In 1667, the Virginia General Assembly declared “enslavement of Indians for life to be legal.” This act was repealed, then revived in 1691, but regardless, it was ignored. In 1705 Indian slavery in Virginia became illegal but it was not until 1777 that it was decided by the legislature that no Indian brought into Virginia since the Act of 1705, nor their descendants, could continue to be held as slaves. Of course, slave owners did not rush right home and free their slaves that they had inherited or purchased. The descendants of the slaves had to find a way to file a lawsuit, and a surprising number did.
South Carolina also declared Indian slavery to be illegal, but North Carolina did not, prompting some planters to move to North Carolina from Virginia.
In 1777 in Virginia when it was determined that it had been illegal to enslave Indians taken up during the Indian Wars, it opened the doors of possibility, at least a crack. Legally, it did not matter how much Indian or African ancestry one had, only whether the person descended from an Indian woman, since the legal status or condition of the child was determined by the “condition of the mother.” This new law encouraged lawsuits from descendants of female Indian slaves, and many sued for their freedom. Many won. The lawsuits often included many depositions that spanned nearly 100 years of history, describing where the slave was captured, how old they were when they were brought to Virginia and the history of their enslavement and subsequent sales. Of course, the families had to be reconstructed as well, and depositions were necessary for that too. These suits are gold mines for both genealogists and historians.
Some masters, unwilling to depart with their slaves, moved to other counties or states where lawsuits would have to be refiled. The original Indian captive slaves were dead and it was their grandchildren who most often sued for relief. However, the depositions taken tell us a great deal not just about Indian slavery, but the culture of slavery itself. It details how often slaves were sold, how many living children they had, how often they moved, and how the families were dispersed. We discover that many descendants knew where their family members were, even though they surely didn’t get to see them very often, if at all.
Things were different in Maryland. However, there was apparently some doubt, based on this Anne Arundel County, Maryland record from the Court Proceedings, 11 January 1708/9 – p.552:
Capt. William Harbert presents an Indian youth the Son of an Indian Captive Woman taken at the Susquehannock Fort and Desires to have the Courts Opinion whether he be a servant During live as his Mother was or not. It is the opinion of ye Court that he is a slave During life.
These kinds of court decisions set precedents that would require more than another 150 years to overturn. By the time that slavery ended during the Civil War, not only were the Indians originally enslaved long dead, their 7th generation descendants were being born, allowing 25 years per generation. Some of the original Indian captive’s great-great-grandchildren may have been alive, as elderly people, to witness the emancipation of their great-grandchildren – if – they had been one of the lucky people, able to keep track of their family.