The Journal of Negro History, Volume 5, 1920

It appeared that these people had lived without the law, so to speak, in Massachusetts because of their refusal to accept certain regulations which the State desired to impose upon them. By the act of June 25, 1811, the governor was authorized to appoint three persons to be guardians of the Indian, Mulatto and Negro proprietors of Gay Head, which guardians, in addition to the usual powers given to functionaries in such cases, were empowered to take into their possession the lands of Indians, and allot to the several Indians such part of the lands as should be sufficient for their improvement from time to time. The act further provided for the discontinuance or removal of the guardians at the discretion of the governor and council.[140 - The Laws of Massachusetts, 1811.] Under this act three guardians were appointed and in 1814 the Indians became dissatisfied with their guardians, who resigned, and the guardianship disappeared.

In 1828 there was enacted another measure providing that whenever the Indians and people of color at Gay Head should by a vote in town meeting accept that act and should transmit to the governor an attested copy of the vote, the governor might then authorize the guardian to take up his duties at Gay Head, and might upon their request, appoint suitable persons to divide their lands. As the Indians had unpleasant recollections of the guardian-system, they never accepted that proposal. For about thirty years they were without any guardians, and their affairs, except that of the public schools, were left to themselves.

It appears, however, that the mere provision for the appointment of a guardian was not the only objectionable feature of the Act of 1828. The guardian was given power to "punish, by fine not exceeding twenty dollars, or by solitary imprisonment not exceeding twenty days, any trespasses, batteries, larcenies under five dollars, gross lewdness and lascivious behavior, disorderly and riotous conduct, and for the sale of spirituous liquors within the territory, or on the lands of these Indians and people of color.[141 - Documents printed by order of the Senate, 1861, No. 96, pp. 38-39.] The guardian or other justice of the peace might issue his warrant directed to the constable of the Indians and people of color, or other proper officer, to arrest and bring before him, any offender against the provisions of this act; and after judgment, he might order execution to be done by said constable or other proper officer; and if the guardian or other justice of the peace should adjudge any offender to solitary imprisonment, such offender should not, during the term of said imprisonment be visited by, or allowed to speak with any person other than the jailer, or the guardian or justice of the peace or such other person as the guardian or justice of the peace should specially authorize thereto; nor should such offender be allowed any food or drink other than coarse bread and water, unless sickness should, in the opinion of a physician, render other sustenance necessary,"[142 - Laws of Massachusetts, 1828.] "With such a provision in the Act," said J. M. Earle, "making a discrimination so odious and unjust, between themselves and other prisoners, the Indians would have been greatly wanting in self-respect had they accepted it. It is a provision disgraceful to the statute book of the State, and discreditable to the civilization of the age. Yet two tribes, the Chappequiddick and the Christiantown, were made subject to the provisions of this law, without the power to accept or reject it, and are governed by it to this day"[143 - "Sixty-six out of the whole number of the tribe, at the time of the enumeration, were not residents of the District; but 52 of them were considered as retaining their rights in the tribe, and more than half of the 66 were understood to be only temporary residents abroad, expecting, at some time, to return to Marshpee, and make it their permanent place of residence. A few others, as a matter of personal convenience, are now residing just over the line, and are so returned, but they consider themselves as identified with the tribe in all respects, and are so considered by the tribe. Fourteen individuals, included in the above 66, whose names are in the 'Supplementary List,' own no land in the District, but have been gone so long from it, that they are not now recognized by residents as members of the tribe." Documents printed by order of the Senate, 1861, No. 96, p. 40.] (1861).

The Marshpee tribe doubtless had a larger infusion of Negro blood than any. When the population of this tribe was 327 in 1771, 14 of them were Negroes, married to Indians. In 1832 there were 315 inhabitants, of whom 16 were Negroes. According to the report of the Indian commissioner in 1849 the population was 305 in 1848, of whom 26 were foreigners, all Negroes or mulattoes. The tribe numbered 403 in 1859, "including 32 foreigners, married to natives of the tribe, all Negroes or mulattoes, or various mixtures of Negro, Indian, or white blood—none of them being pure whites."[144 - Documents printed by order of the Senate, 1861, No. 96, p. 47.]

The Punkapog Tribe of Indians formerly dwelt on a tract of land in Canton, Norfolk County, containing five thousand acres, granted them by the General Court of Massachusetts. Before 1861, however, they had lost all of this property, the last of it being sold by the guardian, about 1841, in pursuance of a resolve of the legislature. "The full-blood Indians of the tribe," says the report of 1861, "are all extinct. Their descendants, who, like those of all the other tribes in the States, are of various grades of mixtures, of Indian, white, and Negro blood, number, so far as is ascertained one hundred and seventeen persons."[145 - Ibid., pp. 73-74.]

According to the survey made in 1861 the moral condition of the Indians was rather low and it was a regret that the people of color exhibiting generally more moral stamina should be degraded by living among them. Accounting for this condition of Affairs a contemporary said of the low moral condition of the Fall River Indians in 1861: "The prejudice of color and caste, and the social proscription to which the colored people are subjected, has a twofold unfavorable effect upon them; first to detract from their self-respect and so to weaken the moral instincts, and then to throw them into the association of the more dissolute and degraded of other races, where they fall an easy prey to immoral habits. There are, however, in this tribe as well as the others, instances of those who rise above all the evil influences with which they are encompassed and maintain a good standing, as worthy and respectable members of the community. It would be a cause for gratification, if it could be said truly that these are increasing, or that there was any decided progress in the general character of the tribe. But, from all the evidence that can be gathered, it does not appear that, for the last twelve or fourteen years, there has been much, if any improvement in their moral and social condition,"[146 - Documents printed by order of the Senate, 1861, No. 96, p. 84.]

The situation in the Hassanamisco Tribe shows how the Indians in some of these reservations became extinct. Interbreeding with both races they passed either to the blacks or to the whites. "But little trace of Indian descent is apparent in the members of this tribe," said J. M. Earle in 1861. "It is most marked in the few who have mixed chiefly with the whites, yet some of these have no perceptible indications of it, and have become identified with the white race. The remainder of the tribe have the distinguishing marks of African descent and mixed African and white, of various grades, from the light quadroon and mulatto, to the apparently nearly pure negro, and, in every successive generation the slight remaining characteristics of the race become less apparent."[147 - Documents printed by order of the Senate, 1861, No. 96, p. 101.]

Referring to the Yarmouth Indians the investigator informs us that these had tended to go almost altogether over to the white race. "With this exception," said he, "nearly all of his descendants have intermarried with whites, down to the present day, so that they are substantially merged in the general community, having their social relations with white people, with the exception of one or two families."[148 - Ibid., p. 109.] It was observed that in all the families, in which both heads are living, there were only two in which one of them was not pure white, and those having the Indian blood were usually so little colored, that it would hardly be noticed by one not acquainted with the fact. Some of them had but one sixteenth part of Indian blood. Of the two widows found there in 1861 one was the wife of a white man. The other was a Marshpee Indian whose husband belonged to the Yarmouth tribe and she associated with the people of color.

Discussing the Middleborough Indians, the same report said: "They have been, for some time, commingled with them in the same community, generally under as favorable circumstances, in most respects, as the other colored population of the State, to which they assimilate and have not been subjected to the peculiar present disadvantages under which those labor who are residents of the plantations,"[149 - Ibid., pp. 131-132.]

Because of numerous complaints to the effect that the unnecessary restrictions placed on Indians no longer dependents worked a hardship, the Commonwealth of Massachusetts enacted in 1861 a measure providing that all Indians and descendants of Indians in that State should be placed on the same legal footing as other inhabitants of that Commonwealth, excepting those who were supported or had been, in whole or in part, by the State and excepting also those residing on the Indian plantations of Chappequiddick, Christiantown, Gay Head, Marshpee, Herring Pond, Fall River and Dudley tribes or those whose homes were thereon and were only temporarily absent. It further provided that any Indian or person of color, thus denied the right of citizenship but desirous of exercising that privilege might certify the same in writing to the clerk of his town or city, who should make a record of the same and upon the payment of a poll tax should become to all intents and purposes a citizen of the State, but such persons should not return to the legal condition of an Indian. Indians unable to avail themselves of this opportunity remained under a guardian in their former state but by complying with this provision they finally emerged from their tribal state into the large body of citizens.

Giving further consideration to the situation among the Indians, the legislature of Massachusetts passed in 1869 what is known as An Act to Enfranchise the Indians of the Commonwealth. By this measure practically all Indians in that State were made citizens entitled to all the rights, privileges, and immunities and subject to all the duties and liabilities to which other citizens were entitled or subject. The same provision was made in the acts of 1884, 1890, 1892 and 1893.[150 - Massachusetts Acts of 1884, 1890, 1892, and 1893.] With a proviso exempting from attachment or seizure on execution for a debt or liability existing before the passage of the law this measure further declared all Indian lands "rightfully held by any Indian in severalty and all such lands which had been or may be set off to any Indian should be and become the property of such person and his heirs in fee simple."[151 - Massachusetts Acts of 1869, Chapter 463.]

The Indians thereby became vested not only with the rights of any other citizen to sell or control his interest in property whether legal or equitable but were given similar rights in the common lands which were transferable. Prior to this legislation the common lands had been exploited by the State for the benefit of those Indians having the status of wards. Recognizing only equitable rights of ownership in the Indians, the commonwealth kept their property under public guardianship to protect them from the consequences of their own improvidence. Indians had the right immediately to have their share of the common lands of the tribe transferred to them or sold for their special benefit. They were granted also the right to have their share in any funds or other property held in trust for the tribe turned over to them.

The Indians of the Marshpee and Gay Head settlements, however, were made exceptions in this case for the reason that the improvement in their condition was not adequate to justify the extension to them of the same treatment given others; but they were given these same rights in 1870.[152 - "A method was also provided through which his title might be established. This was through Commissioners which were to be appointed by the Probate Court who were to act under the direction of the Court and determine all necessary questions and make their report from which the Court could make its order or decrees. Any person who deemed himself aggrieved had the right to appeal to the Supreme Judicial Court. The right of the Indians became vested and forcible the moment the statute took effect." See a statement from the present Attorney General of Massachusetts, dated December 1, 1919.] By the Act of 1870 the district of Marshpee was abolished as such and incorporated as a town by that name. To establish the claim to the rights and privileges guaranteed other Indians in the Act of 1869, the Superior Court of the State was given jurisdiction and a board of Selectmen was constituted as the authority for making such applications instead of any member of a tribe.

It would seem that this legislation of 1869 and 1870 solved the problem of the wardship of Indians and free persons of color on the reservations. It developed thereafter, however, that all members of these communities were not in a position to maintain themselves. In 1902, therefore, it was enacted that the State Board of Charity upon the application of the overseers of the poor of any town should make provision in the State hospital or elsewhere for the support of Indians who may be unable to support themselves and have not acquired a settlement in any town. Upon the application of an Indian who received aid from the commonwealth prior to the twenty-third day of July in the year 1869, the State Board was obligated to furnish him in the State hospital or elsewhere such aid as it might consider expedient.

The provisions in the law of 1870 for the sale of certain lands in the proceeds of which these persons would share led to further action. In 1870 the probate court appointed commissioners to make partition of the common lands of the Marshpee Indians referred to in the Act of 1869. These commissioners did not make their report until 1878. In 1870 there was presented to the Superior Court by the Selectmen of Marshpee a petition for the division of common lands among the persons entitled thereto. In spite of argument to the contrary the Supreme Court of Massachusetts held that the members of the Indian tribes mentioned in the Act of 1869 acquired both legal and equitable rights in tenants in common of the undivided lands of the tribe which were transferable. It was provided in 1878 that the proceeds from the sale of such lands should be divided among the persons entitled to the land in proportion to their interests.

In 1870 the Gay Head district also was abolished and incorporated as a town. The Indians were guaranteed the same rights to lands in severalty and the division of common lands as in the case of other Indian communities thus disestablished. The partition of these lands was to be made in the Probate Court on application of the Selectmen or ten resident owners of such land. An Indian feeling aggrieved because of an invasion of his rights could appeal his case, according to the provision set forth in chapter 117 of the General Statutes of Massachusetts.[153 - "Section 5, chapter 463 of the Acts of 1869 provided that the general agent of the board of state charities shall take charge of the house, and all property connected therewith, in the town of Webster, belonging to the Commonwealth and permission was given him to lease the same to persona heretofore known as members of the Dudley tribe of Indians, upon terms substantially like those upon which they have heretofore occupied it; or to sell the same at public auction under the direction of the state board of charities and pay the proceeds of such lease or sale into the Treasury of the Commonwealth." Statement of present Attorney General of Massachusetts, submitted December 1, 1919.]

Some of these Negroes from the very beginning of their association with the Indians took high rank.[154 - Samuel A. Drake, History of Middlesex County. Massachusetts, pp. 194, 280.] The most prominent Negro of all, however, to come out of the Indian plantations was the celebrated Paul Cuffé, well known in this country and Europe by his efforts in behalf of African colonization. He was a native of the tribe of Dartmouth Indians, of mixed African and white descent. His important achievement was that of exploring the western coast of Africa with ships which he owned and fitted out and commanded and which he used in the transportation of Negroes to Africa where he was the first to undertake the deportation of freedmen from the United States, preparing the way for the organization of the American Colonization Society. On one of his voyages he visited England where he was received with marked attention by the nobility and the royalty itself. Men who knew Cuffé considered him a man of great character and respected him because of his being able by dint of energy to accumulate sufficient property to place himself in circumstances of pecuniary independence. Some of his descendants remained in the vicinity of the original Dartmouth Indians but others moved to California.[155 - John W. Cromwell, The Negro in American History, 98-103.]

Several families of Negroes in Massachusetts trace their ancestry back to these Indians. According to the Attorney General of Massachusetts, there are no special records kept at present of Negroes or persons of color who had interbreeded with Indians as regards the receipts by them of pensions from the commonwealth given as the result of having been dispossessed of their lands. Some persons of color assert, however, that they are the direct descendants of King Philip and Massasoit. Because of this close connection with the Indians it was necessary for the Commonwealth of Massachusetts on dispossessing the Indians of their lands to give these persons of color the benefits of the acts securing remuneration to the Indians. As these lands were disposed of regardless of the rights of the Indians, the State has assumed the obligation of satisfying these claims by pensioning the complainants.

Mr. William George Butler, of West Medford, Massachusetts, a man now sixty years of age, receives such a pension. Mr. Butler's father came to Boston from Baltimore about 1815 and married a woman of color with an infusion of Indian blood. In looking up her estate this connection was discovered and a petition was sent to the Massachusetts Legislature in her favor. Upon the investigation of her claim, which proved to be just, she was granted a pension of $250 a year, which Butler inherited.[156 - These facts were obtained from Mr. Butler himself.] In the following list of persons and tribes from which are descended all Indians who are at present receiving pensions from the Commonwealth, of Massachusetts, however, appear several Negroes or persons of color.[157 - This list was obtained from the office of the Attorney General of Massachusetts.] These are:

    C. G. Woodson

DOCUMENTS

To meet the demand for an enlargement of the liberty granted the Indians and the mixed breeds living on the reservations, the Massachusetts Legislature enacted in 1861 the following measure intended to offer every ambitious one of these groups a way of escape from the wardship of the State and at the same time safeguarding the interests of those who objected to having turned loose upon society a large number of dependents who could not function as persons having a permanent attachment to the community and primarily concerned with the welfare of the body politic.

Commonwealth of Massachusetts

In the Year One Thousand Eight Hundred and Sixty-One

AN ACT

Concerning the Indians of the Commonwealth

Be it enacted by the Senate and House of Representatives, in General Court assembled, and by the authority of the same, as follows:—

Sect. 1. All Indians and descendants of Indians in this State are hereby placed on the same legal footing as the other inhabitants of the Commonwealth, excepting those who are supported, or have been, in whole or in part, by the State, and excepting also, those residing on the Indian plantations of the Chappequiddick, Christiantown, Gay Head, Marshpee, Herring Pond, Fall River, and Dudley tribes, or those whose homes are thereon and are only temporarily absent.

Sect. 2. Any Indian or person of color, belonging to either of the tribes before mentioned, and residing within the limits of any town or city of this Commonwealth, to whom the right of citizenship is not extended by the first section of this act but who wishes to exercise that privilege, may certify the same in writing to the clerk of the town or city where he resides, who shall make record of the same: and upon paying a poll tax, he shall become, to all intents and purposes, a citizen of the State, and shall not, thenceforward, return to the legal condition of an Indian. And settlement shall be required, by those who become citizens, under the provisions of this act, in the same manner they are acquired by other persons, under the General Statutes of the Commonwealth.

Sect. 3. It shall be the duty of the governor, by and with the advice and consent of the council, to appoint an able, discreet, and suitable person, to be Indian commissioner, who shall hold his office for the term of three years, unless sooner removed by the governor and council. And the governor and council shall fill all vacancies which shall happen in said office, by death, resignation, expiration of said term, or otherwise. It shall be the duty of said commissioner to exercise a careful supervision over the affairs of all the Indians of the Commonwealth, not endowed by the provisions of this act, with the rights of citizenship, and to aid them, by advice, counsel, and whatever other suitable means may be within his control, to promote their welfare, to improve their general condition, and to qualify themselves, judiciously, and with safety to themselves and others, to be placed, at as early a time as may be, on the same legal footing as the other inhabitants of the Commonwealth. He shall exercise all the powers, perform all the duties, and be subject to all the restrictions, responsibilities and liabilities, which now by law appertain to the treasurer of Marshpee, and to the guardians of other tribes except so far as they may be charged or varied by the provisions of this act; and he shall give bonds, to the satisfaction of the governor and council, for the faithful performance of such trust.

Sect. 4. The said commissioner shall, as soon as is convenient, after his appointment, cause a registration to be made, on the basis of the general registration of the State, of all the members of the several tribes, specifying the parentage and date of the birth of each, as near as can be ascertained, and the date of all marriages of parties now living, with all the particulars, that are now required of town clerks, by the laws of the State, and having completed the same, up to the time required by law for the last preceding return to be made, he shall, thenceforward make and keep a true registration of all the births, marriages, and deaths, in each of the said tribes, and shall annually make due return thereof, the whole to be done in the same manner as is required of town clerks, and under the same liabilities and conditions that are, by law, imposed upon them.

Sect. 5. The said commissioner shall, in concurrence with the proper officers of the Gay Head tribe, cause a survey of all the land held in severalty, by the members of said tribe, setting out the same to each, by betes and bounds, and, when the survey is complete, shall cause a record of the portion of each proprietor to be made in the registry of deeds, of the county of Dukes County, and thereupon, the legal title shall vest in the several proprietors thereof, their heirs, and assigns, forever: provided, however, that no land on the plantation shall ever be alienated from the tribe or be held or possessed by any person who is not a member thereof; and when ever the family of any proprietor becomes extinct, the real estate of said proprietor shall revert to said tribe and become the property thereof, in common. And whenever, hereafter, any common land shall be taken up to be occupied and possessed in severalty, by any member of the tribe, having the concurrence of the tribe therein, the same shall be surveyed, set forth, and recorded, under the supervision of said commissioner, as is above provided; and no title to any common land, to be held in severalty, on said plantation shall be acquired in any other manner.

Sect. 6. The said commission shall cause a survey to be made of the Indian plantation at Fall River and the bounds thereof to be renewed, agreeably to the surveys made by order of the State in one thousand seven hundred and sixty-three. He shall ascertain to whom the several lots belong by hereditary descent from the proprietors to whom they belonged in one thousand seven hundred and sixty-four, so far as descendants of said proprietors still remain, and shall designate the same by the numbers of the lots respectively; and in the same manner, he shall designate the several lots, if such there be, of which the families of the former proprietors have become extinct, and shall make return of the same to the governor and council, for the use of the legislature, and shall report such other facts connected therewith as may be useful to them, and shall recommend such disposition of the land remaining in common, as in his judgment, shall be most conducive to the welfare of the Indians, and of the State.

Sect. 7. The said commissioner shall, as soon as the performance of the duties of his office shall have made him sufficiently acquainted with the necessities and wants of the Indians, and with the other facts necessary to qualify him for the service, prepare a bill embodying a system for governing, managing, and regulating the affairs of the several tribes, as nearly uniform in its provision respecting them severally, as the circumstances of the different tribes will permit, as a substitute for the present laws on that subject, and report the same to the governor and council for the consideration of the legislature, accompanied by the reasons on which the several provisions therein recommended are sustained.

Sect. 8. The Indians and people of color on Gay Head, and the officers by them appointed for the purpose, shall have the same powers in the management of their municipal affairs, and in relation to the employment of teachers, and the making and enforcing of all rules for the regulation and government of their schools, that by law are exercised by the inhabitants and corresponding officers of the several towns of the Commonwealth: provided, however, that this shall not be construed to authorize the alienation of any of the territory of the plantation: and provided, further, that no person shall be authorized to vote in municipal affairs, except natives of the Gay Head tribe, natives of other Indian tribes of this State married or having been married to a Gay Head woman and resident on the plantation, or such other person resident on the plantation and married or having been married to a Gay Head woman, as shall have the right conferred on him by a vote of two-thirds of the voters of the plantation.

Sect. 9. All acts and parts of acts heretofore passed, so far as they conflict with the provisions of this act, are hereby repealed.

Sect. 10. This act shall take effect from and after its passage.

If the legislature should decide not to authorize the appointment of a single commissioner for the State, I would propose the passage of the same Bill with the following amendments:—

Strike out the whole of section 3.

Strike out in section 4 the words "said commissioner shall, as soon as is convenient after his appointment," and insert the words—clerks of Marshpee, the guardians of the several plantation tribes, and the clerk of Gay Head shall.

In section 5, strike out the words "said commissioner," and insert the words—guardians of the Chappequiddick and Christiantown tribes. Also, in the latter portion of the same section, strike out the word "commissioner" and insert the word—guardian.

In section 6, strike out the words "said commissioner," and insert the words—guardian of the Troy or Fall River tribe.

Strike out section 7, entire.

Alter the numbering of the sections after 2, to correspond to the changes.

Insert the following section after section 8:—

Sect. —. No person shall be entitled to support by any tribe in the State, of whose parents, one only was an Indian, and whose residence was not on the plantation of the tribe at the time of his birth, unless the rights of himself or parents as members of the tribe, shall have been subsequently recognized by the tribe.

SOME NEGRO MEMBERS OF RECONSTRUCTION CONVENTIONS AND LEGISLATURES AND OF CONGRESS [158 - Compiled by Monroe N. Work.]

No systematic effort has hitherto been made to save the records of the Negro during the Reconstruction period. American public opinion has been so prejudiced against the Negroes because of their elevation to prominence in southern politics that it has been considered sufficient to destroy their régime and forget it. As future historians will seek for facts beyond those compiled by biased investigators now writing monographs in this field, a few persons realizing the importance of preserving the records in which the actual facts are set forth, are now directing the attention of the country to this neglected aspect of our history. These lists of suggestive names of the men who figured conspicuously in this recent drama will be decidedly useful in the collection of facts adequate to the presentation of both sides of the question. These lists are far from being complete. This is but a step in the right direction and persons in possession of such facts are earnestly urged to coöperate in collecting them.

It has been extremely difficult to determine the race of the members of the various Reconstruction bodies. The lists of members as published in the Journals of the legislatures do not indicate the race. This has to be determined by contemporary information. The methods used by other persons and agencies in identifying the race have been various. The Negro members of the North Carolina General Assembly, for example, were indicated by the figure 37 in the State Manual listing all persons who had been in the Assembly. Where no such information could be obtained from printed matter, it has been necessary to rely upon information obtained from individuals who participated in the Reconstruction.

Negro Members of the Alabama Constitutional Convention, 1867[159 - Beverly, History of Alabama, 202, 208.]