Postscript to Plying the Liberty Trade: Law, Empire-Building, and the Enforcement of Antislavery Scriptures in the Reconstruction of New Mexico

In my work, I am interested in evaluating enforcement asymmetries (inequalities) scaled along characteristics like race, nationality, and status in both contemporary and historical settings particularly within the border region of the United States and Mexico. My article in the Political and Legal Anthropology Review earmarked the forward inertia of scholarship that excavated the obscure and complicated history of law, colonialism, and captive-taking in the newly minted western territories during the nineteenth century. My interest was in exploring the U.S. government’s enforcement approach relative to borderland wars where Indian and mixed-blood (e.g., Mexican) populations ritualistically and reciprocally took captives from one another’s societies.

Immediately preceding my work were two path-breaking books on the subject of captive-taking and enslavement in the west. They were by prolific historians, Ramon A. Gutierrez and James F. Brooks. Ramon’s book, When Jesus Came, the Corn Mothers Went Away, discusses the little known history of Indian enslavement within the Spanish colonization of today’s American southwest. Professor Gutierrez argues that Indians were treated as a dishonored caste whose alien status justified their enslavement by “enlightened” Spanish conquerors. Captives & Cousins: Slavery, Kinship and Community in the Southwest Borderlands, which is by Professor Brooks, is a historical and anthropological study of captive-taking and its relationship to borderland economies and markets. He makes the point that, at least in some cases, filial kinship became bound-up with the captivity experience. Former New Mexico state historian Estevan Rael-Galvez’s doctoral dissertation, Identifying Captivity and Capturing Identity, argues the inverse. Contrary to Brooks, Galvez argues that kinship in custodial situations was a matter of perspective—that is, what may have seemed like kinship to slave-masters could have been appeared quite different to those held captive. Instead, Indian captivity and slavery should be understood as the by-product of racial and class domination as well as overlapping colonial regimes.

Two recent books, by historians Brian DeLay and Pekka Hamalainen explore captive-taking from angles distinct in both tone and direction by focusing on the taking of Mexican origin captives by American Indian raiders. Brian DeLay’s War of a Thousand Deserts: Indian Raids and the U.S.-Mexican War details U.S. origin Indian raids into Northern Mexico and discusses the consequences these raids had on the decision by the Polk Administration to annex the Mexican west through armed conflict. Pekka Hamalainen’s The Comanche Empire explores intergenerational Comanche raiding into Northern Mexico as a dimension of a thriving indigenous colonial empire.

Laura Gomez’s book Manifest Destinies: The Making of the Mexican American Race represents an important transition in the field of American legal colonialism. In the book, she explores the role that American institutions, like courts of law, played in creating critical social cleavages between affluent and poor Mexicans in New Mexico. The practical result was the semi-integration of upper-class Mexicans into American frontier society while impoverished Mexican classes experienced alienation. This process laid the foundation for the emergence of a largely segmented Mexican American society.

While Gomez’s book is important on its own terms, she makes a rather modest observation that identifies a critical gap in the literature: enforcement as a corollary to American state-building. Professor Gomez makes the point that Americans, in supplanting their own legal institutions in place of Mexican ones, sought to re-cast their authority hierarchically. Part of that meant abolishing Mexican practices and customs—like captive-taking and Indian enslavement—seen as being incompatible with American ideals and authority. Thus, the federal enforcement of anti-slavery protocols should be interpreted in terms of a larger American state-building process. Although I had already begun to explore this angle, I recognize the value in Professor’s Gomez’s precise articulation of the issue and the need to expand the discussion on enforcement.

In particular, my work builds on this idea by discussing the implications that federal liberation had on the American state-building process in the west. My forthcoming book project, Purging Mixed Blood Wars: Law, Alien Races, and American State-building in the Western Territories (1848-1868), addresses the absence on enforcement in the literature. From 1848-1868, American officials (e.g., Indian agents, federal commissioners, deputy U.S. Marshals) became duty-bound to locate and liberate persons taken captive in borderland wars between Indian and Mexican societies.  The aim of this project is to evaluate the efficacy of federal liberation activities in New Mexico during the nineteenth century by empirically analyzing census materials and baptismal records (major pathways into captivity). Simply put, if the archival materials evidence a continuing pattern of captivity, particularly after federal officials had the opportunity to complete their anti-captivity investigations, this speaks to the efficacy of their work.

My book’s emphasis on operational enforcement illuminates key aspects that have important implications for law, colonialism, and captive-taking in the western territories during the nineteenth century. It was during this time that the U.S. merged immense military state-building along with the incorporation of several ethnically distinct non-white populations in the U.S. annexation of the Mexican west. Such expansive change holds important consequences for American enforcement institutions operating on a contested cultural terrain that pre-dated American occupation for hundreds of years. This project illuminates a subtle yet powerful irony in New Mexico history: while territorial struggles over captivity and servitude foreshadowed the impending national debate over black slavery: ultimately, New Mexico would not tangibly benefit from what should have been a robust emancipation program aimed at abolishing territorial servitude on a comprehensive scale like that which occurred in the American south.

This work will help academics to think more concretely about the rise of enforcement institutions and how enforcement asymmetries may have affected policies and political development. In the mid-to-late nineteenth century, the American state and its institutions may have expanded beyond the point at which they could enforce their own policies. Second, this book project aims to promote a scholarly re-thinking of the treatment of race and slavery, often presented as fixed and dichotomous, as exclusive to the American south. Third, my book will build a more nuanced understanding of how incongruities between the contract state and the predatory state can produce operational inequalities even amongst those institutions with an interest in being humane. Analyzing federal anti-captivity operations in the nineteenth century can illuminate how enforcement asymmetries can distort and ultimately fragment the enforcement process, degrading the ability of enforcement institutions to act in ways that are fair, effective, and efficient. Fourth, I think this research may have implications for the study of enforcement asymmetries in modern-day enforcement settings. For instance, enforcement asymmetries arguably operate similarly within today’s institutional forms of enforcement, particularly in a policing context such as immigration enforcement.

Robert Castro is an associate professor in the Division of Politics, Administration and Justice at the California State University, Fullerton. His research on immigration has also been published in the Law & Inequality Journal, Journal of Hate Studies, Harvard Journal of Hispanic Policy, and Harvard Civil Rights and Civil Liberties Law Review.