Constitutional and Legal Racism in Indiana: 1787 – 1870

            The State of Indiana was created in 1816 and was carved out of the Northwest Territory as established in 1787 by the Congress of the Confederation.  Indiana would become one of six states, along with Ohio, Illinois, Michigan, Wisconsin, and part of Minnesota.  Part of the 1787 act created An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio (Ordinance of 1787),[1] establishing territorial governments and the process for statehood.  Statehood could be achieved when the territorial population reached 60,000, but elected forms of government could be achieved after five thousand free male inhabitants resided there. 

            Congress, ever mindful of the issues of slavery, created Article 6 of the Ordinance Act, which states, “There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”[2]  The article meant that slavery would not be expanded into these northern sections.  But what did that mean for African Americans in these areas?  Would they be free and equal?

This dissertation will examine constitutional and legal racism in Indiana and the territory before statehood.  While Illinois, Indiana, Michigan, Ohio, and Wisconsin, were ‘free’ states, they were not necessarily open states to African Americans.  States such as Illinois and Indiana included in their state constitutions laws prohibiting African Americans from settling in their states.  Often the states enforced the Fugitive Slave Act, helping the South continue its enslavement of African Americans.  Yet, at other times, the states showed independence and applied progressive interpretations of state constitutions to deny slave owners of their ‘property.’ Even after the Civil War, midwestern states gave a mixed message on treating African Americans, often treating them as second-class citizens until the Civil Rights Act Era, if not today. 

The dissertation will examine Indiana’s constitutions (1816 and 1851) and laws on race to determine the state’s significance in the historiography of slavery and racism in the United States.  Legal historians[3] are in the best position to interpret constitutional and legal rulings of the Indiana State Supreme Court and the acts of the state legislature.  As race issues continue to plague the nation, it is essential to understand how the problem began and what is needed to overcome falsehoods and stereotypes.  While there are a significant number of works on the formation of Indiana and racism in the United States, the subject of racism in Indiana’s formative years has not been sufficient, and even fewer studies from a legal and constitutional perspective. 

The dissertation will map out the arguments and acts of the state’s founders and determine how racial attitudes and laws progressed.  It is crucial to find out why the State of Indiana, which fought on behalf of the North in the Civil War, placed in its state constitution of 1851 a prohibition for African Americans to live there. 

            The dissertation will look at the following periods in Indiana’s history: First, settlement during 1787 until the state constitutional convention in 1815, including the enforcement of the Federal Fugitive Slave Act, which was held constitutional by the United States Supreme Court Dred Scott v. Sandford.[4]  Second, the laws and constitution from 1816 until 1851, when a new constitution was enacted.  The final will study the state constitution of 1851 until the passing of the Fourteenth Amendment to the United States Constitution and the universal suffrage of African American males in Indiana in 1870.   

            The dissertation will use traditional historical research and look at Indiana historical depositories such as the Indiana State Archives and Indiana Historical Society Collections.  While the primary focus is on the legal treatment of African Americans, the dissertation will look at newspapers, legislative notes, speeches, and legal opinions.   Only by a variety of primary sources can the dissertation questions be explored.  Those questions, preliminarily, are: What were the political and social issues surrounding the various stages of racism in Indiana?  How did the Indiana county and Supreme Court rulings compare to similar judgments of the United States Supreme Court?  Did the state courts provide more protection?  Is there a discernable pattern?  Did the state supreme court rulings cause Indiana state legislatures to modify the law or state constitutions?  If so, did it attempt to correct the racial issue or look for other ways to maintain the status quo?   How does Indiana fit into the historiography of racism in the United States?  Finally, what questions still need to be explored by other historians?  Since this is an empirical search, the author has no preconceived notions of the answers to these questions.  Traditional history shows African Americans were mistreated in Indiana, and the causes must be studied.

[1] “Northwest Ordinance; July 13, 1787”Avalon Project. Lillian Goldman Law Library, Yale Law School.

[2] Ibid.

[3] Mark A. King achieved his Juris Doctorate from Indiana University School of Law in 1998 and is a doctoral candidate in history at Liberty University.

[4] Dred Scott v. Sandford. 60 U.S. 393 (United States Supreme Court, 1856).

Published by Mark King

Currently, Mark King works for the Marion County Public Defender’s Office in the Juvenile CHINS Division. He represents families that have become involved with the Department of Child Services. Like most people, Mark enjoys spending time with family and friends and enjoys golf, working out and traveling. He has been lucky with his career-- started as a prosecutor, joined the FBI, had a private practice and has appeared before the Georgia and Indiana trial courts, Indiana Court of Appeals, the United States District Court for both the Southern and Northern Districts of Indiana, and the United States Court of Appeals for the 7th Circuit. Mark has a Juris Doctorate from Indiana University and a Master of Arts in Military History from Norwich University. His passion for history has pushed him to begin working on his second doctorate, a PhD in History. Mark is married and lives on the south side of Indianapolis.

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