Racial Legislation in Montana that Particularly Affected African Americans

by Kate Hampton, Community Preservation Coordinator

Montana has a long history of racial injustice.  For example, school segregation, bans on interracial marriage, infringements to civil liberties, and inequitable participation in the legal system were all codified in Montana law for significant periods of time.  As part of the Identifying Montana’s African American Heritage Resources project, the Montana Historical Society worked to identify and digitize copies of the laws enacted by Montana Territory and the State of Montana that discriminated against, as well as those designed to protect, the black community.  Based on Glenda Rose Spearman Eruteya’s “Racial Legislation in Montana:  1864 – 1955,” we compiled a list of Montana state legislation passed between 1864 and 2003 that had a particular impact on African Americans.  This annotated list, with links to legislative documents, can be found here. [1]

After Congress declared Montana a territory in 1864, the First Territorial Legislature convened in Bannack to establish its legal framework.  The Legislators used Idaho’s Territorial laws as a template for creating those for Montana, and in doing so, adopted discriminatory practices, including limiting suffrage to white men.  Statutes also restricted a person’s ability, based on race, to serve as a witness in legal proceedings, and allowed only voters (white males) to serve as jurors.  Idaho Territory banned marriages between races, but several Montana Legislators had Indian wives, and that measure failed to pass.[2]

In 1872, the Montana Territorial Legislature came into compliance with the 15th Amendment by expanding suffrage to black men.  It also lifted the witness restriction.  Limitations on jury service, however, remained in place in Montana until outlawed at the national level by the Civil Rights Act of 1875 and Strauder v. West Virginia (1880). [3]  Also in 1872, a new law required segregated schools, stating that

the education of children of African descent shall be provided for in separate schools.  Upon the written application of the parents or guardians of at least ten such children to any board of trustees, a separate school shall be established for the education of such children, and the education of a less number may be provided for by the trustees, in separate schools, in any other manner…. [4]

The law proved unpopular, mainly because of the extra cost incurred by school districts to maintain separate facilities, and was repealed in 1883. [5]

“William M Holland,” The Montana Plaindealer, July 30, 1909,p. 4
In May1908, William Holland, a Helena pianist and vocalist, wore his Improved Benevolent and Protective Order of Elks of the World (IBPOEW) insignia pin in public, in violation of a 1907 Montana law banning such public displays.  He was arrested and fined $100.00.  Holland appealed his case, and the Montana Supreme Court ruled in his favor, declaring the law a violation of the 14^th Amendment.  

As post-Reconstruction discriminatory laws and practices flourished across the country in the late 19th and early 20th century, some Montana citizens engaged in racist, sometimes violent practices.  Voter intimidation, tar-and-feathering, and hangings were reported in local newspapers.  The rise of the Ku Klux Klan and other anti-black organizations, as well as the implementation of local and statewide laws furthered inequity between the races.  For example, a briefly-enforced 1907 state law prohibited African American members of the Improved and Benevolent Protective Order of Elks of the World from wearing the fraternal order’s insignia. [6] The Anti-Miscegenation Act of 1909 made it illegal for whites to marry people of Chinese, Japanese, and/or African descent, and penalized those who performed such marriages.  The Montana Supreme Court upheld the law in 1942.  The legislature finally repealed it in 1953. [7]

While Montana law did not codify discrimination in regard to accommodations, it’s practice was not banned until 1955.  In 1951, the Legislature considered a bill “to guarantee full and equal enjoyment of all places of public accommodation.” [8]  It did not pass.  Four years later, an anti-discrimination in accommodations law (very similar to 1951’s) did pass, though virtually all of the original language and penalties for non-compliance were stripped from the final version. [9] While the law ordered that owners of public places of accommodation or amusement could not discriminate on the grounds of race or religion, enforcement was not uniform.  Several Montana hostelries advertised in The Green Book to indicate that African American travelers were welcome at their establishments.

When Montana’s first equal accommodations bill was introduced in 1951, it included a provision that allowed for violators to be fined up to $500 or jailed for up to 30 days.  That bill failed to become law.  In 1955, House Bill 52 called for equal accommodations, but decreased the proposed maximum penalty to a $50 fine.  The version of the law that passed that year contained no penalty provisions.

The 1964 Civil Rights Act not only provided for the end of segregation in public places, but also outlawed racism in employment, and Montana’s 1972 Constitution established anti-discrimination rights for all in Montana.  Montana lawmakers reaffirmed their commitment against prejudicial practices and codified the state constitution’s directives with the Human Rights Act of 1974, which addressed discrimination in employment, housing, education, public accommodations, and banking. [10] Through the last third of the 20th century, more state legislation passed aimed at protecting the rights of people regardless of race.  In 1989, Montana outlawed malicious intimidation and harassment based on race and allowed for sentencing enhancement for hate crimes. The state also prohibited taking race into consideration when sentencing, and in 2003, enacted a ban on racial profiling. [11]

Montana law has evolved and changed since the first Territorial Legislature convened in December 1864.  Racial legislation affected not only the African American community, but also American Indians, Chinese, and Japanese residents.  While discrimination based on race is no longer legal, prejudice and injustice often remain in practice across Montana and the nation.

[1] Glenda Rose Spearman Eruteya, “Racial Legislation in Montana:  1864 – 1955,” Theses, Dissertations, Professional Papers, Paper 8625. Political Science Department, University of Montana, Missoula, 1981.  Available online: http://scholarworks.umt.edu/cgi/viewcontent.cgi?article=9660&context=etd.

[2] Suffrage:  1864 Idaho Territorial Laws (Idaho T.L.) 560; 1864 Montana Territorial Laws (T. Laws) 375; Reaffirmed 1867 T. Laws 96.

[3] Voting rights extended to all male citizens: 1871-2 T. Laws 460; racial restrictions for witnesses no longer law: 1871-2 T. Laws 125; limits on jury service retained:  1871-2 T. Laws 506 (Section 8). U.S. Civil Rights Act of 1875, 18 Stat 335-337, 43rd Congress, Session II, Chapter 114; Strauder v. West Virginia 100 U.S. 303 (1880).  

[4] 1871-2 T. Laws 627-628 (§ 34).

[5] 1883 T. Laws 56-57.  While repealed in 1883, school segregation was retained in recodification of Territorial Statutes 1887 Revised Statutes 1185(§1892 of the School Law); and repealed finally in 1895 (Senate Bill 39):  1895 S.J. 290; 1895 H.J. 386, 1895 MT Codes 163 (§ 1920; Part III, Title III, Chapter VI, Article XIV).

[6] 1907 Laws 24; The Montana Plaindealer, May 15, 1908, p. 1; State v. Holland, 37 Mont. 393 [aka 96 Pacific Reporter 719 (1908)]. For more information on the national movement to bar African American fraternal organizations’ activities, see Ariane Liazos and Marshall Ganz, “Duty to the Race: African American Fraternal Orders and the Legal Defense of the Right to Organize,” Social Science History, Volume 28, Number 3, Fall 2004, pp. 485-534.  Available online:  http://leadingchangenetwork.org/wp-content/uploads/2012/05/Duty-to-the-RaceAfrican-American-Fraternal-Orders-and-the-Legal.pdf. 

[7] 1909 Senate Bill (S.B.) 34.  “1909 Senate Bill 34,” MT Governors’ Records, MC 35, Bills Received by Governor, Box 4, Folders 8-9; 1953 H.B. 8; In re Shun Takahashi’s Estate, 113 Mont. 490 [aka 129 Pac 2d 217 (1942)]; “House Bill 8,” MT Legislative Assembly Records, 33rd:  1953, LR 33 Box 1, Folder 14, Box 2.

[8] 1951 H.B. 391. “House Bill 391,” MT Legislative Assembly Records (32nd:  1951), LR 32, Box 1, Folder 8 (HB 391)

[9] 1955 House Bill 52; Statute: 1955 Session Laws 525 and 526 (Chapter 240).

[10] Civil Rights Act of 1964, Public Law 88-352, 78 Stat. 241; Constitution of Montana, Article II, Declaration of Rights, Section 4; Montana Human Rights Act (Title 49, Chapter 2 of Montana Codes Annotated).

[11] Hate crimes:  intimidation/harassment – MCA 45-5-221, sentence enhancement -  MCA 45-5-222; Criminal sentencing - MCA 46-18-101.  In 2003, the State of Montana outlawed racial profiling:  MCA 44-2-117.