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“The law recognizes racial instinct”: Tucker v. Blease and the Black–White Paradigm in the Jim Crow South

Published online by Cambridge University Press:  09 May 2011

John W. Wertheimer ,
Jessica Bradshaw ,
Allyson Cobb ,
Harper Addison ,
E. Dudley Colhoun ,
Samuel Diamant ,
Andrew Gilbert ,
Jeffrey Higgs  and
Nicholas Skipper
Rights & Permissions [Opens in a new window]

Extract

On January 24, 1913, the trustees of the Dalcho School, a segregated, all-white public school in Dillon County, South Carolina, summarily dismissed Dudley, Eugene, and Herbert Kirby, ages ten, twelve, and fourteen, respectively. According to testimony offered in a subsequent hearing, the boys had “always properly behaved,” were “good pupils,” and “never …exercise[d] any bad influence in school.” Moreover, the boys’ overwhelmingly white ancestry, in the words of the South Carolina Supreme Court, technically “entitled [them] to be classified as white,” according to state law. Nevertheless, because local whites believed that the Kirbys were “not of pure Caucasian blood,” and that therefore their removal was in the segregated school's best interest, the court, in Tucker v. Blease (1914), upheld their expulsion.

Information

Type
Forum: Racial Determination and the Law in Comparative Perspective
Information
Law and History Review , Volume 29 , Issue 2 , May 2011 , pp. 471 - 495
Copyright
Copyright © the American Society for Legal History, Inc. 2011

On January 24, 1913, the trustees of the Dalcho School, a segregated, all-white public school in Dillon County, South Carolina, summarily dismissed Dudley, Eugene, and Herbert Kirby, ages ten, twelve, and fourteen, respectively. According to testimony offered in a subsequent hearing, the boys had “always properly behaved,” were “good pupils,” and “never …exercise[d] any bad influence in school.”Footnote 1 Moreover, the boys’ overwhelmingly white ancestry, in the words of the South Carolina Supreme Court, technically “entitled [them] to be classified as white,” according to state law.Footnote 2 Nevertheless, because local whites believed that the Kirbys were “not of pure Caucasian blood,” and that therefore their removal was in the segregated school's best interest, the court, in Tucker v. Blease (1914), upheld their expulsion.Footnote 3

This article uses a fine-grained exploration of Tucker v. Blease to make two arguments. First, racial determination law in the early-twentieth-century United States South was strikingly uncertain. In part, this reflected the tradition of federalism, according to which each state set its own rules. But even within the single state examined here, the law's meaning was ambiguous. Different groups of South Carolinians—private and public, local and statewide, legislative and judicial—struggled to control the law of racial determination. Compared to the other jurisdictions considered later in this forum, racial determination in South Carolina was characterized by relatively weak legislative rules, a relatively strong tradition of local control, and an appellate judiciary powerful enough to rewrite even constitutionally mandated rules.

Second, Tucker highlights the role of the legal system in propagating the so-called “black–white paradigm”: the misleading notion that the United States’ racial palette historically has contained only two colors. The Tucker ruling prominently articulated this paradigm by conceptualizing a society containing just two groups: “those with and those without negro blood.”Footnote 4 Hidden beneath the surface of the published opinion, however, was a twist that previous scholars have not perceived.Footnote 5 The Kirby boys were not alleged to have “negro” ancestry, and their neighbors did not seek to send them to segregated “negro” schools. They were alleged to have Croatan Indian ancestry, and their neighbors sought to send them to segregated Indian schools. The legal system, however, acted as an ethnic strainer. By the time the South Carolina Supreme Court decided the case, the dispute's multicultural characteristics had all but disappeared. Subsequent journalists, law reporters, lawyers, and scholars all assumed, wrongly, that the case involved only blacks and whites. In Tucker v. Blease, therefore, the judicial process served as a primitive camera, turning America's multicultural rainbow into grainy black and white.

The Black–White Paradigm

For several decades now, historians have sought to move beyond the “black–white paradigm.” The self-consciousness with which scholars have recently attacked this paradigm contrasts with the imprecision of its creation. No scholar set out to construct it. It crystallized early in the twentieth century, as white ethnic categories merged, as Jim Crow hardened, and as African-Americans and their defenders protested.Footnote 6

The most forceful scholarly articulations of the “black–white paradigm” appeared in the works of racially liberal, mid-twentieth-century writers who emphasized the rigidity of America's racial binary as a means of attacking it. These writers repeatedly contrasted race relations in the United States with those in Latin America. They argued that race relations in the United States were rigid, dualistic, and oppressive, whereas race relations in Latin America were comparatively fluid, multi-hued, and harmonious. Brazil was their favorite example. A cadre of Jim Crow critics discussed the supposed permeability and multiplicity of Brazilian racial categories, and celebrated the relative harmony of race relations there.Footnote 7 “Brazil Has No Race Problem,” African-American sociologist E. Franklin Frazier declared in 1942, as a way of shaming wartime Americans into rethinking Jim Crow.Footnote 8 Another writer similarly asserted in 1949 that “there are no restrictions whatsoever . . . along racial lines in Brazil.”Footnote 9 Even during slavery, historian Stanley Elkins observed in 1959, Spanish and Portuguese colonies in the Americas had been characterized by “a confusing promiscuity of color, such as would never have been thinkable in our own country.”Footnote 10 In Latin America, Elkins contended, “color itself was no grave disability.”Footnote 11

Cross-national comparisons of this sort enabled scholars to portray the United States’ unforgiving “one drop” rule as the exception, not the norm. Jim Crow's oppressive racial binary was neither natural nor inevitable, they argued. Rather, it was troublingly anomalous, making the United States an outlier among the New World's former slave societies. “When, finally, we turn to the South of the United States,” wrote one scholar in the 1960s after surveying various Caribbean societies, “we are struck by the fact” that the “socio racial structure” contained just two categories: Negro and white. In Caribbean societies, this scholar argued, the sociologist “talks of ‘white’, ‘coloured’ and ‘Negro,’” whereas in the Deep South “he . . . talks [only] about ‘white’ and ‘Negro.’”Footnote 12

The notion that “racial democracy” prevailed abroad helped erode support for Jim Crow at home.Footnote 13 Perhaps most famously, Frank Tannenbaum's comparative historical study, Slave and Citizen: The Negro in the Americas (1947), helped to inspire Brooklyn Dodgers General Manager Branch Rickey to add Jackie Robinson to the squad, thus integrating Major League Baseball.Footnote 14

During the final third of the twentieth century, legal, demographic, and cultural changes challenged the scholarly legitimacy of the “black–white paradigm.” After the civil rights laws of the 1960s formally destroyed de jure segregation, champions of racial justice no longer felt the need to reify America's racial binary in order to transcend it. Robust immigration altered America's population and transformed its ethno-racial categorization. No longer was “black” a credible synonym for “non-white” in the United States. Even the once-stable “white” category showed fissures, thanks to a powerful, post-civil rights “white ethnic revival.”Footnote 15 Amid the multiculturalism and identity politics of the late twentieth and early twenty-first centuries, the “black–white paradigm” appeared both inaccurate and insensitive. A rising tide of scholarship vowed to transcend it. Historical understanding of Mexican-Americans, Asian-Americans, Native Americans, Sicilian-Americans, and many other groups increased dramatically.Footnote 16

Several decades of multicultural scholarship have destroyed the “black–white paradigm.” Few scholars today would endorse liberal historian Carl Degler's 1971 characterization of the United States as merely a “biracial society.”Footnote 17 In 1997, golfing champion Tiger Woods famously described himself as Cablinasian (Caucasian–black–Indian–Asian).Footnote 18 By then, most scholars would have agreed that Woods's nation, too, had long been Cablinasian, and then some.

As a lens for viewing history, the black–white paradigm has rightly been discarded. As a historical artifact, however, it merits further examination. Historians have been so intent on transcending it that they have failed to explain fully how it developed in the first place. They have not fully explained how so binary a racial self-understanding could achieve such prominence in so multicultural a nation.

Legal historians who have addressed this question have demonstrated that courts were central to the paradigm's development. Scholars such as Ian Haney Lopez, Peggy Pascoe, and Ariela Gross have shown that United States judges sometimes acted as black-robed postal workers, sorting a wide variety of ethno-racial groups into just two piles: black and white.Footnote 19 Judges openly declared, for instance, that “Mexicans” should be “classed as of the Caucasian Race,” but that Burmese and Hawaiians should not.Footnote 20

This article furthers historical understanding of the interplay between law and racial categorization in the United States. It uses Tucker v. Blease as a case study to illuminate the central role played by the legal system in the development of the “black–white paradigm.” Existing scholarship emphasizes instances in which courts admitted that they were categorizing diverse racial groups in terms of black and white, as in the aforementioned judicial declaration that “Mexicans are classed as of the Caucasian Race.”Footnote 21 In contrast, the judges in Tucker did not admit what they were doing. They silently filtered out the case's racial complexity, masking its multi-racial character and causing all but local observers to assume, wrongly, that only blacks and whites were involved.

The Croatan Indians of Dillon County

Dillon County, where Tucker v. Blease began, is in northeastern South Carolina, at the point where, today, I-95 enters the state from the north.Footnote 22 (Travelers may recall the well-advertised “South of the Border” tourist stop there.) Across Dillon County's northern border lies Robeson County, North Carolina, a famously “tri-racial county” whose population historically has divided into three groups of roughly equal size: Native Americans, whites, and blacks. Robeson County is the traditional home of the Native American group known today as the Lumbee Indians. In 1885, the North Carolina State Assembly officially recognized this group as the “Croatan Indians of Robeson County.” The state renamed them “Indians of Robeson County” in 1911, “Cherokee Indians of Robeson County” in 1913, and “Lumbee Indians”—after the Lumber River—in 1953.Footnote 23 According to the 1910 census, the Croatans were the seventh largest Indian tribe in the nation, with an official population of about 6,000.Footnote 24 Most Croatans lived in North Carolina's Robeson County.Footnote 25 In 1885, North Carolina mandated that Robeson enact three-way school segregation—white, black, and Indian. Over the years, the Croatan population slowly spread to surrounding counties in both Carolinas. Three-way segregation gradually spread, too.Footnote 26

Dillon County, South Carolina, was among the surrounding counties that contained small pockets of Croatans.Footnote 27 As of 1910, Dillon's population included just under 11,000 whites, just over 11,000 “Negros,” and, according to one unreliable estimate (no estimates are reliable here) 77 Indians.Footnote 28 (This figure was an underestimate. Many South Carolina Indians were listed as “mulattos.” Nonetheless, the Dillon County figure was large enough to account for about one quarter of South Carolina's Indian population, according to the 1910 census.)Footnote 29 Many of Dillon County's Indians were North Carolina Croatans who had migrated across the state line.Footnote 30

Dillon County's Croatans were a recognized local social group. Newspapers routinely labeled them “Croatans” when mentioning them in stories. For example, one 1911 article described an altercation in Dillon County involving “Pierce Allen, white,” “Dave Allen, a negro,” and “Esau Locklear, a Croatan.”Footnote 31 Another story mentioned John Miller, a Dillon County “Croatan” who lived 200 yards from John Coats, “an old Croatan.”Footnote 32 Another story from Dillon County reported that Ed Chavis, “a Croatan,” had shot and wounded Bob Locklear, “Croatan.”Footnote 33

In contrast to North Carolina, which formally recognized its comparatively huge Croatan population, South Carolina did not formally recognize its comparatively tiny one. Whereas North Carolina officially mandated three-way school segregation in Robeson County and some other areas with large Croatan populations, South Carolina, at the state-wide level, consistently employed just two-way school segregation.Footnote 34 Dillon County education officials listed just two sorts of schools: “white” and “Negro,” in accordance with state-wide reporting standards.Footnote 35

At the local level, however, some South Carolina communities quietly enforced three-way school segregation, with separate schools for “whites,” “Negroes,” and “Indians,” respectively. Dillon County's Oakland District No. 5, for instance, supported “a white school, a negro school, and a school for the descendants of the Indian race.”Footnote 36 Where it existed, this localized, three-way school segregation appears to have resulted both from anti-Croatan white racism, and from anti-black Croatan racism.Footnote 37 The reported Croatan disinclination to attend “Negro” schools may have reflected their awareness that Negro schools were dreadfully under-funded. At around this time, Dillon County's annual educational expenditure per white student was $25.56. The comparable figure for “Negro” students in the county was $1.28. Dillon County's racial funding gap was substantially larger than the state-wide average. Whereas Dillon County's per capita educational spending for whites was more than 80% above the state-wide average for whites, its per capita spending for blacks was more than 30% below the state-wide average for blacks. Therefore Indians may have concluded that educational opportunities in the Negro schools were not robust.Footnote 38

The Kirbys

Tucker v. Blease arose in the Dalcho District of Dillon County, one of Dillon County's Croatan population pockets. For a time, Dalcho operated separate schools for whites, “Negroes,” and Indians.Footnote 39 The Indian school, however, failed to retain its teachers and closed. By the time the Kirby children entered the district, only white and “Negro” public schools remained. The Kirbys chose the white option, as they had throughout their lives.Footnote 40

John and Annie Kirby, the parents of Dudley, Eugene, and Herbert, had always lived as “white,” as had their eight children. The Kirbys attended white churches and schools and associated with whites.Footnote 41 The census classified them as white.Footnote 42 By local standards, they were quite well-to-do. At a time when land-renters (tenant farmers and sharecroppers) outnumbered landowners in rural Dillon County by almost three-to-one, the Kirbys owned hundreds of acres.Footnote 43

Beginning in 1909, however, a series of tragedies buffeted the Kirbys. In June of that year, following an altercation, Dr. H. A. Edwards shot and killed John Kirby, the children's father.Footnote 44 A few months later, seventeen-year-old daughter Lucy died.Footnote 45 The 1910 census, taken locally in May, lists the widowed Annie Kirby, white, living with her seven surviving and still-unmarried children—all white—on a Dillon County farm.Footnote 46 Six months later, Annie died. The still-visible epitaph on her headstone, “How many hopes lie buried here,” reflects the suffering of the entire family.Footnote 47

The Kirby orphans moved in with their mother's sister, Sarah Tucker, in Dillon County's Bethea Township. Sarah and her husband George were a childless couple in their early forties. Years previously, they had lost their only child, a daughter named Mary, before her third birthday, a loss that may have predisposed them to respond sympathetically to the Kirbys’ misfortunes. George Tucker was “an industrious and successful farmer.” He and his wife were consistently known as white.Footnote 48

The Tuckers enrolled three of the Kirby children—Herbert, Eugene, and Dudley—in the Dalcho School, the local white public institution. Dalcho had a fine reputation.Footnote 49 Before the Kirby children could graduate, however, the school's trustees expelled them because of their race.

Expulsion

The expulsion of the Kirby children from the all-white Dalcho School on the grounds that they were not “white” reveals how uncertain the law of racial determination was at the time. Different sources of legal authority—some statewide, some local—competed to impose conflicting definitions of whiteness. Unlike the centralized and professionalized system of racial determination that prevailed in Nazi Germany, as described by Thomas Pegelow Kaplan later in this forum, racial determination in Progressive Era South Carolina was notably localized and grassroots.

The racial expulsion of the Kirby children occurred during their third year at the Dalcho School. It was initiated not by state officials or even local school administrators, but rather by angry white neighbors. Sam Edwards, a concerned Dalcho School parent, “dictated and circulated”Footnote 50 a petition urging the dismissal of all non-white students. The petition did not mention the Kirbys by name, and Edwards later claimed that “the petition was not directed at the Kirby children.” Nevertheless, few doubted that the petition was aimed at Dudley, Eugene, and Herbert. Bad blood had long existed between Edwards and the Kirbys.Footnote 51 More importantly, the Kirby children were the only Dalcho students whose “whiteness” was questioned.

Sam Edwards circulated the petition to “all who would sign it.” Signatories included parents of Dalcho students and “citizens of the community” generally. Edwards then delivered the petition to the school's board of trustees.Footnote 52 According to John D. Coleman, who chaired the board, the trustees were well aware of local doubts concerning the Kirbys’ whiteness. Questions had arisen when the light-skinned Kirby orphans first applied for admission to Dalcho, Coleman later testified. Nonetheless, out of respect for George Tucker, the boys’ highly regarded (and indisputably “white”) uncle, the trustees “thought it a business thing to do to let them go to school” at Dalcho.Footnote 53 The trustees vowed to reconsider their offer of admission, however, should the boys’ attendance “in some way become detrimental” to the school.Footnote 54

Subsequent events persuaded the trustees to rethink their offer of admission. Following the Kirbys’ matriculation, four other allegedly mixed-race children, “some of whom were a good deal darker” than the Kirbys, sought to enroll in the school. That, plus Edwards's petition, convinced the board to dismiss the Kirbys. The boys’ continued attendance at Dalcho was not in the school's best interest, the trustees determined, because the parents of the school's other pupils “would not want their children raised up with” the Kirbys and others of their kind.Footnote 55 Therefore, on or around January 24, 1913, the trustees dismissed Dudley, Eugene, and Herbert Kirby. They then “had a talk . . . with Mr. Tucker, and gave the reason for dismiss[al], ‘that the children were not white.’”Footnote 56

When determining whether or not the Kirby children were white, the Dalcho School's trustees ignored the South Carolina Constitution of 1895. The marital provisions of this document defined as non-white anyone “who shall have one-eighth or more negro blood.”Footnote 57 Although the Constitution was ostensibly the supreme law of the state, the Dalcho School's trustees paid no attention to its one-eighth Negro-blood rule. Nor did they base their decision on an assessment of the children's appearance or behavior. Rather than relying on law books, or on their own eyes, the trustees relied on their ears. The boys’ community reputation would determine their racial identity, in the minds of the trustees. “In dismissing them,” Trustee Chair Coleman later explained, “we did not investigate what mixture of blood was in them.” Instead, Coleman based his vote on “what I have heard people say.”Footnote 58 Trustee J.F. Williams reported that the board “did not act from appearance,” but rather from “reputation and petition.”Footnote 59 Trustee L.E. Dew explained that the Kirbys were dismissed “because they had the reputation of not being pure-blooded.”Footnote 60

George Tucker protested his nephews’ expulsion. Much like the trustees, he based his racial argument on local reputation, not statewide law. The Kirby children, he insisted, had “never been considered anything but white.”Footnote 61

Tucker appealed the trustees’ decision to the Dillon County Board of Education. On February 24, 1913, a month after the dismissals, the board conducted a hearing on the matter.Footnote 62 The most explicit testimony about the Kirby children's racial identity alleged that they were neither black nor white, but Croatan Indian. Dalcho resident G. F. Bethea testified that he had known the late John Kirby, the children's father, “and he was considered a Croatan.”Footnote 63 School Trustee Coleman stated that the children were “neither white nor black, but were Croatan.”Footnote 64

Describing someone as “Croatan” raised as many genealogical questions as it answered. According to the 1910 census, only about 8% of Croatans were “full blooded” Indians. The rest were “mixed blood.” No Indian tribe in the country had a higher proportion of “mixed blooded” members. Although most Croatans mixed Indian with white lineage, an estimated 12%, according to the 1910 census, had partial “Negro” ancestry.Footnote 65 If the testimony at the Kirby hearing is to be believed, however, the Kirbys were not among the minority of Croatans who had “Negro” ancestry. No witness alleged that the Kirbys had any “Negro” blood whatsoever.Footnote 66

The testimony offered at the Board of Education hearing demonstrates that school officials had constructed a three-way local racial divide, and had placed the Kirby children in the Croatan category. At the time, the Dalcho school district contained approximately eighty white students and 120 “Negro” students.Footnote 67 Yet trustee Coleman stated that the Kirbys belonged to a third racial classification, one whose school-age cohort in the district numbered just “10 or 12.” He meant the Croatans.

The school to which the trustees proposed to send the Kirby children provides additional evidence that school officials viewed them as neither “Negro” nor white. As of 1913, the Dalcho district operated one “white” school (the Dalcho School) and two “Negro” schools. Yet when considering where the expelled Kirbys might study, the trustees admitted that the district operated no schools for “children of this class,” that is, Croatans. Years previously, Coleman stated, the district had “established a separate school” for “children of this class,” who were neither black nor white. Unable to retain a sufficient number of teachers, however, the school had closed, leaving no local educational options for “children of this class.”Footnote 68

Those who expelled the Kirby children considered them neither black nor white. They considered them Croatan Indians.Footnote 69

The Legal System Imposes the Black–White Paradigm

As the case progressed through the South Carolina appeals process, evidence of the boys’ alleged Croatan identity faded. The further the case traveled from its home community, the more it assumed the appearance of a binary (black–white) racial dispute, the sort of legal dispute that predominated statewide, region-wide, and nationwide. The courts validated the power of local communities to play leading roles in the determination of racial identity. They did so, however, in a way that erased the Croatan evidence and transformed the dispute into one involving the “one drop of ‘Negro’ blood” rule. The “one drop” rule did not figure in the factual record of the Kirby case, but because it was useful to the administration of the Jim Crow system generally, it featured prominently in the case's resolution.

The Board of Education Hearing

Although the attorneys for both sides were from the local area, and therefore were familiar with local social conventions concerning Croatans, both legal teams had extensive statewide legal experience. James Gibson, the Dillon County lawyer who represented George Tucker, was a leading member of the local bar and a familiar presence in the State Supreme Court.Footnote 70 Lanneau D. Lide, who represented school officials, also had a state-wide professional portfolio.Footnote 71

The only known surviving record of the Dillon County Board of Education hearing reports no lawyer questions, only witness testimony.Footnote 72 Nonetheless, the synopsis strongly suggests that lawyers’ questions guided witness testimony. This is evident both from the substance of the witnesses’ remarks and from references to “cross-examination” and “redirect examination.”Footnote 73

Witnesses in the Dillon County Board of Education hearing played down the case's locally distinctive tri-racialism and played up the black-white binary. Few witnesses provided positive declarations about the Kirbys’ alleged Croatan identity. The assertion that the Kirbys were “neither white nor black, but were Croatan” was an outlier.Footnote 74 Instead, guided by lawyers’ questions, witnesses tended to testify in negative terms that fit the black-white paradigm: the Kirbys were “not white,”Footnote 75 “not clear-blooded,”Footnote 76 “not pure white,”Footnote 77 or “not pure Caucasian blood.”Footnote 78 Some witnesses who did make positive declarations about the Kirbys’ racial identity did so in a guarded way, referring to the Kirbys as “mixed”Footnote 79 or “colored.”Footnote 80 No witnesses claimed that the Kirbys were “Negroes” or had any “Negro blood.”

The influence of lawyers was even more conspicuous in a series of questions about the Kirby family's interactions with other racial groups. Even though local expulsion advocates considered the Kirby children to be part Croatan, lawyers repeatedly asked witnesses to comment on the extent to which the boys associated with “Negroes” and whites, but not with Croatans. “I never heard of her . . . associating with negroes,” S. T. Godbolt testified in response to a lawyer's query about the Kirby boys’ mother.Footnote 81 Other witnesses stated that neither the boys’ fatherFootnote 82 nor the boys themselves associated with “Negroes.”Footnote 83 Lawyers appear similarly to have asked witnesses to discuss the Kirbys’ interactions with white people. John C. Sellers had heard that Kirbys attended white churches and schools.Footnote 84 J. E. Henry and John C. Hayes reported that John Kirby “associated with white people in a business way.”Footnote 85

When considered in the context of the Dalcho school district, this line of questioning, especially as it pertained to the Kirbys’ associations with “Negroes,” seems irrelevant. Expulsion advocates, after all, considered the boys part Croatan, not part Negro, and sought their removal to a Croatan school, not a Negro school. Yet no witness testified about the Kirbys’ associations with Croatans. Statewide, and indeed nationwide, however, association with Negroes was a standard feature of racial determination cases; association with Croatans was not. The lawyers’ awareness of this broader legal culture led them to generate a factual record in this tri-racial dispute that would fit comfortably within the day's prevailing biracial legal paradigm.

Tucker v. Blease in the South Carolina Supreme Court

In the spring of 1914, following losses in the Dillon County Board of Education and the South Carolina Board of Education hearings, George Tucker appealed his nephews’ expulsions to the South Carolina Supreme Court. He fared no better there. Chief Justice Eugene Gary's ruling upheld the boys’ dismissals and steered South Carolina racial determination law away from the state Constitution's “one-eighth” rule and toward the “one drop” rule. It also furthered the process, begun in the original board of education hearings, of filtering out evidence of the boys’ allegedly Croatan heritage, and analyzing their case in terms of black and white.

Two factors help explain the Tucker court's imposition of the black–white paradigm. The first looks backward, to legal precedent. Much of the prevailing law at the time—constitutional, statutory, and case law—emphasized a black–white racial binary. For example, Chief Justice Gary quoted the school-segregation provision of South Carolina's Constitution of 1895, a Jim Crow Constitution whose adoption was driven by racist demagogue “Pitchfork” Ben Tillman.Footnote 86 This provision divided the state's children into two groups, “white and colored,” and declared, in binary terms, that “no child of either race shall ever be permitted to attend a school provided for children of the other race.”Footnote 87

In addition, the chief justice quoted South Carolina's statutory and constitutional provisions barring interracial marriages and specifying the degree (one-eighth) of “Negro blood” that would prevent someone from marrying a white person in the state.Footnote 88 He also invoked classic segregationist precedents such as Plessy v. Ferguson Footnote 89 and Roberts v. City of Boston,Footnote 90 as well as passages from old South Carolina racial determination cases containing phrases such as the “admixture of negro blood”Footnote 91 and degrees of “African stock.”Footnote 92 The judicial impulse to discuss the new in terms of the existing surely influenced Gary's binary, black–white analysis in Tucker.

Second, by accommodating Tucker to the black–white paradigm, Chief Justice Gary was also looking forward, to the legal and social precedent that he hoped to set. Gary was a committed defender of Jim Crow, in the tradition of his mentor, South Carolina's Democratic political kingmaker “Pitchfork” Ben Tillman. Gary owed his public career to his association with Tillman. In 1890, when Tillman first ran for South Carolina governor, Gary was his running mate, as Democratic candidate for lieutenant governor.Footnote 93

The Democrats’ campaign that year was overtly white supremacist.Footnote 94 “White supremacy is the bulwark of our civilization,” their platform proclaimed. The platform denounced a federal proposal to protect African-American voting rights. It championed Jim Crow education and urged that school districts be drawn so as to allow “one white and one colored” school per district, “separate and distinct.” It urged a state constitutional convention to replace what Gary's stump speeches repeatedly denounced as the “carpet-bagger” Constitution of 1868.Footnote 95 The Tillman–Gary ticket swept to victory.Footnote 96

In 1893, Tillman appointed Gary to the South Carolina Supreme Court, prompting rumors that the governor was hatching a “plot to change the state judiciary” by packing it with “subservient judges.”Footnote 97 Critics, underwhelmed by Gary's legal credentials, attributed his ascension to his death grip on Tillman's coattails. Gary “caught on early,” critics sneered, “and has never let go.”Footnote 98 Subsequent commentators referred to Justice Gary as a “Tillmanite”Footnote 99 judge. Tillman himself infuriated critics by allegedly “taking it for granted and advertising to the world” that Justice Gary “will do what B. R. Tillman wants him to do” on the bench.Footnote 100 Gary became chief justice in 1912.Footnote 101

Tucker v. Blease presented Chief Justice Gary with an opportunity to sharpen the color line separating whites from blacks. At the time, the law of racial determination in South Carolina technically did not follow the “one drop” rule. Rather, it followed the “one-eighth” rule, as articulated in the marital provision of the 1895 Constitution. This provision made it unlawful for a white person to marry anyone “who shall have one-eighth or more negro blood.”Footnote 102 White supremacists objected to the “one-eighth” rule because they believed it allowed racial mixing to occur. As Chief Justice Gary recognized in Tucker, the provision entitled “the child of parents, where one of them was a white person, and the other had less than one-eighth of negro blood, to be classed as a white person [emphasis in original].”Footnote 103 In other words, under South Carolina law, some people with some “Negro blood” technically qualified as white.

Gary candidly acknowledged that the “one-eighth” rule, if applied in Tucker, would compel the children's reinstatement. Even if the so-called non-white “blood” in question had been “Negro,” not Croatan, its proportion in the Kirby children's veins was far less than one-eighth. Only one witness at the Dillon County Board of Education hearing, John C. Sellers, offered specific testimony regarding the racial makeup of the Kirby children. Sellers, an authority on local history and genealogy, traced the Kirby family tree. He calculated that the “per cent. of the colored [non-white] blood in the Kirby children is one-thirty-second.” This fell far below the one-eighth threshold.Footnote 104 No witness challenged Sellers's findings. The clarity of this testimony led Chief Justice Gary to a conclusion that he found disagreeable but inescapable: As a technical legal matter, as he put it in his ruling, these “children are entitled to be classed as white.”Footnote 105

But Gary was unwilling to leave it at that. He chose not to invoke the “one-eighth” rule from his state's Constitution. Instead, in tones reminiscent of the day's sociological jurisprudence, he suggested that the legal analysis should move beyond technical, legalistic rules to consider community mores and the greater social good. “The law recognizes that there is a social element,” he reasoned, “arising from racial instinct.” This “racial instinct” arose naturally “between those with and those without negro blood.” With this phrasing—the divide between “those with and those without negro blood”—Gary carved out a “one drop” exception to the South Carolina Constitution's “one-eighth” rule. He held that a child of a mixed marriage, whose non-white parent had less than one-eighth “Negro” blood, was entitled to “exercise all the legal rights of a white person, except those arising from a proper classification, when equal accommodations are afforded [emphasis added].”Footnote 106 Gary thus legitimated the white parents’ complaints about the Kirby children's continued attendance at the Dalcho School, complaints that presumably arose naturally from the “racial instinct” dividing “those with and those without negro blood.” The Chief Justice invoked this “negro blood” factor even though the factual record in Tucker alleged not a single drop of “negro blood.”

Gary concluded that the Dalcho trustees were justified in dismissing the Kirbys. He cited a 1912 South Carolina law authorizing public school trustees “to dismiss pupils, when the best interest of the schools make it necessary.”Footnote 107 “[T]he decided majority of the patrons would refuse to send their children to the Dalcho school if the Kirby children were allowed to continue in attendance,” Gary found. “Tested by the maxim, ‘The greatest good to the largest number,’ it would seem to be far better that the children in question should be segregated than that the large majority of the children attending that school should be denied educational advantages.” As long as the Kirby children and others of “their class” were provided with separate-but-equal accommodations, he reasoned, their exclusion from Dalcho School was legal, even though the state Constitution's “one-eighth” rule technically entitled them “to be classed as white.”

One of Gary's Supreme Court colleagues appears to have rejected his reasoning, at least initially. In April of 1914, when the Tucker ruling was first reported, newspapers stated that Associate Justice George W. Gage had written a dissenting opinion. Gage was a newcomer to courtFootnote 108 who appears to have been more racially liberal than the Tillmanite Chief Justice.Footnote 109 Apparently believing that the Constitution's “one-eighth” rule settled the matter, Gage's alleged dissent spoke out against Chief Justice Gary's unilateral imposition of the “one drop” rule. “If these [Kirby] children are white and are ‘entitled to be classed as white,’” Gage's dissent argued, according to press reports, “then they may not be rightfully excluded from schools made up of white children.”Footnote 110 For reasons unknown, however, Gage subsequently withdrew his dissent. Later news articles reported that Gage voted with the majority.Footnote 111 The published opinion itself contains no evidence of a dissenting opinion.Footnote 112

Officially, then, a unanimous South Carolina Supreme Court used a case concerning Croatans (not blacks) to sharpen the line between “those with and those without negro blood” in South Carolina.

The Case Lives On

Chief Justice Gary's ruling had the desired effect. It imposed the “one drop” ruleFootnote 113 and strongly reinforced a binary conception of race. Newspaper reporting on the case accepted the “black–white paradigm.” The press mentioned neither the Kirbys’ allegedly Croatan origins nor the separate-but-equal Indian schooling that the ruling cryptically prescribed. Instead, it emphasized the case's implications for black–white relations in and beyond South Carolina. The Columbia Record described Tucker v. Blease as “an illuminating commentary on the social condition of the negro in this State and generally throughout the South.”Footnote 114 Newspapers across the region followed suit.Footnote 115

Legal scholars have generally written about the case in similar terms. A 1934 piece in the California Law Review invoked Tucker while discussing the proposition that “the least ascertainable trace of negro blood” might control in some areas (such as school segregation), even if other standards for racial determination applied in other areas (such as marriage).Footnote 116 A 1951 piece in the Michigan Law Review cited Tucker to demonstrate that even white-seeming children might yet be barred from white schools “if there were a solitary distant Negro forebear.”Footnote 117 More recently, Daniel Sharfstein discussed Tucker in a piece about the “one drop” rule and the legal treatment of “whites with African ancestry.”Footnote 118 Sharfstein highlighted Chief Justice Gary's line about the “racial instinct” dividing “those with and those without negro blood.”Footnote 119

Likewise, lawyers and judges have uniformly interpreted Tucker v. Blease in terms of the black–white paradigm. Three subsequent appellate rulings cited Tucker; all three discussed the case in racially binary terms. Johnson v. Board of Education, a 1914 school segregation ruling from North Carolina, described Tucker v. Blease, then just five months old, as a case whose “facts are practically the same as those in this record,” even though Johnson, unlike Tucker, specified that the children in question had “partial Negro parentage.”Footnote 120 The 1920 Oklahoma school segregation case Jelsma v. Butler included Tucker in a long list of cases establishing, in racially binary terms, the constitutionality of segregating the two races “by requiring separate schools for each and prohibiting members of either race from attending the school provided for the other.”Footnote 121 Perhaps most intriguing is Gong Lum v. Rice, a 1927 case from the United States Supreme Court. Martha Lum was a Chinese student who wanted to attend an all-white public school, rather than the “colored” school that Mississippi had ordered her to attend. “[C]olored,” her lawyers argued, “describes only one race, and that is the negro.” In defense of this proposition, her lawyers cited, ironically, Tucker v. Blease.Footnote 122

Late in the twentieth century, LexisNexis prepared a “Case Summary” as a preface to Tucker v. Blease. This synopsis eclipsed even Chief Justice Gary's original opinion in its reinforcement of the “black–white paradigm.” Gary's 1914 ruling masked testimony alleging that the Kirbys were part-Croatan, and implied, though did not explicitly assert, that the children were part “Negro.” LexisNexis was not so guarded. Its “Case Summary” reported that the Kirbys were dismissed from school “because they were allegedly part black.”Footnote 123

Conclusion

The deep history of Tucker v. Blease exposes the inherent inaccuracy of the “black–white paradigm.” The United States—even in the Deep South during the Jim Crow era—was always more multicultural and multi-ethnic than the paradigm suggests. The story also illuminates the role that state-level legal systems played in the paradigm's creation. The Tucker court consciously filtered out evidence of multi-ethnic complexity and described Dillon County's social world in black-and-white terms. Thereafter, journalists, lawyers, judges, law reporters, and scholars all discussed the case (and surely other similar cases) in ways that reinforced this racially binary understanding of southern society.

Tucker also highlights the extraordinary indeterminacy of racial classification law in Progressive Era South Carolina. As the case's narrative demonstrates, neither the law's content nor its provenance were at all clear. Three different legal rules, springing from as many sources, struggled for supremacy. The first and most obvious source of racial determination law was the South Carolina Constitution of 1895, which employed a “one-eighth” rule for classifying persons as “negro or mulatto.”Footnote 124 Although the state Constitution is supposed to be the supreme law of the state, in fact it proved to be the weakest of the three rules in Tucker.

The second source of law was local opinion. In Tucker, neighbors sought to remove the Kirby children from an all-white public school on grounds that they were not believed to be white, even though the Kirbys technically qualified as white under the state Constitution. After verifying that neighbors regarded the Kirbys as non-white, the public school agreed to expel them. The school, in other words, ignored the Constitution's “one-eighth” rule and substituted a locally administered “community reputation” test for racial determination.

The third source of law was the South Carolina Supreme Court. This tribunal upheld the school's decision to ignore the state Constitution and expel technically white children from an all-white school. In one way, Chief Justice Gary's ruling favored local over statewide control of racial determination. In another way, however, the ruling represented a dramatic assertion of centralizing judicial power. Gary used that power to eviscerate the Constitution's “one-eighth” rule and to put a “one drop” rule in its place. Moreover, he consciously obscured the three-way (black/white/Indian) segregation that was locally at issue in Tucker, and wrote his opinion as if the case concerned just two classes of people: “those with and those without negro blood.” Compared to judges in civil law jurisdictions, such as the German judges discussed in Thomas Pegelow Kaplan's piece following, appellate judges in South Carolina, a common law jurisdiction, had tremendous power to make law. Chief Justice Gary used that power aggressively in furtherance of white supremacy.

As for the Kirbys, these brothers, who were deemed insufficiently white to study in the Dalcho School, were nonetheless white enough to join “white” Army units in World War I, as Uncle Sam's segregated ranks fought to “make the world safe for democracy.”Footnote 125

References

1. The phrase “always properly behaved” comes from the testimony of J.F. Williams. Tucker v. Blease, 81 S.E. 668 at 669 (South Carolina, 1914). The phrase “good pupils” comes from the testimony of Will Baxley. Ibid., 670. The phrase “never exercised any bad influence in school” comes from the testimony of L.E. Dew. Ibid., 670.

2. Tucker v. Blease, 81 S.E. 668 at 675 (1914).

3. Ibid.

4. Ibid., 673.

5. See McGovney, Dudley O., “Naturalization of the Mixed-Blood: A Dictum,” California Law Review 2 (1934): 377–91CrossRefGoogle Scholar; Ransmeier, Joseph S., “The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,” Michigan Law Review, 50 (1951): 203–60CrossRefGoogle Scholar; Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One–Drop Rule, 1600-1860,” Minnesota Law Review, 91 (2007): 592–656Google Scholar; Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar; Sweet, Frank W., Legal History of the Color Line (Palm Coast: Backintyme, 2005), 403–4Google Scholar. These sources’ interpretations are discussed in greater detail below.

6. Seigel, Macol, “Beyond Compare: Comparative Method after the Transnational Turn,” Radical History Review 91 (2005): 73Google Scholar.

7. See, most famously, Tanenbaum, Frank, Slave and Citizen: The New Negro in the Americas (New York: Alfred A. Knopf, 1947)Google Scholar. Regarding DuBois's use of the Brazilian contrast to critique United States race relations, see Seigel, “Beyond Compare” (2005): 71–72. Portuguese scholar Gilberto Freyre's The Masters and the Slaves, published in Portuguese in 1933 and in English in 1946, influenced many U.S. scholars. Freyre, Gilberto, Casa-grande & senzala; formação da familia brasileira sob o regimen de economia patriarchal (Rio de Janeiro: Schmidt, 1936)Google Scholar; and The Masters and the Slaves: A Study in the Development of Brazilian Civilization (New York: Knopf, 1946)Google Scholar. Regarding Freyre and his influence, see Skidmore, Thomas E., “Racial Mixture and Affirmative Action: The Cases of Brazil and the United States,” American Historical Review 108 (2003): 1393CrossRefGoogle Scholar.

8. Frazier, E. Franklin, “Brazil Has No Race Problem,” Common Sense (November 11, 1942): 363–65Google Scholar.

9. Quoted in Eder, Donald Gray, “Time under the Southern Cross: The Tannenbaum Thesis Reappraised,” Agricultural History 50 (1976): 600–14Google Scholar.

10. Elkins, Stanley M., Slavery: A Problem in American Institutional and Intellectual Life (Chicago: University of Chicago Press, 1959), 63Google Scholar.

11. Ibid., 79.

12. Hoetink, H[arry], The Two Variants in Caribbean Race Relations (London: Oxford University Press, 1967), 46–47Google Scholar.

13. Micol Seigel, “Beyond Compare,” 76.

14. “Dr. Frank Tannenbaum, 76, Dies,” New York Times (June 2, 1969): 45.

15. See Jacobson, Matthew Frye, Roots Too: White Ethnic Revival in Post-Civil Rights America (Cambridge: Harvard University Press, 2006CrossRefGoogle Scholar); Hollinger, David A., “Amalgamation and Hypodescent: The Question of Ethnoracial Mixture in the History of the United States,” American Historical Review 108 (2003): 1381CrossRefGoogle Scholar; and Novak, Michael, The Rise of the Unmeltable Ethnics (New York: The Macmillan Company, 1971)Google Scholar.

16. See, for example, Feagin, Joe R., “White Supremacy and Mexican Americans: Rethinking the ‘Black-White Paradigm,” Rutgers Law Review 54 (2002): 959–87Google Scholar; Gee, Harvey, “Race, Rights, and the Asian American Experience: A Review Essay,” Georgetown Immigration Law Journal 13 (1999): 635–51Google Scholar; Espiritu, Yen Le, “Colonial Oppression, Labour Importation, and Group Formation: Filipinos in the United States,” Ethnic and Racial Studies 19 (1996): 29–48CrossRefGoogle Scholar; Webb, Clive, “The Lynching of Sicilian Immigrants in the American South, 1886–1910,” American Nineteenth Century History 3 (2002): 45–76CrossRefGoogle Scholar; Carrigan, William D. and Webb, Clive, “The Lynching of Persons of Mexican Origin or Descent in the United States, 1848–1928,” Journal of Social History 37 (2003): 411–38CrossRefGoogle Scholar; Brownrigg, Coya Paz, “‘Lynchocracia’: Performing ‘America’ in ‘El Clamor Publico,’” California History 84 (2006–07): 40–53CrossRefGoogle Scholar; Sheridan, Clare, “‘Another White Race’: Mexican Americans and the Paradox of Whiteness in Jury Selection,” Law and History Review 21 (2003): 109–144CrossRefGoogle Scholar; and Moran, Rachel F., Interracial Intimacy: The Regulation of Race and Romance (Chicago: University of Chicago Press, 2001)Google Scholar. All of these works seek to transcend the “black–white paradigm.”

17. Degler, Carl N., Neither Black nor White: Slavery and Race Relations in Brazil and the United States (New York: The MacMillan Company, 1971), xiGoogle Scholar. Degler's designation as a “liberal historian” comes from Drimmer, Melvin, “Neither Black nor White: Carl Degler's Study of Slavery in Two Societies,” Phylon, 40 (1979)CrossRefGoogle Scholar: 97.

18. Wilkerson, Isabel, “The All American,” Essence 28 (1997): 99–100 + Google Scholar.

19. Lopez, Ian Haney, White by Law: The Legal Construction of Race (New York: New York University Press, 1996)Google Scholar; Pascoe, Peggy, “Miscegenation Law, Court Cases, and Ideologies of ‘Race’ in Twentieth-Century America,” Journal of American History 83 (1996): 44–69CrossRefGoogle Scholar; Gross, Ariela, “‘Of Portuguese Origin’: Litigating Identity and Citizenship among the ‘Little Races’ in Nineteenth-Century America,” Law and History Review 25 (2007): 467–512CrossRefGoogle Scholar; and Gross, Ariela, What Blood Won't Tell: A History of Race on Trial in America (Cambridge: Harvard University Press, 2008)CrossRefGoogle Scholar.

20. Pascoe, “Miscegenation Law,” 51; Haney Lopez, White by Law.

21. Judge Samuel L. Pattee in Kirby v. Kirby, cited in Pascoe, “Miscegenation Law,” 51.

22. Dillon County was carved out of Marion County in 1910. Thomas Hunter McEaddy, “The Creation of Dillon County” (Columbia: University of South Carolina, c. 1971), paper prepared for graduate course in South Carolina history at the University of South Carolina, held at the Dillon County Library. The new county had about twenty-two thousand residents, many of whom were farm laborers who worked the cotton crop. Thirteenth Census of the United States, vol. 3: 661.

23. “Act to Provide for Separate Schools for Croatan Indians in Robeson County,” Laws of North Carolina, 1885, ch. 51, in Dial, Adolph L. and Eliades, David K., The Only Land I Know: A History of the Lumbee Indians (Syracuse, N.Y.: Syracuse UP, 1996), Appendix B, 182–83Google Scholar; and McMillan, Hamilton, Sir Walter Raleigh's Lost Colony (Raleigh, NC: Edwards & Broughton, 1907), 40–41Google Scholar; “An Act to Change the Name of the Indians in Robeson County and to Provide for Said Indians Separate Apartments in the State Hospital,” Public Laws of North Carolina, ch. 215, 1911, in Dial and Eliades, Appendix B; “An Act to Restore to the Indians Residing in Robeson and Adjoining Counties their Rightful and Ancestral Name,” Public Laws of North Carolina, ch. 123, 1913, in Dial and Eliades, Appendix B; United States Senate, Indians of North Carolina: Letter From the Secretary of the Interior Transmitting, In Response to a Senate Resolution of June 30, 1914, A Report on the Condition and Tribal Rights of the Indians of Robeson and Adjoining Counties of North Carolina, 63rd Congress, 3rd Session, Document No. 677, 1915; “An Act Relating to the Lumbee Indians of North Carolina,” North Carolina Session Laws, ch. 874, 1953, Dial and Eliades, 18–21. Also see “30,000 North Carolinians Vote Themselves a Name,” The Carolina Indian Voice, December 14, 1978, 9, reprinted from The State, January 26, 1952; Padget, Cindy D., “The Lost Indians of the Lost Colony: A Critical Legal Study of the Lumbee Indians of North Carolina,” American Indian Law Review 21 (1997): 408–09CrossRefGoogle Scholar; McCulloch, Anne M. nd Wilkins, David E., “‘Constucting’ Nations within States: The Quest for Federal Recognition by the Catawba and Lumbee Tribes,” American Indian Quarterly 19 (Summer 1995): 378–80CrossRefGoogle Scholar.

24. Only the Cherokee, Chippewa, Choctaw, Creek, Navajo, and Teton Sioux ranked ahead of the Croatans in population. Department of Commerce, Bureau of Census, Indian Population in the United States and Alaska, 1910 (Washington, D.C.: Government Printing Office, 1915), 17–21Google Scholar.

25. According to one contemporary estimate, 6,278 Croatan Indians lived in North Carolina in 1910, 5,895 of whom lived in Robeson County. “Report on Tribal Rights of Croatans,” Charlotte Observer, May 18, 1915, 12.

26. Laws and Resolutions of the State of North Carolina, 1885, Public Laws, ch. 51; E. Dale Davis, “The Lumbee Indians of Robeson County, North Carolina, and Their Schools,” paper presented at the National Conference of Christians and Jews, Pembroke, NC, December 19, 1986, 1–4; and V. Ray Thompson, “A History of the Education of the Lumbee Indians of Robeson County, North Carolina from 1885 to 1970” (Ed.D. Dissertation: University of Miami, 1973), 39–43. For more on the Lumbee and segregated schools, see Dial, Adolph L., The Lumbee (New York: Chelsea House, 1993), 57–61Google Scholar; “Legislature's Dull Day,” Charlotte Observer January 19, 1907, 1; and Wertheimer, John, Law and Society in the South: A History of North Carolina Court Cases (Lexington: University Press of Kentucky, 2009), 165–89Google Scholar.

27. According to contemporary press reports, Croatan Indians resided “chiefly in Robeson County,” although a “few of the same class of people reside in Bladen, Columbus, Cumberland, Scotland, and Hoke Counties, North Carolina, and in Sumter, Marlboro, and Dillon Counties, South Carolina” “Report on Tribal Rights of Croatans,” Charlotte Observer, May 18, 1915, 12.

28. According to the 1910 census, Dillon County had 10,999 whites, 11,539 “Negros,” and seventy-seven Indians. Thirteenth Census of the United States, vol. 3, 660.

29. Ibid.

30. One sample of twenty-four Dillon County “Indians” listed in the 1910 census contained thirteen who had been born in North Carolina. Many of these Dillon County Indians had surnames that, despite unusual spellings, Robeson County residents would, to this day, recognize as distinctly “Lumbee”: e.g., Oxendine, Locklayer, Chavas, Dials. United States Census, 1910.

31. “Negro Badly Beaten,” The State [Columbia, S.C.], July 18, 1911, 3.

32. “Further Details of Berry Killing: Many Rumors Conflict with Accepted Version,” The State [Columbia, S.C.], March 8, 1911, 9.

33. Shot in Family Row: Bob Locklear Seriously Wounded by Ed Chavis,” The State [Columbia, S.C.], May 30, 1911, 12.

34. Constitution of the State of South Carolina, 1895, Art. XI, Sec. 7.

35. See, for example, Annual Records of the State Superintendent of Education of South Carolina; “Public Schools of Dillon County, S.C.,” State Department of Education Bulletin (October 1915); and “What the Schools Cost,” Dillon Herald, November 6, 1913, 7.

36. “Well Meant Criticisms and Timely Suggestions,” Dillon Herald, April 23, 1914, 1. Another example was Colleton County, South Carolina, which maintained Native American schools at Four Holes and Creeltown. See Perdue, Theda and Green, Michael D., The Columbia Guide to American Indians of the Southeast (New York: Columbia University Press, 2001), 138Google Scholar.

37. For contemporary evidence of these phenomena in the Carolinas, see “Croatan Case Was Decided,” The State [Columbia, S.C.] June 12, 1908, 11 (the South Carolina State Board of Education upheld a local decision to dismiss a pupil alleged to contain one-fourth Indian blood from a white school); and Charlotte Observer, September 11, 1902, 4 (a story about Edgecombe County, NC, where “[t]he law forbids Croatan children attending white schools, but it seems that they are not willing for their children to attend colored schools” for “[t]hey don't like the negroes”).

38. “What the Schools Cost,” Dillon Herald, November 6, 1913, 7. Per capita expenditure by counties for schoolchildren completed by J.E. Swearingen, State Superintendent of Education. Here are the per capita educational figures: Dillon County spent $25.56 per white student, $1.28 per “Negro” student, and $12.34 per capita for both races. South Carolina spent $13.99 per white student, $1.87 per “negro” student, and $7.29 per capita for both races. Of forty-four reporting counties in the state, Dillon ranked sixth in per capita spending for whites and twenty-eighth in per capita spending for “Negroes.”

39. Dillon County had at least one other Native American School at that time: the Sardis Indian School. See Stokes, Durward T., The History of Dillon County, South Carolina (Columbia: Univerity of South Carolina Press, 1978), 150Google Scholar. The Sardis Indian School continued to operate until 1952. See Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar. The Sardis Indian School appears to have been located near the town of Latta, approximately four miles away from Dalcho's white public school, where the Kirby boys studied.

40. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

41. Ibid., 671.

42. 1900 Census, Dillon County, South Carolina. Roll 1535: 154; and 1910 Census, Dillon County, South Carolina. Roll 1458: 171.

43. Of the 176,434 acres of used farmland in Dillon County, 65,213 acres were worked by 711 farm owners. The remaining 111,221 acres were run by 1934 renters, including both sharecroppers and tenant farmers. See Thirteenth Census of the United States, Vol. VII, Agriculture. For evidence of the Kirbys’ landownership, see “J.D. McLucas to John C. Kirby,” Marion County Deed Book CCC: 192–93; “E.B. Berry to John C. Kirby,” Marion County Deed Book ZZ: 56–57; “J. Kirby to Tilghman Lumber Co.,” Marion County Conveyances, Book III (1905): 104; and Tucker v. Blease, 81 S.E. 668 at 669 (1914).

44. “Physician Shoots, Perhaps Kills: Dr. H.A. Edwards and John Kirby of Dillon Fight,” The State [Columbia, S.C.], June 16, 1909, 1. At the coroner's inquest, the jury deemed the killing “justifiable.” “John Kirby Succumbs to his Many Wounds,” The State [Columbia, S.C.], June 18, 1909, 1. Ex Parte Mrs. Annie Kirby (1909).

45. Lucy Kirby died on November 16, 1909, just days before her eighteenth birthday. Headstone, Mt. Holly Cemetery, Dillon County.

46. The children were: Eddie, 15; Lila, 10; Herbert, 9; Eugene, 8; Dudley, 7; Dessie, 5; and John C, 3. United States Census of 1910, South Carolina, Dillon County, Manning Township, Supervisor's District no. 60; Enumeration District No. 68, sheet no. 17B.

47. Annie Kirby died on November 11, 1910. Headstone, Mt. Holly Cemetery, Dillon County, South Carolina.

48. The “industrious and successful farmer” quotation comes from George Tucker's obituary, “Death Notices,” The State [Columbia, S.C.], March 3, 1916. Additional information in this paragraph comes from: Tucker v. Blease, 81 S.E. 668 at 670–72 (1914); Thirteenth Census of the United States (1910), South Carolina, Dillon County, Bethea Township; and Tucker family headstones, Catfish Creek Baptist Church Cemetery, Latta, South Carolina.

49. One contemporary of the Kirby brothers who studied at Dalcho during these years reported that many Dalcho teachers “would compare with the best.” This Kirby peer, who later studied at Yale University, noted that many Dalcho alumni went on to distinguished collegiate and professional careers. Clarence Boyce Allen, quoted in Stokes, Durward T., The History of Dillon County, South Carolina (Columbia, South Carolina: University of South Carolina Press, 1978)Google Scholar, 146.

50. Tucker v. Blease, 81 S.E. 668 at 670 (1914).

51. Sam Edwards was the brother of Dr. H. A. Edwards, who killed John Kirby in 1909. Sam Edwards's protestation at a subsequent hearing that neither he nor his petition had “anything to do with the killing of John Kirby” reveals local suspicion that a connection may have existed. Tucker v. Blease, 81 S.E. 668 at 670 (1914); “Physician Shoots, Perhaps Kills: Dr. H. A. Edwards and John Kirby of Dillon Fight,” The State [Columbia, S.C.], June 16, 1909, 1; and “John Kirby Succumbs to His Many Wounds,” The State [Columbia, S.C.], June 18, 1909, 1.

52. Tucker v. Blease, 81 S.E. 668 at 670 (1914).

53. Ibid., 669.

54. Ibid., 669.

55. Ibid., 669.

56. Ibid., 669, 672.

57. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

58. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

59. Ibid.

60. Ibid.

61. Ibid.

62. Ibid., 672.

63. Ibid., 670–71.

64. Ibid., 669. Coleman referred to the children as neither white nor black, but “Croatan or mulatto.” Indians were often categorized as “mulatto.” The 1910 census, indeed, reports no Indians in Bethea Township near the Dalcho School, but does list eight families as “mulatto” including the family of Millard Locklear. Locklear is a common Lumbee (Croatan) surname, strongly suggesting that the census listed Croatans as mulatto. For more on the use of “mulatto” to refer to Native Americans, see Gross, Ariela, “‘Of Portuguese Origin’: Litigating Identity and Citizenship among the ‘Little Races’ in Nineteenth-Century America,” Law and History Review 25 (2007)CrossRefGoogle Scholar: 478.

65. Department of Commerce, Bureau of Census, Indian Population in the United States and Alaska, 1910 (Washington, D.C.: Government Printing Office, 1915), 36–38Google Scholar. As a general matter, the census suspected that Indian–black mixing was underreported nationally, because of what the census described as a general “disinclination to admit Negro blood.” Therefore, the 12% estimate for Croatans of partial African ancestry may be an understatement. Ibid., 38.

66. Tucker v. Blease, 81 S.E. 668 (1914).

67. Annual Records of the South Carolina State Superintendent of Education, Dillon County, “Table 3. Schools, Enrollment, Average Attendance,” 325.

68. Ibid. Securing teachers for Native American schools was a persistent problem at the time. See Berry, Brewton, Almost White (London: Collier-Macmillan Ltd., 1963) 123–26Google Scholar. The trustees claimed that they had “been paying the tuition of children of this class anywhere they could get in school,” given the absence of local alternatives. Ibid., 669.

69. Trustee Chair Coleman further distinguished the Kirbys’ “class” from “Negroes” when adding that “people of this class had a space set apart for them in Catfish Baptist church, as did also the negroes [emphasis added].” Ibid.

70. Gibson was a future president of the Dillon County Bar Association. See Snowden, Yates, ed., History of South Carolina, Vol. IV (Chicago: Lewis Publishing Company, 1920), 141Google Scholar.

71. Lanneau Lide was from Marion County, which abutted Dillon County to the south. Prior to participating in Tucker v. Blease, Lide had worked as a private secretary to a State Supreme Court justice; subsequently, he would serve in the state legislature and on the state bench. Snowden, ed., History of South Carolina, 133; “Lanneauu Durant Lide, 1876–1953,” University of South Carolina School of Law's “Memory Hold the Door”, available at http://law.sc.edu/memory/1958/lideld.shtml, accessed June 10, 2009.

72. The case began with a Dillon County Board of Education hearing, proceeded to a South Carolina Board of Education appeal, and ended in the State Supreme Court. Tucker v. Blease, 81 S.E. 668 (1914); and “Former Students Get Scholarships,” The State [Columbia, S.C.], August 29, 1913, 12.

73. Tucker v. Blease, 81 S.E. 668 at 669 (1914).

74. Ibid.

75. Ibid., 670.

76. Ibid., 670.

77. Ibid., 670.

78. Ibid., 669.

79. Ibid., 669, 671.

80. Ibid., 669–71.

81. Ibid., 670.

82. John C. Sellers testified that John Kirby “didn't associate with Negroes.” Tucker v. Blease, 81 S.E. 668 at 671 (1914).

83. J.F. Williams stated that he did “not know of these children [the Kirbys] associating with Negroes.” Ibid., 669.

84. Ibid., 671.

85. Ibid., 670. G. F. Bethea did not know “whether [John Kirby] associated with white people, except in a business way.” Ibid., 671. Note also that Trustee Coleman reported that John Kirby, the boys’ father, “associated with colored people.” Ibid., 669.

86. For more on Tillman, including his relation to the South Carolina Constitution of 1895, see Kantowitz, Stephen, Ben Tillman and the Reconstruction of White Supremacy (Chapel Hill: University of North Carolina Press, 2000)Google Scholar.

87. Constitution of the State of South Carolina, 1895, Sec. 7, art. III, quoted in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

88. Constitution of the State of South Carolina, 1895, Sec. 33, art. III, quoted in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

89. 163 U.S. 537 (1896), cited in Tucker v. Blease, 81 S.E. 668 at 674 (1914).

90. 59 Mass. 198 (1850), cited in Tucker v. Blease, 81 S.E. 668 at 674 (1914).

91. State v. Cantey, 20 S.C.L. 614 (1835), cited in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

92. White v. Tax Collector, 37 S.C.L. 136 (1846), cited in Tucker v. Blease, 81 S.E. 668 at 673 (1914).

93. U.R. Brooks, “Associate Justice Eugene B. Gary,” in South Carolina Bench and Bar, vol. I (Columbia: The State Co., 1908): 78–80.

94. Kantowitz, Ben Tillman and the Reconstruction of White Supremacy, 143.

95. “South Carolina Democrats: Nominate Tillman for Governor—The Platform,” Springfield [Mass.] Republican, September 12, 1890, 5. Gary's stump speeches against the 1868 constitution are reported in “All Efforts to Harmonize Have Failed,” The State [Columbia, S.C.], July 29, 1895, 1.

96. “South Carolina: Tillman and the Regular Democrats Carry Off Everything,” Omaha [Nebraska] Morning World-Herald, November 5, 1890, 1.

97. “Want Subservient Judges: An Alleged Plot to Change the State Judiciary,” The State [Columbia, S.C.], October 2, 1893, 6.

98. “The New and the Old,” The State [Columbia, S.C.], December 2, 1893, 4.

99. “Latest Dispatches,” Savannah [Georgia] Tribune, August 4, 1894.

100. “The Imperial Ukase,” The State [Columbia, S.C.], July 23, 1894, 4.

101. Snowden, Yates, ed., History of South Carolina, vol. V (Chicago: Lewis Publishing Co., 1920), 3Google Scholar.

102. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

103. Tucker v. Blease, 81 S.E. 668 at 673 (1914). Emphasis in original.

104. Ibid., 671.

105. Ibid., 675.

106. Tucker v. Blease, 97 S.C. 326 (1914).

107. Subdivision 3 of section 1761, South Carolina Code of Laws 1912, providing that public schools’ boards of trustees “shall . . . have authority . . . to dismiss pupils, when the best interest of the schools make it necessary.”

108. “The Lawmakers of South Carolina: Gage Gets Promotion,” The State [Columbia, S.C.], January 16, 1914, 9; and “Judge Gage's Election,” The State [Columbia, S.C.], January 17, 1914, 4.

109. For evidence suggestive of Gage's comparative liberalism, see “No Verdict Yet in Risinger Case: Fate of Erastus Risinginer in the Hands of Lexington,” The State [Columbia, S.C.], September 24, 1910, 2; “Judge Censures Lexington: Jury Utters Scathing Words after Acquittal of Risinger,” The State [Columbia, S.C.], September 25, 1910, 1; “No Aid for Negroes,” The State [Columbia, S.C.], February 14, 1916, 5; “The Risinger Case,” The State [Columbia, S.C.], September 26, 1910, 4; and “Iguorance [sic] Cause of Crime: Judge Gage Charges Grand Jury to See that Good School Houses and Teachers Abound,” The State [Columbia, S.C.], March 2, 1911, 8.

110. “Sustains Ruling of State Board: Supreme Court Decides the Dalcho School Case,” The State [Columbia, S.C.], April 22, 1914, 14.

111. See “South Carolina Supreme Court: Synopses of Opinions in the Highest Tribunal,” The State [Columbia, S.C.], July 15, 1914, 15.

112. Tucker v. Blease, 81 S.E. 668 (1914).

113. Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review 91 (2007): 654Google Scholar.

114. “Three Children Are Prohibited in School Rooms”, Columbia [South Carolina] Record, April 22, 1914, 5.

115. See “Supreme Court Bars Children of Caucasian Blood,” Greenville [S.C.] Daily News, April 23, 1914, 8; “These Children Must Quit School for Whites,” News and Courier [Charleston, S.C.], April 22, 1914, 3; “Barred from White School,” Charlotte [North Carolina] Observer, April 22, 1914, 9. For a more neutral write-up of the ruling, one that does not mention the “condition of the Negro,” see “Sustains Ruling of State Board: Supreme Court Decides the Dalcho School Case,” The State [Columbia, SC], April 22, 1914, 14.

116. McGovney, Dudley O., “Naturalization of the Mixed-Blood: A Dictum,” California Law Review 22 (1934): 386CrossRefGoogle Scholar.

117. Ransmeier, Joseph S., “The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,” Michigan Law Review, 50 (1951): 254CrossRefGoogle Scholar.

118. Sharfstein, Daniel J., “Crossing the Color Line: Racial Migration and the One-Drop Rule, 1600–1860,” Minnesota Law Review, 91 (2007): 655Google Scholar. See also Ibid., 595.

119. Sharfstein, “Crossing the Color Line”: 654. Even a book dedicated to Native American affairs overlooks the Kirbys’ seeming Native American ancestry. See Paredes, J. Anthony, ed., Indians of the Southeastern United States in the Late Twentieth Century (Tuscaloosa: University of Alabama Press, 1992), 82Google Scholar. For a different, but also inaccurate, take on Tucker, see Sweet, Frank W., Legal History of the Color Line (Palm Coast: Backintyme, 2005), 403–4Google Scholar. Sweet asserts that witnesses in the Dalcho School case sought the Kirby children's expulsion only because “the ‘Kirby’ surname reminded people of the Croatans,” even though “no allegation was ever made that the Kirby children were anything other than of pure European ancestry.”

120. Johnson v. Board of Education., 166 N.C. 468 at 475 (1914).

121. Jelsma v. Butler, 80 Okla. 46; 194 P. 436 at 438 (1920).

122. Gong Lum v. Rice, 275 U.S. 78 (1927).

123. “Case Summary,” Tucker v. Blease, 8801, Supreme Court of South Carolina, 97 S.C. 303; 81 S.E. 668; 1914 S.C. LEXIS 189, April 21, 1914, Decided. The “late twentieth century” date of this blurb's creation is based on discussions with LexisNexis representatives, reported in “Susanna Boylston to John Wertheimer”, e-mail message, August 19, 2008. A copy of this note is in the author's possession and is available upon request.

124. Constitution of the State of South Carolina, 1895, Sec. 33, art. III.

125. In 1918, Herbert Kirby registered for military service at the age of eighteen. His draft card lists him as a white man. His brother Eugene also joined the army. The 1920 census records that he was stationed at an army camp in Brownsville, Texas. The census lists him as white; 1920 Census, Cameron County, Texas, Roll 1784: 178. The draft registration card of older brother Edward Kirby, who was not part of the Tucker case, also lists him as white. See Sharfstein, 655.