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Chapter 5 Vocabulary
the use of programs and policies designed to assist groups that have historically been subject to discrimination
American Indian Movement (AIM)
the civil rights group responsible for the activist occupation of Wounded Knee, South Dakota, in 1973
laws passed immediately after the Civil War that discriminated against freed slaves and other black people and deprived them of their rights
Brown v. Board of Education
the landmark 1954 Supreme Court ruling that struck down Plessy v. Ferguson and declared segregation and “separate but equal” to be unconstitutional in public education
a term adopted by some Mexican American civil rights activists to describe themselves and those like them
an action taken in violation of the law to demonstrate that the law is unjust
a doctrine calling for the same pay for workers whose jobs require the same level of education, responsibility, training, or working conditions
a legal status of married women in which their separate legal identities were erased
de facto segregation
segregation that results from the private choices of individuals
de jure segregation
segregation that results from government discrimination
civil rights campaigns that directly confronted segregationist practices through public demonstrations
the revocation of someone’s right to vote
equal protection clause
a provision of the Fourteenth Amendment that requires the states to treat all residents equally under the law
Equal Rights Amendment (ERA)
the proposed amendment to the Constitution that would have prohibited all discrimination based on sex
an invisible barrier allegedly caused by discrimination that prevents workers from rising to the highest levels of an organization—including corporations, governments, academic institutions, and religious organizations
the provision in some southern states that allowed illiterate White people to vote because their ancestors had been able to vote before the Fifteenth Amendment was ratified
harassment, bullying, or other criminal acts directed against someone because of bias against that person’s sex, gender, sexual orientation, religion, race, ethnicity, or disability – controversial in some circles due to equal protection concerns
the standard used by the courts to decide cases where the burden of proof is on the government to demonstrate an important governmental interest is at stake in treating men differently from women
Jim Crow laws
state and local laws that promoted racial segregation and undermined Black voting rights in the south after Reconstruction
tests that required the prospective voter to be able to read a passage of text and answer questions about it; often used as a way to disenfranchise racial or ethnic minorities
Plessy v. Ferguson
the landmark 1896 Supreme Court ruling that allowed “separate but equal” racial segregation under the equal protection clause of the Fourteenth Amendment
annual tax imposed by some states before a person was allowed to vote
rational basis test
the standard used by the courts to decide most forms of discrimination; the burden of proof is on those challenging the law or action to demonstrate there is no good reason for treating them differently from other citizens
the period from 1865 to 1877 during which the governments of Confederate states were reorganized prior to being readmitted to the Union
the standard used by the courts to decide cases of discrimination based on race, ethnicity, national origin, or religion; burden of proof is on the government to demonstrate a compelling governmental interest is at stake and no alternative means are available to accomplish its goals
the section of the U.S. Education Amendments of 1972 that prohibits discrimination in education on the basis of sex
Trail of Tears
the name given to the forced migration of the Cherokees from Georgia to Oklahoma in 1838–1839
tests requiring prospective voters in some states to be able to explain the meaning of a passage of text or to answer questions related to citizenship
The United States’ founding principles are liberty, equality, and justice. However, not all American citizens have always fully enjoyed equal opportunities, the same treatment under the law, or all the liberties extended to others. Well into the twentieth century, many were routinely discriminated against because of sex, race, ethnicity or country of origin, religion, or physical or mental abilities.
While changes or improvements can still be made, the past one hundred years, have brought significant gains for people long discriminated against. Yet, as the protest over the building of an Islamic community center in Lower Manhattan demonstrates (in the photo above), people still encounter prejudice, injustice, and negative stereotypes that can lead to discrimination, marginalization, and even exclusion from civic life.
What is the difference between civil liberties and civil rights? How did the Black American struggle for civil rights evolve? What challenges did women overcome in securing the right to vote, and what obstacles do they and other U.S. groups still face? This chapter addresses these and other questions in exploring the essential concepts of civil rights.
5.1 What Are Civil Rights and How Do We Identify Them?
By the end of this section, you will be able to:
- Define the concept of civil rights
- Describe the standards that courts use when deciding whether a discriminatory law or regulation is unconstitutional
- Identify three core questions for recognizing a civil rights problem
The belief that people should be treated equally under the law is one of the cornerstones of political thought in the United States. Yet not all citizens have been treated equally throughout the nation’s history. For example, until 1920, nearly all women in the United States lacked the right to vote. Black men received the right to vote in 1870, but as late as 1940 only 3 percent of Black American adults living in the South were registered to vote, largely due to laws designed to keep them from the polls. Some types of unequal treatment are considered acceptable, while others are not. No one would consider it acceptable to allow a ten-year-old to vote, because a child lacks the ability to understand important political issues, but most reasonable people would agree that it is wrong to mandate racial segregation or to deny someone the right to vote on the basis of race. It is important to understand which types of inequality are unacceptable and why.
DEFINING CIVIL RIGHTS
Civil rights are, at the most fundamental level, guarantees by the government that it will treat people equally, particularly people belonging to groups that have historically been denied the same rights and opportunities as others. The proclamation that “all men are created equal” appears in the Declaration of Independence, and the due process clause of the Fifth Amendment to the U.S. Constitution requires that the federal government treat people equally. According to Chief Justice Earl Warren in the Supreme Court case of Bolling v. Sharpe (1954), “discrimination may be so unjustifiable as to be violative of due process.”
Additional guarantees of equality are provided by the equal protection clause of the Fourteenth Amendment, ratified in 1868, which states in part that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Thus, between the Fifth and Fourteenth Amendments, neither state governments nor the federal government may treat people unequally unless unequal treatment is necessary to maintain important governmental interests, like public safety.
We can contrast civil rights with civil liberties, which are limitations on government power designed to protect our fundamental freedoms. For example, the Eighth Amendment prohibits the application of “cruel and unusual punishments” to those convicted of crimes, a limitation on government power. As another example, the guarantee of equal protection means the laws and the Constitution must be applied on an equal basis, limiting the government’s ability to discriminate or treat some people differently, unless the unequal treatment is based on a valid reason, such as age. A law that imprisons Asian Americans twice as long as Latinos for the same offense, or a law that says people with disabilities don’t have the right to contact members of Congress while other people do, would treat some people differently from others for no valid reason and is unconstitutional. According to the Supreme Court’s interpretation of the Equal Protection Clause, “all persons similarly circumstanced shall be treated alike.” If people are not similarly circumstanced, however, they may be treated differently. Asian Americans and Latinos who have broken the same law are similarly circumstanced; however, a blind driver or a ten-year-old driver is differently circumstanced than a sighted, adult driver.
Laws that treat one group of people differently from others are not always unconstitutional. In fact, the government engages in legal discrimination quite often. In most states, you must be eighteen years old to smoke cigarettes and twenty-one to drink alcohol; these laws discriminate against the young. To get a driver’s license so you can legally drive a car on public roads, you have to be a minimum age and pass tests showing your knowledge, practical skills, and vision. Perhaps you are attending a public college or university run by the government; the school you attend has an open admission policy, which means the school admits all who apply. Not all public colleges and universities have an open admissions policy, however. These schools may require that students have a high school diploma or a particular score on the SAT or ACT or a GPA above a certain number. In a sense, this is discrimination, because these requirements treat people unequally; people who do not have a high school diploma or a high enough GPA or SAT score are not admitted. How can the federal, state, and local governments discriminate in all these ways even though the equal protection clause seems to suggest that everyone be treated the same?
The answer to this question lies in the purpose of the discriminatory practice. In most cases when the courts are deciding whether discrimination is unlawful, the government has to demonstrate only that it has a good reason for engaging in it. Unless the person or group challenging the law can prove otherwise, the courts will generally decide the discriminatory practice is allowed. In these cases, the courts are applying the rational basis test.
That is, as long as there’s a reason for treating some people differently that is “rationally related to a legitimate government interest,” the discriminatory act or law or policy is acceptable. For example, since letting blind people operate cars would be dangerous to others on the road, the law forbidding them to drive is reasonably justified on the grounds of safety; thus, it is allowed even though it discriminates against the blind. Similarly, when universities and colleges refuse to admit students who fail to meet a certain test score or GPA, they can discriminate against students with weaker grades and test scores because these students most likely do not possess the knowledge or skills needed to do well in their classes and graduate from the institution. The universities and colleges have a legitimate reason for denying these students entrance.
The courts, however, are much more skeptical when it comes to certain other forms of discrimination. Because of the United States’ history of discrimination against people of non-White ancestry, women, and members of ethnic and religious minorities, the courts apply more stringent rules to policies, laws, and actions that discriminate on the basis of race, ethnicity, gender, religion, or national origin.
Discrimination based on gender or sex is generally examined with intermediate scrutiny. The standard of intermediate scrutiny was first applied by the Supreme Court in Craig v. Boren (1976) and again in Clark v. Jeter (1988).
It requires the government to demonstrate that treating men and women differently is “substantially related to an important governmental objective.” This puts the burden of proof on the government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina’s military college The Citadel, shown in the photo below, must admit both male and female students. Women in the military are now also allowed to serve in all combat roles. However, the courts have thus-far continued to allow the Selective Service System to register only men and not women for a potential military draft, thus making it so that only men can be called into service against their will to possibly be killed in military action.
SIDEBAR: With the extinguishing of most forms on institutionalized governmental discrimination in the last century or so, it is strange at best that the Selective Service is still allowed to register only men for the draft. Though there has been no actual calling-up of soldiers from the civilian population against their will since the Vietnam War the United States still maintains the ability to conscript men and men alone into service.
In fact, NOT registering for the draft with Selective Service comes with significant penalties. If you are required to register and you do not, you will not be eligible for state-based student aid in many states, federal job training, or a federal job. You may even be prosecuted and face a fine of up to $250,000 and jail time of up to five years. If you’re an immigrant to the U.S., you will not be eligible for citizenship.
Discussion questions: Do you believe that the Selective Service System is wrongly discriminating against men over women – and should the Selective Service be forced to register women for the draft? Why or why not? If you are a male, will you be registering for the draft?
Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the strict scrutiny standard in these cases.
Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be “narrowly tailored” to achieve the goal in question, and that it is the “least restrictive means” available to achieve that goal. In other words, if there is a non-discriminatory way to accomplish the goal in question, discrimination should not take place. In the modern era, laws and actions that are challenged under strict scrutiny have rarely been upheld. Strict scrutiny, however, was the legal basis for the Supreme Court’s 1944 upholding of the legality of the internment of Japanese Americans during World War II, discussed later in this chapter. Finally, affirmative action consists of government programs and policies designed to benefit members of groups historically subject to discrimination.
Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases. There is also the deeper question of whether government can hope to right the wrongs of two centuries ago by giving special advantages to members of ethnic groups previously discriminated against but whose descendants were born in recent times – while at the same time depriving those whose great-great-grandparents were members of a particular race, sex, or color who would not be able to obtain these special advantages.
The word affirmative comes from the Latin ad, meaning to, and firmare, meaning strengthen, make firm.
PUTTING CIVIL RIGHTS IN THE CONSTITUTION
At the time of the nation’s founding, of course, the treatment of many groups was woefully unequal: hundreds of thousands of people of African descent were not free, the rights of women were decidedly fewer than those of men, and the indigenous peoples in American States and territories were generally not considered U.S. citizens at all. Despite the fact that the early United States was a more inclusive society than most of the world was at that time, equal treatment of all was at best still a radical idea not only in the United States but worldwide. Freedom and equal rights, it can be argued, is a fairly modern adaptation that was pushed forward rapidly by the United States Constitution, parts of which have been emulated in many countries of the world.
The aftermath of the Civil War marked a particularly wide turning point for civil rights. The Republican majority in Congress was enraged by the actions of the reconstituted governments of the southern states after the war. In these states, many former Confederate politicians and their sympathizers returned to power and attempted to circumvent the Thirteenth Amendment’s freeing of slaves by passing laws known as the Black codes.
These laws were designed to reduce former slaves to the status of serfs or indentured servants; Black people were not just denied the right to vote, own firearms, buying alcohol, engaging in trades other than farming. Blacks could also be arrested and jailed for vagrancy or idleness if they lacked jobs. Black people were excluded from public schools and state colleges and were sometimes subjected to violence.
To override the southern states’ actions, lawmakers in Congress proposed two amendments to the Constitution designed to give political equality and power to formerly enslaved people; once passed by Congress and ratified by the necessary number of states, these became the Fourteenth and Fifteenth Amendments. The Fourteenth Amendment, in addition to including the equal protection clause as noted above, also was designed to ensure that the states would respect the civil liberties of freed slaves. The Fifteenth Amendment was proposed to ensure the right to vote for Black men, which will be discussed in more detail later in this chapter.
IDENTIFYING CIVIL RIGHTS ISSUES
When we look back at the past, it’s relatively easy to identify civil rights issues that arose. But looking into the future is much more difficult. For example, in past decades the rights of those with disabilities, particularly mental disabilities, were often ignored by the public at large. Many people with disabilities were institutionalized and given little further thought, and in the past century, it was common for those with mental disabilities to be subject to forced sterilization. Today, this is not accepted.
Clearly, then, new civil rights issues can emerge over time. How can we, as citizens, identify them as they emerge and distinguish genuine claims of discrimination from claims by those who have merely been unable to convince a majority to agree with their viewpoints? For example, how do we decide if twelve-year-olds are discriminated against because they are not allowed to vote? We can identify true discrimination by applying the following analytical process:
- Which groups? First, identify the group of people who are facing discrimination.
- Which right(s) are threatened? Second, what right or rights are being denied to members of this group?
- What do we do? Third, what can the government do to bring about a fair situation for the affected group? Is proposing and enacting such a remedy realistic?
5.2 Black Americans Struggle for Equality
By the end of this section, you will be able to:
- Identify key events in the history of Black American civil rights
- Explain how the courts, Congress, and the executive branch supported the civil rights movement
- Describe the role of grassroots efforts in the civil rights movement
Many groups in U.S. history have sought recognition as equal citizens. Although each group’s efforts have been notable and important, arguably the greatest, longest, and most violent struggle was that of Black Americans, whose once-inferior legal status was even written into the text of the Constitution. Their fight for freedom and equality provided the legal and moral foundation for others who sought recognition of their equality later on.
SLAVERY AND THE CIVIL WAR
In the Declaration of Independence, the United States of America made the radical statement that “all men are created equal” and “are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” Yet, the initiating author of the Declaration, Thomas Jefferson like other wealthy landowners of his time, owned dozens of other human beings as his personal property. He recognized this contradiction and personally considered the institution of slavery to be a “hideous blot” on the nation. However, in order to forge a political union that would stand the test of time, he and the other founders—and later the framers of the Constitution— were forced by practical political realities of the time not to address the issue in any definitive way at that point in time. To do otherwise would have assured that the United States would never have existed. Political support for abolition was very much a minority stance at the time, although after the Revolution many of the northern states did abolish slavery for a variety of reasons. In short, at the time of the founding, it was “a bridge too far”. As noted above, this was not just a situation endemic to the United States, in fact the idea of equal rights for almost anyone was considered a laughable idea nearly worldwide.
As the new United States expanded westward, however, the issue of slavery became harder to ignore and ignited intense controversy. Many opponents of slavery were willing to accept the institution if it remained largely confined to the South but did not want it to spread westward. They feared the expansion of slavery would lead to the political dominance of the South over the North and would deprive small farmers in the newly acquired western territories who could not afford slaves. Abolitionists, primarily in the North, also argued that slavery was both immoral and opposed to basic U.S. values; they demanded an end to it.
The spread of slavery into the West seemed inevitable, however, following the Supreme Court’s ruling in the case Dred Scott v. Sandford, decided in 1857. Scott, who had been born into slavery but had spent time in free states and territories, argued that his temporary residence in a territory where slavery had been banned by the federal government had made him a free man. The Supreme Court rejected his argument. In fact, the Court’s majority stated that Scott had no legal right to sue for his freedom at all because Black people (whether free or enslaved) were not and could not become U.S. citizens. Thus, Scott lacked the standing to even appear before the court. The Court also held that Congress lacked the power to decide whether slavery would be permitted in a territory that had been acquired after the Constitution was ratified, in effect prohibiting the federal government from passing any laws that would limit the expansion of slavery into any part of the West.
The infamous Dred Scott decision was absolutely destroyed by the passage of the 14th amendment to the U.S. Constitution which, in section one reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.“
The the Civil War (1861–1865), was of course the most tangible turning point of slavery in America. The southern states unsuccessfully seceded from the union in an attempt to defend each states’ rights to determine their own destinies without interference by the federal government including the slavery question. Though there were many differences at issue, foremost among the rights claimed by the southern states was the right to decide whether their residents would be allowed to own slaves.
Although at the beginning of the war President Abraham Lincoln had been willing to allow slavery to continue in the South to preserve the Union, he changed his policies regarding abolition over the course of the war. The first step was Lincoln’s issuance of the Emancipation Proclamation on January 1, 1863. Although it stated “all persons held as slaves . . . henceforward shall be free,” the proclamation was limited in effect only to the states that had rebelled. Slaves in states that had remained within the Union, such as Maryland and Delaware, and in parts of the Confederacy that were already occupied by the Union army, were not set free. Although slaves in states in rebellion were technically freed, because Union troops controlled relatively small portions of these states at the time, it was impossible to ensure that enslaved people were freed in reality and not simply on paper.
SIDEBAR: Ultimately, of course, the issue of the abolition of slavery in the United States was authoritatively and finally decided neither by Lincoln, nor by the war, but rather by the passage of the 13th, 14th, and 15th amendments to the all-powerful United States Constitution. Without these amendments to America’s most powerful document of law slavery could have continued despite the Emancipation Proclamation and the US Civil War. As the supreme law of the land, The United States Constitution again proved to be the indispensable sole protection of individual liberties and freedoms.
At the end of the Civil War, the South entered a period called Reconstruction (1865–1877) during which state governments were reorganized before the rebellious states were allowed to be readmitted to the Union. As part of this process, the Republican Party pushed for a permanent end to slavery. A constitutional amendment to this effect was passed by the House of Representatives in January 1865, after having already been approved by the Senate in April 1864, and it was ratified in December 1865 as the Thirteenth Amendment. The amendment’s first section states, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” In effect, this amendment outlawed slavery in the United States.
The changes wrought by the Fourteenth Amendment to the Constitution were even more extensive. In addition to introducing the equal protection clause to the Constitution, this amendment also extended the due process clause of the Fifth Amendment to the states, required the states to respect the privileges or immunities of all citizens, and, for the first time, defined U.S. citizenship at the national and state levels. People could no longer be excluded from citizenship based solely on their race. The provisions of the Constitution’s fourteenth amendment were pivotal in the expansion of civil rights.
The Fifteenth Amendment stated that people could not be denied the right to vote based on “race, color, or previous condition of servitude.” This construction allowed states to continue to decide the qualifications of voters as long as those qualifications were ostensibly race-neutral. Thus, while states could not deny Black American men the right to vote on the basis of race, they could deny it to women on the basis of sex or to people who could not prove they were literate.
The immediate effect of these provisions was quite profound. The Reconstruction Era ended with the end of military rule in the South and the withdrawal of the Union army in 1877. Following the Union army’s removal however, political control of the South became more lenient, and intimidation and violence were often used to discourage Black people from exercising the rights they had been granted. The revocation of voting rights, or disenfranchisement, took a number of forms; not every southern state used the same methods, and some states used more than one, but they all disproportionately affected Black voter registration and turnout.
The word disenfranchise comes from the Latin dis, meaning lack of and the Old French word franchise meaning freedom, right, privilege.
Disenfranchise means to deprive a person of a right or privilege – in this context, it’s the right to vote.
Perhaps the most famous of the tools of disenfranchisement were literacy tests and understanding tests. Literacy tests, which had actually first been used in the North since the 1850s to disqualify naturalized European immigrants from voting, called on the prospective voter to demonstrate his (and later her) ability to read a particular passage of text. However, since voter registration officials had discretion to decide what text the voter was to read, they could give easy passages to voters they wanted to register and more difficult passages to those whose registration they wanted to deny. Understanding tests required the prospective voter to explain the meaning of a particular passage of text, often a provision of the U.S. Constitution, or answer a series of questions related to citizenship. Again, since the official examining the prospective voter could decide which passage or questions to choose, the difficulty of the test might vary dramatically between white and black applicants just as they had been to certain European immigrant groups decades before. Even had these tests been administered fairly and equitably, however, most Black people would have been at a huge disadvantage, because few could read. Although schools for Black people had existed in some places, laws in some southern states had made it largely illegal to teach slaves to read and write. At the beginning of the Civil War, only 5 percent of Black people could read and write, and most of them lived in the North. Some were able to take advantage of educational opportunities after they were freed, but many were not able to gain effective literacy.
In some states, poorer, less literate White voters feared being disenfranchised by the literacy and understanding tests. Some states introduced a loophole, known as the grandfather clause, to allow less literate White people to vote. The grandfather clause exempted those who had been allowed to vote in that state prior to the Civil War and their descendants from literacy and understanding tests. Because Black people were not allowed to vote prior to the Civil War, but most White men had been voting at a time when there were no literacy tests, this loophole allowed most illiterate White people to vote while leaving obstacles in place for Black people who wanted to vote as well. Time limits were often placed on these provisions because state legislators realized that they might quickly be declared unconstitutional, but they lasted long enough to allow illiterate White men to register to vote.
Again, the Constitution would come to the rescue via the equal protection clause.
In states where the voting rights of poor White people were less of a concern, another tool for disenfranchisement was the poll tax. This was an annual per-person tax, typically one or two dollars (on the order of $20 to $50 today), that a person had to pay to register to vote. People who didn’t want to vote didn’t have to pay, but in several states the poll tax was cumulative, so if you decided to vote you would have to pay not only the tax due for that year but any poll tax from previous years as well. Because former slaves were usually quite poor, they were less likely than White men to be able to pay poll taxes.
Although these methods were usually sufficient to ensure that Black people were kept away from the polls, some dedicated Black Americans did manage to register to vote despite the obstacles placed in their way. To ensure their vote was largely meaningless, the White elites used their control of the Democratic Party to create the white primary: primary elections in which only White people were allowed to vote. The state party organizations argued that as private groups, rather than part of the state government, they somehow had no obligation to follow the Fifteenth Amendment’s requirement not to deny the right to vote on the basis of race. Furthermore, they contended, voting for nominees to run for office was not the same as electing those who would actually hold office. So they held primary elections to choose the Democratic Party nominee in which only white citizens were allowed to vote. Once the nominee had been chosen, he or she might face token opposition from a Republican Party or minor-party candidate in the general election, but since many voters had agreed beforehand to support whoever won the Democratic Party’s primary, the outcome of the general election was a foregone conclusion.
CIVIL RIGHTS IN THE COURTS
At the turn of the twentieth century, the position of Black Americans was quite bleak. Even outside the South, racial inequality was a fact of everyday life for many. Black American leaders and thinkers themselves disagreed on the right path forward. Some, like Booker T. Washington, argued that acceptance of inequality and segregation over the short term would allow Black Americans to focus their efforts on improving their educational and social status until White people were forced to acknowledge them as equals. W. E. B. Du Bois, however, argued for a more confrontational approach and in 1909 founded the National Association for the Advancement of Colored People (NAACP) as a rallying point for securing equality. White liberals dominated the organization in its early years, but Black Americans assumed control over NAACP operations in the 1920s.
SIDEBAR: Did you know that Booker T. Washington was commemorated on US coinage? The Booker T. Washington half dollar was minted from 1946 through 1951. One million of these coins were minted in 1946 alone. The Booker T Washington half dollar was minted for collectors and many more were put into general circulation alongside of the Franklin Half Dollar. (Benjamin Franklin was not only a founding father, but he was also a very vocal abolitionist who penned anti-slavery petitions to Congress amongst other anti-slavery activities.)
Booker T Washington would also appear on a second commemorative coin alongside of George Washington Carver, a black agricultural scientist from 1951 through 1954.
These real-silver coins are still easy to come by for less than $20.00 each from rare coin dealers and online sales.
The NAACP soon focused on a strategy of overturning Jim Crow laws through the courts. Perhaps its greatest series of legal successes consisted of its efforts to challenge segregation in education. Early cases brought by the NAACP dealt with racial discrimination in higher education. In 1938, the Supreme Court essentially gave states a choice: they could either integrate institutions of higher education, or they could establish an equivalent university or college for Black Americans. Southern states chose to establish colleges for Black people rather than allow them into all-white state institutions. Although this ruling expanded opportunities for professional and graduate education in areas such as law and medicine for Black Americans by requiring states to provide institutions for them to attend, it nevertheless allowed segregated colleges and universities to continue to exist.
The landmark court decision of the judicial phase of the civil rights movement settled the Brown v. Board of Education case in 1954. In this case, the Supreme Court unanimously overturned its decision in Plessy v. Ferguson as it pertained to public education, stating that a separate but equal education was a logical impossibility. Even with the same funding and equivalent facilities, a segregated school could not have the same teachers or environment as the equivalent school for another race. The court also rested its decision in part on social science studies suggesting that racial discrimination led to feelings of inferiority among Black American children. The only way to dispel this sense of inferiority was to end segregation and integrate public schools.
It is safe to say this ruling was controversial. While integration of public schools took place without much incident in some areas of the South, particularly where there were few black students, elsewhere it was often confrontational—or nonexistent. In recognition of the fact that some locations would delay school integration for as long as possible, civil rights activists urged the federal government to enforce the Supreme Court’s decision. Organized by A. Philip Randolph and Bayard Rustin, approximately twenty-five thousand Black Americans gathered in Washington, DC, on May 17, 1957, to participate in a Prayer Pilgrimage for Freedom.
A few months later, in Little Rock, Arkansas, Governor Orval Faubus resisted court-ordered integration and mobilized National Guard troops to keep Black students out of Central High School. President Eisenhower then called up the Arkansas National Guard for federal duty (essentially taking the troops out of Faubus’s hands) and sent soldiers of the 101st Airborne Division to escort students to and from classes. To avoid integration, Faubus closed four high schools in Little Rock the following school year.
SIDEBAR: Some claim that Eisenhower’s action was in violation of the Posse Comitatus Act which severely limits the use of U.S. Troops on U.S. Soil to enforce domestic policy. However, according to the letter of the act, which was originally passed in 1878, Eisenhower’s action was legal for the very strict and narrow purpose of preserving civil rights.
There are a few other notable exceptions to the Posse Comitatus Act but, in general, it is important for U.S. Citizens to know that use of the U.S. military against the general population of the United States would almost always be considered an illegal use of force and could be a warning sign that the government might be heading toward unconstitutional control.
With black people effectively disenfranchised, the restored southern state governments undermined guarantees of equal treatment in the Fourteenth Amendment. They passed laws that excluded Black Americans from juries and allowed the imprisonment and forced labor of “idle” Black citizens. The laws also called for segregation of white and black people in public places under the doctrine known as “separate but equal.” As long as nominally equal facilities were provided for both white and black people, it was legal to require members of each race to use the facilities designated for them. Similarly, state and local governments passed laws limiting what neighborhoods black and white people could live in. Collectively, these discriminatory laws came to be known as Jim Crow laws. The Supreme Court upheld the separate but equal doctrine in 1896 in Plessy v. Ferguson, inconsistent with the Fourteenth Amendment’s equal protection clause, and allowed segregation to continue.
In Virginia, state leaders employed a strategy of “massive resistance” to school integration, which led to the closure of a large number of public schools across the state, some for years. Although de jure segregation, segregation mandated by law, had ended on paper, in practice, few efforts were made to integrate schools in most school districts with substantial black student populations until the late 1960s. Many white southerners who objected to sending their children to school with black students then established private academies that admitted only white students.
Advances were made in the courts in areas other than public education. In many neighborhoods in northern cities, which technically were not segregated, residents were required to sign restrictive real estate covenants promising that if they moved, they would not sell their houses to Black Americans and sometimes not to Jews, Chinese, Japanese, Mexicans, Filipinos, and other ethnic minorities as well. In the case of Shelley v. Kraemer (1948), the Supreme Court held that while such covenants did not violate the Fourteenth Amendment because they consisted of agreements between private citizens, their provisions could not be enforced by courts.
Because state courts are government institutions and the Fourteenth Amendment prohibits the government from denying people equal protection of the law, the courts’ enforcement of such covenants would be a violation of the 14th Amendment to the U.S. Constitution. Thus, if a white family chose to sell its house to a black family and the other homeowners in the neighborhood tried to sue the seller, the court would not hear the case. In 1967, the Supreme Court struck down a Virginia law that prohibited interracial marriage in Loving v. Virginia.
LEGISLATING CIVIL RIGHTS
Advancements continued to be made. In 1962, Congress proposed what later became the Twenty-Fourth Amendment, which banned the poll tax in elections to federal office; the amendment went into effect after being ratified in early 1964.
Several southern states continued to require residents to pay poll taxes in order to vote in state elections until 1966 when, in the case of Harper v. Virginia Board of Elections, the Supreme Court declared that requiring payment of a poll tax in order to vote in an election at any level was unconstitutional. Again, the 14th Amendment was used to incorporate the 24th Amendment to apply to all of the the individual states.
Despite a century of civil rights amendments and favorable court wins, the perceived slow rate of progress led to frustration within the Black American community. Newer, grassroots organizations such as the Southern Christian Leadership Conference (SCLC), Congress of Racial Equality (CORE), and Student Non-Violent Coordinating Committee (SNCC) challenged the NAACP’s position as the leading civil rights organization and questioned its legal-focused strategy. These newer groups tended to prefer more confrontational and sometimes illegal approaches to the redressing of grievances. Some employed the use of direct-action campaigns relying on marches and sometimes violent demonstrations.
The strategies of nonviolent resistance and civil disobedience, or the refusal to obey a law perceived to be unjust, had been effective in the campaign led by Mahatma Gandhi to liberate colonial India from British rule in the 1930s and 1940s. Civil rights pioneers adopted these measures in the 1955–1956 Montgomery bus boycott. After Rosa Parks refused to give up her bus seat to a white person and was arrested, a group of black women carried out a day-long boycott of Montgomery’s public transit system. This boycott was then extended for over a year and was overseen by union organizer E. D. Nixon. The non-violent effort resulted in the desegregation public transportation in that city.
Direct action also took such forms as the sit-in campaigns designed to desegregate lunch counters that began in Greensboro, North Carolina, in 1960, and the 1961 Freedom Rides in which black and white volunteers rode buses and trains through the South to enforce a 1946 Supreme Court decision that desegregated interstate transportation (Morgan v. Virginia).
While such focused campaigns could be effective, they often had little impact in places where they were not replicated. In addition, some of the campaigns led to violence against both the campaigns’ leaders and ordinary people; Rosa Parks, a longtime NAACP member and graduate of the Highlander Folk School for civil rights activists, whose actions had begun the Montgomery boycott, received death threats, E. D. Nixon’s home was bombed, and the Freedom Riders were attacked in Alabama.
As the campaign for civil rights continued and gained momentum, President John F. Kennedy called for Congress to pass new civil rights legislation, which began to work its way through Congress in 1963. The resulting law (pushed heavily and then signed by President Lyndon B. Johnson after Kennedy’s assassination) was the Civil Rights Act of 1964, which had wide-ranging effects on U.S. society. Not only did the act outlaw government discrimination and the unequal application of voting qualifications by race, but it also outlawed segregation and other forms of discrimination by most businesses that were open to the public, including hotels, theaters, and restaurants that were not private clubs. It outlawed discrimination on the basis of race, ethnicity, religion, sex, or national origin by most employers, and it created the Equal Employment Opportunity Commission (EEOC) to monitor employment discrimination claims and help enforce this provision of the law. The provisions that affected private businesses and employers were justified not by the Fourteenth Amendment’s guarantee of equal protection of the laws but instead by relying on Congress’s power to regulate ‘interstate commerce’.
Even though the Civil Rights Act of 1964 had a monumental impact over the long term, it did not end efforts by many southern states to maintain the white-dominated political power structure in the region. Progress in registering black voters remained slow in many states despite increased federal activity supporting it, so civil rights leaders including Martin Luther King, Jr. decided to draw the public eye to the area where the greatest resistance to voter registration drives were taking place. The SCLC and SNCC particularly focused their attention on the city of Selma, Alabama, which had been the site of violent reactions against civil rights activities.
The organizations’ leaders planned a march from Selma to Montgomery in March 1965. Their first attempt to march was broken up by state police and sheriff’s deputies. The second attempt was aborted because King feared it would lead to a brutal confrontation with police and violate a court order from a federal judge who had been sympathetic to the movement in the past. That night, three of the marchers, white ministers from the north, were attacked and beaten with clubs by members of the Ku Klux Klan; one of the victims died from his injuries. Televised images of the brutality against protesters and the death of a minister led to greater public sympathy for the cause. Eventually, a third march was successful in reaching the state capital of Montgomery.
The events at Selma galvanized support in Congress for a follow-up bill solely dealing with the right to vote. The Voting Rights Act of 1965 went beyond previous laws by requiring greater oversight of elections by federal officials. Literacy and understanding tests, and other devices used to discriminate against voters on the basis of race, were banned.
One of the major controversies regarding race in the United States today is related to affirmative action, the practice of ensuring that members of historically disadvantaged or underrepresented groups have equal access to opportunities in education, the workplace, and government contracting. The phrase affirmative action originated in the Civil Rights Act of 1964 and Executive Order 11246, and it has drawn controversy ever since. The Civil Rights Act of 1964 prohibited discrimination in employment, and Executive Order 11246, issued in 1965, forbade employment discrimination not only within the federal government but by federal contractors and contractors and subcontractors who received government funds.
Are people who don’t support Affirmative Action racists? Watch the thought-provoking video to see one black man’s opinion:
Because affirmative action attempts to redress discrimination on the basis of race or ethnicity, it is generally subject to the strict scrutiny standard, which means the burden of proof is on the government to demonstrate the necessity of racial discrimination to achieve a compelling governmental interest. In 1978, in Bakke v. California, the Supreme Court upheld affirmative action and said that colleges and universities could consider race when deciding whom to admit but could not establish racial quotas. In 2003, the Supreme Court reaffirmed the Bakke decision in Grutter v. Bollinger, which said that taking race or ethnicity into account as one of several factors in admitting a student to a college or university was acceptable, but a system setting aside seats for a specific quota of minority students was not.
One of the effects of Affirmative Action is that it intentionally and actively excludes Asian students from admittance into many universities.
– Do you believe that affirmative action amounts to a form of institutionalized racism?
– Do you believe that a government funded school is in violation of the equal protection clause of the 14th Amendment or Title XI Civil Rights Act of 1964 if the school uses affirmative action policies to exclude members of any specific race?
Data from the AAMC (Association of American Medical Colleges) shows the following:
If a student has a GPA (grade point average) of 3.5 and a MCAT (Medical College Admissions Test) score of 30, these are the percentage rates of acceptance if you are a specific race:
If you have 30 minutes available, this is an interesting video to watch. Warning – students “give the finger” to the host while walking by in the beginning of the video.
5.3 The Fight for Women’s Rights
By the end of this section, you will be able to:
- Describe early efforts to achieve rights for women
- Explain why the Equal Rights Amendment failed to be ratified
- Describe the ways in which women acquired greater rights in the twentieth century
Throughout human history, women of all races and ethnicities have been discriminated against and this also includes the early history of the United States.
Similarly timed to the movement to abolish slavery, the women’s rights movement began to gather steam in the 1800s. Indeed, the women’s movement came about largely as a result of the difficulties women encountered while trying to help abolish slavery. The trailblazing Seneca Falls Convention for women’s rights was held in 1848, a few years before the Civil War. But the abolition and black-male-focused civil rights movements largely eclipsed the women’s movement throughout most of the nineteenth century. Women began to campaign actively again in the late nineteenth and early twentieth centuries, and another movement for women’s rights began in the 1960s.
THE EARLY WOMEN’S RIGHTS MOVEMENT AND WOMEN’S SUFFRAGE
At the time of the American Revolution, women had few rights. Although single women were allowed to own property, married women were not. When women married, their separate legal identities were erased under the legal principle of coverture.
The word coverture comes from the Latin cooperire, meaning to cover.
Coverture is the legal status of a married woman under her husband’s protection and authority.
Not only did women adopt their husbands’ names, but all personal property they owned legally became their husbands’ property. Husbands could not sell their wives’ real property—such as land or in some states slaves—without their permission, but they were allowed to manage it and retain the profits. If women worked outside the home, their husbands were entitled to their wages. So long as a man provided food, clothing, and shelter for his wife, she was not legally allowed to leave him. Divorce was difficult and, in some places, impossible to obtain. Higher education for women was not available, and women were barred from professional positions in medicine, law, and ministry.
Following the Revolution, women’s political rights and conditions did not improve very much. Women were not granted the right to vote by any of the states except New Jersey, which at first allowed all taxpaying property owners to vote. However, in 1807, the law changed to limit the vote to men. Changes in New Jersey property laws actually hurt women by making it easier for their husbands to sell their real property without their consent.
Although women had few rights, they nevertheless played an important role in transforming American society. This was especially true in the 1830s and 1840s, a time when numerous social reform movements swept across the United States. In 1832, for example, Black writer and activist Maria W. Stewart became the first American-born woman to give a speech to a mixed audience.
Many women were active in the abolition movement and later the temperance movement. The temperance movement tried to end the consumption of liquor and eventually ended in the failed experiment called Prohibition via the 18th Amendment to the Constitution. (That amendment was repealed over a decade later with the 21st Amendment being ratified.)
Women often found they were hindered in their efforts, however, either by the law or by widely held beliefs that they were weak, silly creatures who should leave important issues to men. One of the leaders of the early women’s movement, Elizabeth Cady Stanton, was shocked and angered when she sought to attend an 1840 antislavery meeting in London England, only to learn that women would not be allowed to participate and had to sit apart from the men. At this convention, she made the acquaintance of another American female abolitionist, Lucretia Mott, who was also appalled by the male reformers’ treatment of women.
SIDEBAR: Similar to the issue of the repudiation of slavery, before the mid to late 1800s, the idea of extending rights to women was also considered completely unacceptable to most of the entire world. Women’s rights, like the acceptance of human servitude was not a problem endemic to the United States alone. In fact, the philosophy of the world was radically shaken by the American Revolution and the principles so boldly stated in the U.S. Constitution. Indeed, it took until 1906 for Finland to become the first country in the entire world to give all women the right to vote – and that was at the beginning of the 20th century. America followed only 14 years later with the passage of the 19th Amendment in 1920.
In 1848, Stanton and Mott called for a women’s rights convention, the first ever held specifically to address the subject, at Seneca Falls, New York. At the Seneca Falls Convention, Stanton wrote the Declaration of Sentiments, which was modeled after the Declaration of Independence and proclaimed women were equal to men and deserved the same rights. Among the rights Stanton wished to see granted to women was suffrage, the right to vote. When called upon to sign the Declaration, many of the delegates feared that if women demanded the right to vote, the movement would be considered too radical, and its members would become a laughingstock. The Declaration passed, but the resolution demanding suffrage was the only one that did not pass unanimously.
Along with other feminists (advocates of women’s equality), such as her friend and colleague Susan B. Anthony, Stanton fought for rights for women besides suffrage, including the right to seek higher education. As a result of their efforts, several states passed laws that allowed married women to retain control of their property and let divorced women keep custody of their children. Amelia Bloomer, another activist, also campaigned for dress reform, believing women could lead better lives and be more useful to society if they were not restricted by voluminous heavy skirts and tight corsets.
The women’s rights movement attracted many women who, like Stanton and Anthony, were active in either the temperance movement, the abolition movement, or both movements. Sarah and Angelina Grimke, the daughters of a wealthy slaveholding family in South Carolina, became first abolitionists and then women’s rights activists. Prominent Black and formerly enslaved women such as Sojourner Truth, Frances Ellen Watkins Harper, and Mary Anne Shadd Cary joined the women’s movement after establishing themselves as key figures in the abolition movement. Many of these women realized that their effectiveness as reformers was limited by laws that prohibited married women from signing contracts and by social proscriptions against women addressing male audiences. Without such rights, women found it difficult to rent halls in which to deliver lectures or to hire printers to produce antislavery literature.
Following the Civil War and the abolition of slavery, the women’s rights movement fragmented. Instead of seeing it as a steppingstone on the path to equality for all, Stanton and Anthony actually denounced the Fifteenth Amendment because it granted voting rights only to Black men and not to women of any race.
The fight for women’s rights did not die, however. In 1869, Stanton and Anthony formed the National Woman Suffrage Association (NWSA), which demanded that the Constitution be amended to grant the right to vote to all women. It also called for more lenient divorce laws and an end to sex discrimination in employment. The less radical Lucy Stone formed the American Woman Suffrage Association (AWSA) in the same year; AWSA hoped to win the suffrage for women by working on a state-by-state basis instead of seeking to amend the Constitution. Four conservative western states—Utah, Colorado, Wyoming, and Idaho—did extend the right to vote to women in the late nineteenth century, but no other states did.
Women were also granted the right to vote on matters involving liquor licenses, in school board elections, and in municipal elections in several states. However, this was often done because of stereotyped beliefs that associated women with moral reform and concern for children, not as a result of a belief in women’s equality. Furthermore, voting in municipal elections was restricted to women who owned property. In 1890, the two suffragist groups united to form the National American Woman Suffrage Association (NAWSA). To call attention to their cause, members circulated petitions, lobbied politicians, and held parades in which hundreds of women and girls marched through the streets.
The more radical National Woman’s Party (NWP), led by Alice Paul, advocated the use of stronger tactics. The NWP held public protests and picketed outside the White House. Demonstrators were often beaten and arrested, and suffragists were subjected to cruel treatment in jail. When some, like Paul, began hunger strikes to call attention to their cause, their jailers force-fed them, an incredibly painful and invasive experience for the women. Finally, in 1920, the triumphant passage of the Nineteenth Amendment granted all women the right to vote.
CIVIL RIGHTS AND THE EQUAL RIGHTS AMENDMENT
Just as the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments did not result in absolute and total equality for Black Americans, the Nineteenth Amendment did not fully end discrimination against women in education, employment, or other areas of life, which continued to be legal. Although women could vote, they very rarely ran for or held public office. Women continued to be underrepresented in the professions, and relatively few sought advanced degrees. Until the mid-twentieth century, the ideal in U.S. society was typically for women to marry, have children, and become housewives. There is absolutely NOTHING wrong with that, but those who sought work for pay outside the home were routinely denied jobs because of their sex and, when they did find employment, were often paid less than men.
A second women’s rights movement emerged in the 1960s. While Title VII of the Civil Rights Act of 1964 prohibited discrimination in employment on the basis of sex as well as race, color, national origin, and religion, nevertheless, many women continued to be denied jobs because of their sex and were often sexually harassed at the workplace. In 1966, feminists who were angered by the lack of progress made by women and by the government’s lackluster enforcement of Title VII organized the National Organization for Women (aka: “NOW”). NOW promoted workplace equality, including equal pay for women, and also called for the greater presence of women in public office, the professions, and graduate and professional degree programs.
NOW also declared its support for the Equal Rights Amendment (ERA), which mandated equal treatment for all regardless of sex. The ERA, written by Alice Paul and Crystal Eastman, was first proposed to Congress, unsuccessfully, in 1923. It was introduced in every Congress thereafter but did not pass both the House and the Senate until 1972. The amendment was then sent to the states for ratification with a deadline of March 22, 1979. Although many states ratified the amendment in 1972 and 1973, the ERA still lacked sufficient support as the deadline drew near. Opponents, including both women and men, argued that passage would subject women to military conscription (the Selective Service draft) and deny them alimony and custody of their children should they divorce. In 1978, Congress voted to extend the deadline for ratification to June 30, 1982. Even with the extension, however, the amendment failed to receive the support of the required thirty-eight states. By the time the deadline arrived, it had been ratified by only thirty-five states. Some of those 35 had later rescinded their ratifications, and no new state had ratified the ERA during the extension period so the Equal Rights Amendment to the US Constitution failed.
Although the ERA failed to be ratified, Title IX of the United States Education Amendments of 1972 passed into law as a federal statute (not as a Constitutional amendment, as the ERA was meant to be). Title IX applies to all educational institutions that receive federal aid and prohibits discrimination on the basis of sex in academic programs, dormitory space, health-care access, and school activities including sports. Thus, if a school receives federal aid, it cannot spend more funds on programs for men than on programs for women.
Not everyone supported the ERA. Some of the reasons given for rejecting the ERA:
- ☛The vague language of the ERA did not allow any distinction to be made between men and women – even when it made sense to do so based on their biological differences.
- ☛ ERA would have impacted the privacy and safety of women and girls by removing gender designations for bathrooms, locker rooms, jails, and hospital rooms.
- ☛ Ends Social Security Benefits for Spouses – According to “Sex Bias in the U.S. Code“, a book written by none other than former U.S. Supreme Court Justice Ruth Bader Ginsburg, the ERA would have changed 800 federal laws including the elimination of social security benefits for wives and widows. (pages 206, 211-212).
- ☛ Exemption of women from the military draft and front-line combat. Currently, women who feel they are physically able can choose to enlist in the military. The ERA, however, would require that all women be subject to the military conscription and placed on front-line combat in equal ratios to men.
- ☛Eliminates Child Support – “ …[I]t could relieve the fathers of the primary responsibility for the support of even infant children, as well as the support of the mothers of such children…” (U.S. House Judiciary Committee Report (No. 92-359, July 14, 1971). “Equality of rights under law shall not be denied…on account of sex.”
- ☛ The ERA would have been used to overturn all restrictions on abortion (including the partial birth abortion ban, the 3rd-trimester abortion ban, and parental notice of minors seeking an abortion).
- ☛ The ERA would have overturned numerous laws and practices that actually benefit women because they would be viewed as showing preferential treatment to women. The laws and practices that would be overturned include:
- • Workplace laws that provide special accommodations for pregnant women
- • State labor laws and guidelines which benefit women who do heavy, manual work
- • Government programs that support women as mothers such as the Women, Infants, and Children nutritional program (WIC)
- ☛ The ERA would have given even more power to Federal Government — Section II of the ERA states that “The Congress shall have the power to enforce by appropriate legislation the provisions of this article.” This would give enormous new powers to the Federal Government that now belong to the states in areas of law which include traditional differences of treatment “on account of sex”: marriage, property laws, divorce and alimony, child custody, adoptions, abortion, sex crimes, private and public schools, prison regulations, and insurance.
Quotes in the above list were taken from: https://illinoisfamily.org/ and https://eagleforum.org/
5.4 Equal Protection for Other Groups
By the end of this section, you will be able to:
- Outline the history of discrimination against American Indians
- Describe the expansion of American Indians civil rights from 1960 to 1990
- Discuss the persistence of problems American Indians face today
American Indians endured the effects of segregation and discrimination imposed by the U.S. government. Ironically, American Indians were not granted the full rights and protections of U.S. citizenship until long after Black Americans and women were, with many having to wait until the Nationality Act of 1940 to become citizens. This was long after the passage of the Fourteenth Amendment in 1868, which granted citizenship to Black Americans but not, the Supreme Court decided in Elk v. Wilkins (1884), to American Indians. White women had been citizens of the United States since its very beginning even though they were not granted the full rights of citizenship. Furthermore, American Indians are the only group of Americans who were forcibly removed en masse from the lands on which they and their ancestors had lived so that others could claim this land and its resources.
AMERICAN INDIANS LOSE THEIR LAND AND THEIR RIGHTS
From the very beginning of European settlement in North America, many American Indians were abused and exploited. Early British settlers attempted to enslave the members of various tribes, especially in the southern colonies and states. Following the American Revolution, the U.S. government assumed responsibility for conducting negotiations with Indian tribes, all of which were designated as sovereign nations, and regulating commerce with them. Because Indians were officially regarded as citizens of other nations, (and they regarded themselves that way as well), they were routinely denied the rights of U.S. citizenship.
As white settlement spread westward over the course of the nineteenth century, Indian tribes were forced to move from their homelands. Although the federal government signed numerous treaties guaranteeing Indians the right to live in the places where they had traditionally farmed, hunted, or fished, land-hungry settlers routinely violated these agreements, and the federal government did little to enforce them.
In 1830, Congress passed the Indian Removal Act, which forced the Indians to move west of the Mississippi River. Not all tribes were willing to leave their land, however. The Cherokee in particular resisted, and in the 1820s, the state of Georgia tried numerous tactics to force them from their territory. Efforts intensified in 1829 after gold was discovered there. Wishing to remain where they were, the tribe sued the state of Georgia. In 1831, the Supreme Court decided in Cherokee Nation v. Georgia that Indian tribes were not sovereign nations, but also that tribes were entitled to their ancestral lands and could not be forced to move from them.
The next year, in Worcester v. Georgia, the Court ruled that non-Indians could not enter tribal lands without the tribe’s permission. White Georgians, however, refused to abide by the Court’s decision, and President Andrew Jackson, a former Indian fighter, refused to enforce it. Between 1831 and 1838, members of several southern tribes, including the Cherokees, were forced by the U.S. Army to move west along routes shown in the map below. The forced removal of the Cherokees to Oklahoma Territory, which had been set aside for settlement by displaced tribes and designated Indian Territory, resulted in the death of one-quarter of the tribe’s population. The Cherokees remember this journey as the Trail of Tears.
By the time of the Civil War, most Indian tribes had been relocated west of the Mississippi. However, once large numbers of Americans and European immigrants had also moved west after the Civil War, American Indians once again found themselves displaced. They were confined to reservations, which are federal lands set aside for their use where non-Indians could not settle. Reservation land was usually poor, however, and attempts to farm or raise livestock, not traditional occupations for most western tribes anyway, often ended in failure. Unable to feed themselves, the tribes became dependent on the Bureau of Indian Affairs (BIA) in Washington, DC, for support. Protestant missionaries were allowed to “adopt” various tribes, to convert them to Christianity and thus speed their assimilation. In an effort to hasten this process, Indian children were taken from their parents and sent to boarding schools, many of them run by churches, where they were forced to speak English and abandon their traditional cultures.
In 1887, the Dawes Severalty Act, another effort to assimilate Indians to white society, divided reservation lands into individual allotments. American Indians who accepted these allotments and agreed to sever tribal ties were also given U.S. citizenship. All lands remaining after the division of reservations into allotments were offered for sale by the federal government to white farmers and ranchers. As a result, Indians swiftly lost control of reservation land. In 1898, the Curtis Act dealt the final blow to Indian sovereignty by abolishing all tribal governments.
THE FIGHT FOR AMERICAN INDIAN RIGHTS
As Indians were removed from their tribal lands and increasingly saw their traditional cultures being destroyed over the course of the nineteenth century, a movement to protect their rights began to grow. Sarah Winnemucca, member of the Paiute tribe, lectured throughout the east in the 1880s in order to acquaint white audiences with the injustices suffered by the western tribes. Lakota physician Charles Eastman also worked for American Indian rights. In 1924, the Indian Citizenship Act granted citizenship to all American Indian born after its passage. Indians born before the act took effect, who had not already become citizens as a result of the Dawes Severalty Act or service in the army in World War I, had to wait until the Nationality Act of 1940 to become citizens. In 1934, Congress passed the Indian Reorganization Act, which ended the division of reservation land into allotments. It returned to American Indian tribes the right to institute self-government on their reservations, write constitutions, and manage their remaining lands and resources. It also provided funds for American Indian to start their own businesses and attain a college education.
Despite the Indian Reorganization Act, conditions on the reservations did not improve dramatically. Most tribes remained impoverished, and many American Indians, despite the fact that they were now also U.S. citizens, were denied the right to vote by the states in which they lived. States justified this violation of the Fifteenth Amendment by claiming that American Indians might be U.S. citizens but were not state residents because they lived on reservations. Other states denied American Indians voting rights if they did not pay taxes. Despite states’ actions, the federal government continued to uphold the rights of tribes to govern themselves. Federal concern for tribal sovereignty was part of an effort on the government’s part to end its control of, and obligations to, Indian tribes.
In the 1960s, a modern American Indian civil rights movement, inspired by the Black civil rights movement, began to grow. In 1969, a group of Indian activists from various tribes, part of a new Pan-Indian movement, took control of Alcatraz Island in San Francisco Bay, which had once been the site of a federal prison. The Indians maintained control of the island for more than a year and a half. They claimed the land as compensation for the federal government’s violation of numerous treaties and offered to pay for it with beads and trinkets. In January 1970, some of the occupiers began to leave the island. Some may have been disheartened by the accidental death of the daughter of one of the activists. In May 1970, all electricity and telephone service to the island was cut off by the federal government, and more of the occupiers began to leave. In June, the few people remaining on the island were removed by the government. Though the goals of the activists were not achieved, the occupation of Alcatraz had brought national attention to the concerns of American Indian activists.
In 1973, members of the American Indian Movement (AIM), a more radical group than the occupiers of Alcatraz, temporarily took over the offices of the Bureau of Indian Affairs in Washington, DC. The following year, members of AIM and some two hundred Oglala Lakota supporters occupied the town of Wounded Knee on the Lakota tribe’s Pine Ridge Reservation in South Dakota, the site of an 1890 massacre of Lakota men, women, and children by the U.S. Army. Many of the Oglala were protesting the actions of their half-white tribal chieftain, who they claimed had worked too closely with the BIA. The occupiers also wished to protest the failure of the Justice Department to investigate acts of White violence against Lakota tribal members outside the bounds of the reservation.
The occupation led to a confrontation between the American Indian protestors and the FBI and U.S. Marshals. Violence erupted; two American Indian activists were killed, and a marshal was shot. After the second death, the Lakota called for an end to the occupation and negotiations began with the federal government. Two of AIM’s leaders, Russell Means and Dennis Banks, were arrested, but the case against them was later dismissed. Violence continued on the Pine Ridge Reservation for several years after the siege; the reservation had the highest per capita murder rate in the United States. Two FBI agents were among those who were killed. The Oglala blamed the continuing violence on the federal government.
The current relationship between the U.S. government and American Indian tribes was established by the Indian Self-Determination and Education Assistance Act of 1975. Under the act, tribes assumed control of programs that had formerly been controlled by the BIA, such as education and resource management, and the federal government provided the funding. Many tribes have also used their new freedom from government control to legalize gambling and to open casinos on their reservations. Although the states in which these casinos are located have attempted to control gaming on Indian lands, the Supreme Court and the Indian Gaming Regulatory Act of 1988 have limited their ability to do so. The 1978 American Indian Religious Freedom Act granted tribes the right to conduct traditional ceremonies and rituals, including those that use otherwise prohibited substances like peyote cactus and eagle bones, which can be procured only from vulnerable or protected species.
ALASKA NATIVES AND NATIVE HAWAIIANS REGAIN SOME RIGHTS
Alaska Natives and Native Hawaiians suffered many of the same abuses as American Indians, including loss of land and forced assimilation. Following the discovery of oil in Alaska, however, the state, in an effort to gain undisputed title to oil rich land, settled the issue of Alaska Natives’ land claims with the passage of the Alaska Native Claims Settlement Act in 1971. According to the terms of the act, Alaska Natives received 44 million acres of resource-rich land and more than $900 million in cash in exchange for relinquishing claims to ancestral lands to which the state wanted title.
Native Hawaiians also lost control of their land—nearly two million acres—through the overthrow of the Hawaiian monarchy in 1893 and the subsequent formal annexation of the Hawaiian Islands by the United States in 1898. The indigenous population rapidly decreased in number, and settlers tried to erase all trace of traditional Hawaiian culture. Two acts passed by Congress in 1900 and 1959, when the territory was granted statehood, returned slightly more than one million acres of federally owned land to the state of Hawaii. The state was to hold it in trust and use profits from the land to improve the condition of Native Hawaiians.
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