ARTICLES OFF-WHITE IN AN AGE OF WHITE SUPREMACY: MEXICAN ELITES AND THE RIGHTS OF INDIANS AND BLACKS IN NINETEENTH-CENTURY NEW MEXICOt LAURA E. GOMEZ, PH.D.* I. INTRODUCTION In their studies of mid-twentieth-century civil rights litiga- tion involving Chicanos, several scholars have reached the con- clusion that, in this era, Mexican Americans occupied an ambivalent racial niche, being neither Black nor white.1 The Su- preme Court case Hernandez v. Texas,2 decided in 1954 during t This article is dedicated to the current editors of the Chicano-LatinoLaw Review. Founded in 1972 in the midst of the Chicano Movement, the Chicano- Latino Law Review persists today during a period of retrenchment, with shrinking numbers of Latino students attending the only public law school in Southern California. That the journal thrives is a testament to the dedication and hard work of its editors. * Professor of Law & Sociology, UCLA. Ph.D. Stanford (1994), J.D. Stanford (1992), M.A. Stanford (1988), A.B. Harvard (1986). Weatherhead Resident Scholar, School of American Research (2004-2005). The author thanks the following individ- uals for their input: Rick Abel, Kip Bobroff, Tobias Duran, Lawrence Friedman, Carole Goldberg, Gillian Lester, Joel Handler, Ian Haney L6pez, Antonio G6mez, Michael Olivas, Est6van Rael-Gilvez, Leti Volpp, as well as audiences at the School of American Research and the "Hernandez at 50" Conference at the University of Houston Law Center. I am also indebted to the extraordinary library staffs at the UCLA School of Law, the UNM School of Law, and the School of American Research. 1. See Ian Haney L6pez, Retaining Race: LatCrit Theory and Mexican Ameri- can Identity in Hernandez v. Texas, 1 HARV. LATINO L. REV. 297 (1997); George Martfnez, Legal Indeterminacy, Judicial Discretion and the Mexican-American Liti- gation Experience: 1930-1980, 27 U.C. DAvIs L. REV. 555 (1994); George Martinez, The Legal Construction of Race: Mexican-Americans and Whiteness, 2 HARV. LA- TINO L. REV. 321, 326-29 (1997); Clare Sheridan, "Another White Race:" Mexican Americans and the Paradox of Whiteness in Jury Selection, 21 LAW & HIST. REV. 109 (2003); Steven H. Wilson, Brown Over "Other White": Mexican Americans' Legal Arguments and Litigation Strategy in School Desegregation, 21 LAW & HiST. REV. 145 (2003); see also Ariela Gross, Texas Mexicans and the Politics of Whiteness, 21 LAW & HIST. REV. 195 (2003). 2. Hernandez v. Texas, 347 U.S. 475, 482 (1954). CHICANO-LATINO LAW REVIEW [Vol. 25:9 the same term as Brown v. Board of Education,3 is cited as evi- dence for that proposition because it reveals tensions among members of the bench and bar involved with the case regarding claims to whiteness, claims to protected status under the Consti- tution, and the social reality of 1950s Texas for Chicanos, espe- cially working class Chicanos such as Mr. Hermindez. Hernindez was a twenty-four-year-old cotton picker who was convicted by an all white jury of murdering forty-year-old Joe Espinosa, a ten- ant farmer, outside a bar one Saturday afternoon. Hernindez's lawyers, who would come to include the first Mexican American appointed to the federal bench in Texas and the first Mexican American law professor in the nation, appealed Herndndez's conviction and sentence of life imprisonment. 4 They argued that their client's constitutional right to equal protection under the law had been violated because, despite being sixteen percent of the Jackson County population, no Mexican American had ever been summoned for service as jury commissioner, grand juror or petit juror in the county in twenty-five years. One of the deep ironies in the case was the reasoning used by the Texas ap- pellate court in 1952 to conclude that Mr. Hernindez's rights had not been violated: "Mexicans are white people .... The grand jury that indicted appellant, and the petit jury that tried him be- ing composed of members of his race, it cannot be said, in the absence of proof of actual discrimination, that appellant has been discriminated against .. .-5The Supreme Court overturned the Texas appellate court, concluding that Mr. Hermindez's constitu- tional rights had been violated and, for the first time, broadening the equal protection clause to cover Mexican Americans. I share the view of scholars who have identified the mid- twentieth-century as a formative period in the formation of Chicanos' racial identity and position in the U.S. racial order as an "in-between" racial group that was neither Black nor fully white. At the same time, I join other scholars in arguing that this racial ambivalence had its origins a century earlier, by virtue of the American occupation of Mexico's northern territories. 6 In 3. Brown v. Bd. of Educ., 347 U.S. 483, 496 (1954). 4. The four lawyers who worked on the Hernandez appeal were Gus Garcfa, John J. Herrera, Carlos C. Cadena (the first Mexican American law professor, who taught at St. Mary's Law School), and James DeAnda (the first Mexican American appointed to the federal bench in Texas). 5. Hernandez v. State, 251 S.W.2d 531, 536 (Tex. Crim. App. 1952), rev'd sub nom. Hernandez v. Texas, 347 U.S. 475 (1954). 6. See, e.g., DAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS, 1836-1986 (1987); NEIL FOLEY, THE WHITE SCOURGE: MEXICANS, BLACKS AND POOR WHITES IN TEXAS COTTON CULTURE (1997); JOHN M. NIETO-PHILLIPS, THE LANGUAGE OF BLOOD: THE MAKING OF SPANISH AMERICAN IDENTITY IN NEW MEXICO, 1880S-1930S (2004); CHARLES H. MONTGOMERY, THE SPANISH REDEMP- TION: HERITAGE, POWER, AND LOSS ON NEW MEXICO'S UPPER RIO GRANDE 2005] OFF-WHITE IN AN AGE OF WHITE SUPREMACY 11 part due to unique demographics, the 60,000 Mexicans then liv- ing in New Mexico,7 existed both as a racially subordinate group in the U.S. racial hierarchy and as a group that at times success- fully claimed white status (and, thereby, a dominant position rel- ative to other racial minority groups). 8 Armed with this nineteenth-century historical reality, mid-twentieth-century civil rights litigation such as Hernandez is easier to comprehend and, in fact, to have predicted. In this article, I use the discussion of Mexicans' "off-white" racial status in nineteenth-century New Mexico as a point of de- parture for exploring four themes. The first concerns the extent to which we can and should understand the transition from Span- ish-Mexican to Anglo-American control of the Southwest as a key period that shaped American race relations both in the Southwest and nationally. Mexicans' status as an off-white or wedge racial group is crucial for understanding that period as (2002). An increasing subset of studies explores how groups change status from "white" to "non-white" or from "non-white" to "white." See THEODORE W. ALLEN, INVENTION OF THE WHITE RACE (1994); DAVID R. ROEDIGER, WAGES OF WHITE- NESS: RACE AND THE MAKING OF THE AMERICAN WORKING CLASS (1999); MAT- THEw F. JACOBSON, WHITENESS OF A DIFFERENT COLOR: EUROPEAN IMMIGRANTS AND THE ALCHEMY OF RACE (1999); KAREN BRODKIN SACKS, How JEWS BECAME WHITE FOLKS AND WHAT THAT SAYS ABOUT RACE IN AMERICA (1998); RUTH FRANKENBERG, WHITE WOMEN, RACE MATTERS: THE SOCIAL CONSTRUCTION OF WHITENESS (1993); NOEL IGNATIEV, How THE IRISH BECAME WHITE (1995); MICHELLE FINE, ET AL., OFF WHITE: READINGS ON POWER, PRIVILEGE AND SOCI- ETY (2004). 7. As the northern Mexican region, New Mexico was an expansive geographic area that included all of present-day New Mexico, present-day Arizona, as well as parts of present-day Colorado, Nevada, Utah and Wyoming. In all, with the end of the war with the United States, Mexico ceded around one million square miles, or half its territory if you include Texas (which Mexico continued to claim during the war). GENE M. BRACK, MEXICO VIEWS MANIFEST DESTINY, 1821-1846: AN ESSAY ON THE ORIGINS OF THE MEXICAN WAR 2, 54, 135 (1975). 8. In this paper, I use the term "Mexican" as an ethno-racial category distinct from Euro-American whites, Blacks, Pueblo Indians and other Indians. I include in that category Mexicans regardless of their status as Mexican nationals or United States citizens (this is especially important given that in the first twenty years of the American occupation it was not always clear whether Mexicans had elected to main- tain their Mexican citizenship or become United States citizens). In the contempo- rary literature of the period (whether newspapers, court records, government documents, or private papers), "Mexican" (or "Mexicano" in Spanish) was used al- most exclusively to refer to former Mexican citizens of the region whose ancestry was mestizo (Spanish and Indian). Variants of "Spanish," "Hispano" and the like did not become widespread in the region until the late nineteenth and early twentieth centuries - partly as a result of some of the racial formation processes I describe in this study. For analyses that consider that latter process, see NIETO-PHILLIPS, supra note 6; MONTGOMERY, supra note 6; PHILLIP B. GONZALES, FORCED SACRIFICE AS ETHNIC PROTEST: THE HISPANO CAUSE IN NEW MEXICO AND THE RACIAL Al-TI- TUDE CONFRONTATION OF 1933 (2001); A. GABRIEL MELENDEZ, So ALL IS NOT LOST: THE POETICS OF PRINT IN NUEVOMEXICANO COMMUNITIES, 1834-1958 (1997); DORIS MEYER, SPEAKING FOR THEMSELVES: NEOMEXICANO CULTURAL IDENTITY AND THE SPANISH-LANGUAGE PRESS, 1880-1920 (1996). CHICANO-LATINO LAW REVIEW [Vol. 25:9 well as for understanding the twentieth and, I argue, twenty-first- century trajectories of Latinos in the United States. A second theme is how the study of Mexican American po- litical agency in New Mexico opens up a range of nationally im- portant nineteenth-century debates.