. However, Peters and the government argued that he did not live on a reservation and adopted a “manner of American citizens.” If the court had held that the land was a reservation, it would have allowed the Mission Indians to claim ownership, gain federal tribal recognition, and hold the government to its legal responsibilities. Land, as the saying goes, is supreme.

Analyzed through TribalCrit, the Peters decision compresses decades of the colonization between the United States, Mexico, and Native Americans and is an example of Indigenous peoples attempting to “forge tribal sovereignty, tribal autonomy, self-determination, and self-identification” (tenet 4). According to the Pauma Indians’ official website, the California Indians’ Jurisdictional Act of 1928, and organizations like the Mission Indians Federation, led to litigation for compensation of lands lost due to the un-ratified treaties,” but the Great Depression made this process more difficult. (Pauma Band of Luiseño Indians n.d.). It seems, then, that if the court recognized the land as a reservation and the Mission Indians as a nation, then it would have paved the way for litigation. In this particular case, racial boundaries are not so impenetrable that they can prevent or supersede the power of land ownership.