Facing Uncomfortable History: Unfree Labor in a Free State

CONTENT WARNING: This article contains discussions of human trafficking and settler-colonial violence against Indigenous people.

In September 1850, Congress admitted California to the Union as a free state. The state’s constitution proclaimed that “neither slavery, nor involuntary servitude, unless for the punishment of crimes, shall be tolerated." But before securing statehood, California had already established a racially based system of forced labor.

In April 1850, the Act for the Government and Protection of Indians was signed into law. This law enabled white settlers to force Native Californians to work as bound prisoners, custodial wards, or indentured “apprentices” by taking advantage of two major loopholes in the state constitution's anti-slavery clause. Although slavery and involuntary servitude were prohibited, convict labor and “voluntary” servitude were not.

For one, the 1850 act allowed white employers to obtain custody of any Native Californian convicted of a crime punishable by fine by paying said fine and court costs. Native convicts then worked to pay off the fines their employer had paid for them, thereby making jails inexpensive labor suppliers.

If found guilty of vagrancy, unemployed Native Californians could also be hired out to the highest bidder by local authorities. Under this convict leasing legislation, thousands of Native Californians were arrested and sold in public auctions.

Meanwhile, with the consent of “parents” and “friends” (an incredibly vague legal classification), employers could keep and force children to work for no pay until they reached the age of majority (fifteen years for females and eighteen for males).

In practice, this statute quickly led to the trafficking of Native children kidnapped from their parents or seized in war by California militiamen. According to one estimate, “‘between three and four thousand children’ would eventually fall victim to kidnappers supplying the Indian labor market” (Magliari 2004, 353).

Legal remedies were essentially nonexistent. Although Native Californians could complain to a justice of peace and take white employers to court, the act also decreed that “in no case shall a white be convicted of any offence upon the testimony of an Indian” (qtd. in Madley 2014, 644).

Furthermore, any employer convicted of forcing a Native person to work against their will would only be charged a fine of at least fifty dollars. Abuse ran rampant without the threat of imprisonment, and this opened the door for de facto enslavement.

The exploitation of Indigenous Californians endured even after the Thirteenth Amendment (1865) abolished slavery and unfree labor nationwide. Similar to California's original constitution, the amendment allowed convict labor and “voluntary” forms of servitude. It wasn’t until 1937 that the Act for the Government and Protection of Indians was repealed in its entirety.

But by then, the damage was done: “The 1850 Act and subsequent amendments facilitated removing California Indians from their traditional lands, separating at least a generation of children and adults from their families, languages, and cultures” (Johnston-Dodds 2002, 5).

Slavery and involuntary servitude therefore are deeply embedded in California’s history and economy. As one scholar argues, “‘it is unlikely that grain farming could have taken off when it did’ without the 20,000 Native American men, women, and children eventually bound under the law’s various provisions” (Magliari 2004, 353).

Reckoning with this uncomfortable history is just the first step in reconciliation and remedying the racial disparities that pervade our society today.

━━━━━━━━━━━━━━━

References and Further Reading

Johnston-Dodds, Kimberly. “Early California Laws and Policies Related to California Indians.” California Research Bureau, California State Library, 2002. https://courts.ca.gov/sites/default/files/courts/default/2024-08/ib.pdf.

Madley, Benjamin. “‘Unholy Traffic in Human Blood and Souls’: Systems of California Indian Servitude under U.S. Rule.” Pacific Historical Review 83, no. 4 (2014): 626–67. https://doi.org/10.1525/phr.2014.83.4.626.

Magliari, M. “Free Soil, Unfree Labor.” Pacific Historical Review 73, no. 3 (2004): 349–90. https://doi.org/10.1525/phr.2004.73.3.349.