    [1961 Commission on Civil Rights Report. Book 5: Justice]
    [From the U.S. Government Publishing Office, www.gpo.gov]

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    JUSTICE
    1961 Commission on Civil Rights Report
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    Members of the Commission
    Joh n A. Hannah , Chairman
    Rober t G. Store y , Vice Chairman
    Erwi n N. Grisw old
    Theo do re M. Hes bur gh , C.S.C.
    Rober t S. Ranki n
    Spo tts wo od W. Robi ns on , III
    Ber l I. Bern ha rd , Staff Director
    For sale by the Superintendent of Documents, U.S. Government Printing Office
    Washington 25, D.G.
    Contents
    Book 5: JUSTICE
    Page
    General Contents: Books 1-5............................................................... VII
    Foreword................................................................................................. Ix
    PART VII. EQUAL JUSTICE UNDER LAW........................ 1
    Chap te r i . Intro duct ion ............................................................... 1
    Chap te r 2. Unlawf ul Police Violen ce ....................................... 5
    Patterns of Police Brutality................................................................... 6
    Enforcement of Segregation or Subordinate Status....................... 6
    The Killing of a Negro in Georgia: 1943.................................... 6
    The Killing of a Negro in Georgia: 1958.................................... 9
    Punishment.......................................................................................... 12
    “Gentlemen Cops Don’t Solve Crimes”: Detroit, 1959.............. 13
    Punishment of a Trouble Maker: Idaho, 1959............................ 14
    The Raiford Prison Case: Florida, 1960...................................... 15
    The Third Degree and Coercion of Confessions............................. 16
    Initial Contact and Arrest.................................................................. 18
    A Police Officer Complains of Police Brutality to Himself:
    Detroit, 1960................................................................................. 18
    Search, Seizure, and Violence: Chicago, 1958............................. 20
    The Killing of a Negro in Cleveland: 1959................................. 21
    The Shooting of a Negro in Alabama: 1960................................ 22
    Excessive Counterforce in Philadelphia: 1960............................. 23
    Police Brutality and the Constitution.................................................. 25
    Extent and Effects.................................................................................. 26
    Summary................................................................................................. 28
    Chap ter 3. “Priva te ” Violen ce .................................................... 29
    Alabama: 1961....................................................................................... 29
    Alabama: 1954-61................................................................................. 33
    Jacksonville: 1960................................................................................... 37
    Violence in the North: Chicago 1953-60............................................ 39
    The Lynching of Mack Parker............................................................. 41
    III
    186893
    Page
    Extent and Effects.................................................................................. 43
    Summary................................................................................................. 44
    Chapte r 4. Fede ral Crimina l Sancti ons .................................... 45
    The Statutes............................................................................................ 45
    Violence Under Color of Law........................................................... 45
    Conspiracies to Commit Violence..................................................... 52
    Slavery and Violence.......................................................................... 54
    The Enforcement of the Statutes.......................................................... 55
    Organization of the Civil Rights Division........................................ 56
    Operation of the Civil Rights Division........................................... 56
    Notice of Violations......................................................................... 56
    Decision to Investigate.................................................................... 57
    Investigation: The FBI................................................................... 59
    Prosecution........................................................................................ 62
    Summary................................................................................................. 67
    Chap ter 5. Federal Civil Sancti ons ............................................. 69
    “Nothing Much I Can Do”................................................................. 69
    The Statutes............................................................................................ 71
    The Most Promising Remedy.......................................................... 71
    An Alternative Civil Remedy............................................................ 74
    Other Civil Remedies........................................................................ 76
    Summary................................................................................................. 76
    Chapt er 6. Sta te and Local Remedi es .......................................... 79
    Legal Remedies....................................................................................... 79
    Prosecutors and Criminal Actions.................................................... 79
    Civil Suits by Private Citizens.......................................................... 80
    Discipline by Police Departments......................................................... 82
    Independent Police Advisory Boards................................................... 83
    Selection and Training........................................................................... 84
    Selection of Recruits........................................................................... 84
    Training............................................................................................... 85
    Scientific Police Techniques.......................................................... 85
    Human Relations and “Private” Violence................................. 86
    Leadership............................................................................................... 86
    Summary................................................................................................. 88
    Chap ter 7. Jur y Exc lu sio n .............................................................. 89
    “Familiarity” and “Concern”............................................................... 89
    The Law of Jury Exclusion................................................................... 95
    Existing Remedies................................................................................... 100
    Summary................................................................................................. 103
    IV
    Page
    Chapte r 8. Conc lus ions .................................................................... 105
    Findings................................................................................................... 109
    Unlawful Official Violence................................................................ 109
    The Professional Quality of State and Local Police Forces............ 109
    Federal Criminal Remedies for Unlawful Official Violence.......... no
    Federal Civil Remedies for Unlawful Official Violence................ III
    Discriminatory Exclusion of Minority Groups from Jury Service. III
    Recommendations.................................................................................. 112
    The Professsional Quality of State and Local Police Forces.......... 112
    Recommendation 1........................................................................ 112
    Federal Criminal Remedies for Unlawful Official Violence......... 112
    Recommendation 2........................................................................ 112
    Federal Civil Remedies for Unlawful Official Violence................ 113
    Recommendation 3........................................................................ 113
    Exclusion of Minority Group Members from Jury Service.......... 113
    Recommendation 4........................................................................ 113
    PART VIII. THE AMERICAN INDIAN................................... 115
    Chapt er 1. Intr od uc tio n .................................................................. 115
    The Citizen with a Difference........................................................... 115
    The Struggle for Indian Land.......................................................... 116
    Changes in Federal Policy................................................................. 120
    The Abandonment of Treaties...................................................... 121
    The General Allotment Act........................................................... 122
    The Indian Reorganization Act................................................... 123
    The Dilemma of Indian Policy......................................................... 124
    Chap ter 2. The Leg al Status ......................................................... 125
    The Indian as Sovereign.................................................................... 125
    The Indian as Citizen...................................................................... 127
    The Indian as a Federal “Ward”................................................... 128
    An Ironic Anomaly............................................................................ 131
    Summary............................................................................................. 133
    Chap te r 3. Stat us as a Minor ity ................................................... 135
    The Right To Vote............................................................................ 136
    Public Education................................................................................ 139
    The Administration of Justice.......................................................... 144
    Public Welfare.................................................................................... 148
    Housing and Employment................................................................. 151
    Public Accommodations..................................................................... 152
    Chapte r 4. Con clus ion s ..................................................................... 155
    Findings.................................................................................................... 158
    V
    Page
    PART IX. THE NEED FOR BROADER ACTION................ 161
    General Recommendation to the President........................................ 165
    A Statement by Commissioner Hesburgh........................................... 166
    DOCUMENTATION—BOOK 5....................................................... 171
    Par t VII. Equ al Just ice Under Law ........................................... 171
    Notes.................................................................................................... 171
    Appendix VII..................................................................................... 256
    Selected Bibliography, Part VII....................................................... 278
    List of Cases Cited, Part VII............................................................ 280
    Par t VIII. The Americ an India n .................................................... 285
    Notes.................................................................................................... 285
    Selected Bibliography, Part VIII....................... 293
    List of Cases Cited, Part VIII.......................................................... 294
    Par t IX. The Need fo r Broader Action .................................... 295
    Notes.................................................................................................... 295
    Comm is si on Sta ff Partici pat ing in the Repo rt .............................. 296
    Biog ra ph ica l Index .............................................................................. 299
    VI
    General Contents: Books 1-5
    Book i : VOTING
    Part I: Civil Right s , 1961
    Part II: The Righ t To Vote
    Chapter
    I. Introduction
    2. Status of the Right To Vote
    3. The Louisiana Story
    4. Federal Legislation
    5. Federal Litigation
    6. Statistics of Nonvoting
    7. Gerrymandering and Malapportionment
    8. Conclusions
    Part III: Civil Righ ts in Black Belt Coun ties
    Chapter
    I. Introduction
    2. The Setting
    3. Negro Voting
    4. Rights and the Negro Majority
    5. Conclusions
    Book 2, Part IV: EDUCATION
    Chapter
    I. Introduction
    2. Supreme Court Opinions
    3. The Law of Desegregation
    4. Desegregation in the South
    5. Legislative Resistance
    6. The Threat to Education
    7. Segregation North and West
    8. Problems and Programs
    9. Southern Libraries
    10. Role of the Executive Branch
    11. The Colleges
    12. Conclusions
    Book 3, Part V: EMPLOYMENT
    Chapter
    I. Introduction
    2. Emergence of a Policy
    3. Government as Employer
    4. Government: Creator of Employment
    5. Training and Placement
    6. Unions: Impact on Employment
    7. Conclusions
    Book 4, Part VI: HOUSING
    Chapter
    1. Introduction
    2. The Emergence of a Policy
    3. The Government and Housing Credit
    4. Urban Renewal
    5. Other Federal Programs
    6. State and Local Action
    7. Conclusions
    Boo k 5: JUSTICE
    Part VII: Equ al Justic e Under Law
    Chapter
    1. Introduction
    2. Unlawful Police Violence
    3. “Private” Violence
    4. Federal Criminal Sanctions
    5. Federal Civil Sanctions
    6. State and Local Remedies
    7. Jury Exclusion
    8. Conclusions
    Part VIII: The Amer ican Ind ian
    Chapter
    1. Introduction
    2. The Legal Status
    3. Status as a Minority
    4. Conclusions
    Part IX: The Need for Broader Acti on
    VII
    Foreword
    The United States Commission on Civil Rights was created by the Civil
    Rights Act of 1957 as a bipartisan agency to study civil rights problems
    and report to the President and Congress. Originally created for a 2-
    year term, it issued its first comprehensive report on September 8, 1959.
    On September 14, 1959, Congress extended the Commission’s life
    for another 2 years. This is the fifth of five volumes of the Commission’s
    second statutory report.
    Briefly stated, the Commission’s function is to advise the President
    and Congress on conditions that may deprive American citizens of equal
    treatment under the law because of their color, race, religion, or national
    origin. The Commission has no power to enforce laws or correct any
    individual wrong. Basically, its task is to collect, study, and appraise
    information relating to civil rights throughout the country, and to make
    appropriate recommendations to the President and Congress for corrective
    action. The Supreme Court has described the Commission’s
    statutory duties in this way:
    ... its function is purely investigative and factfinding. It does
    not adjudicate. It does not hold trials or determine anyone’s civil
    or criminal liability. It does not issue orders. Nor does it indict,
    punish, or impose any legal sanctions. It does not make determinations
    depriving anyone of his life, liberty, or property. In short,
    the Commission does not and cannot take any affirmative action
    which will affect an individual’s legal rights. The only purpose of
    its existence is to find facts which may subsequently be used as the
    basis for legislative or executive action.
    Specifically, the Civil Rights Act of 1957, as amended, directs the
    Commission to:
    • Investigate formal allegations that citizens are being deprived of their
    right to vote and have that vote counted by reason of their color, race,
    religion, or national origin;
    • Study and collect information concerning legal developments which
    constitute a denial of equal protection of the laws under the Constitution;
    IX
    • Appraise the laws and policies of the Federal Government with respect
    to equal protection of the laws under the Constitution;
    • Prepare and submit interim reports to the President and the Congress
    and a final and comprehensive report of its activities, findings, and recommendations
    by September 9, 1961.
    The Commission’s 1959 Report included 14 specific recommendations
    for executive or legislative action in the field of civil rights. On
    January 13, 1961, an interim report, Equal Protection of the Laws in
    Public Higher Education, containing three additional recommendations
    for executive or legislative action, was presented for the consideration
    of the new President and Congress. This was a broad study of the
    problems of segregation in higher education.
    The material on which the Commission’s reports are based has been
    obtained in various ways. In addition to its own hearings, conferences,
    investigations, surveys and related research, the Commission has had the
    cooperation of numerous Federal, State, and local agencies. Private
    organizations have also been of immeasurable assistance. Another
    source of information has been the State Advisory Committees which,
    under the Civil Rights Act of 1957, the Commission has established in
    all 50 States. In creating these committees, the Commission recognized
    the great value of local opinion and advice. About 360 citizens are now
    serving as committee members without compensation.
    The first statutory duty of the Commission indicates its major field of
    study—discrimination with regard to voting. Pursuant to its statutory
    obligations, the Commission has undertaken field investigations of formal
    allegations of discrimination at the polls. In addition, the Commission
    held public hearings on this subject in New Orleans on September 27
    and 28, i960, and May 5 and 6, 1961.
    The Commission’s second statutory duty is to “study and collect information
    concerning legal developments constituting a denial of equal
    protection of the laws under the Constitution.” This takes in studies
    of Federal, State, and local action or inaction which the courts may be
    expected to treat as denials of equal protection. Since the constitutional
    right to equal protection is not limited to groups identified by color,
    race, religion, or national origin, the jurisdiction of the Commission is
    not strictly limited to discrimination on these four grounds. However,
    the overriding concern of Congress with such discrimination (expressed
    in congressional debates and in the first subsection of the statute) has
    underscored the need for concentrated study in this area.
    Cases of action or inaction discussed in this report constitute “legal
    developments as well as denials of equal protection. Such cases may
    have been evidenced by statutes, ordinances, regulations, judicial decisions,
    acts of administrative bodies, or of officials acting under color
    of law. They may also have been expressed in the discriminatory application
    of nondiscriminatory statutes, ordinances or regulations. Inaction
    of government officials having a duty to act may have been indicated,
    for example, by the failure of an officer to comply with a court
    order or the regulation of a governmental body authorized to direct his
    activities.
    In discharging its third statutory duty to “appraise the laws and
    policies of the Federal Government with respect to equal protection of
    the laws under the Constitution,” the Commission evaluates the effectiveness
    of measures which by their terms or in their application either
    aid or hinder “equal protection” by Federal, State, or local government.
    Absence of Federal laws and policies that might prevent discrimination
    where it exists falls in this area. In appraising laws and
    policies, the Commission has considered the reasons for their adoption
    as well as their effectiveness in providing or denying equal protection.
    The 195g Report embraced discrimination in public education and
    housing as well as at the polls. When the Commission’s term was
    extended in 1959, it continued its studies in these areas and added
    two major fields of inquiry: Government-connected employment and
    the administration of justice. A preliminary study looked into the civil
    rights problems of Indians.
    In the public education field, the problems of transition from segregation
    to desegregation continued to command attention. To collect
    facts and opinion in this area, the Commission’s Second Annual Conference
    on Problems of Schools in Transition was held March 21 and
    22, i960, at Gatlinburg, Tenn. A third annual conference on the same
    subject was held February 25 and 26, 1961, at Williamsburg, Va.
    To supplement its information on housing, education, employment,
    and administration of justice the Commission conducted public hearings
    covering all of these subjects in California and Michigan. On January
    25 and 26, i960, such a hearing was held at Los Angeles; and on
    January 27 and 28, i960, in San Francisco. A Detroit hearing took
    place on December 14 and 15, i960.
    Commission membership
    Upon the extension of the Commission’s life in 1959, and at the request
    of President Eisenhower, five of the Commissioners consented to remain
    in office: John A. Hannah, Chairman, president of Michigan State
    University; Robert G. Storey, Vice Chairman, head of Southwestern
    Legal Center and former dean of Southern Methodist University Law
    School; Doyle E. Carlton, former Governor of Florida; Rev. Theodore
    M. Hesburgh, C.S.C., president of the University of Notre Dame; and
    George M. Johnson, professor of law and former dean of Howard
    University School of Law.
    John S. Battle, former Governor of Virginia, resigned. To replace
    him the President nominated Robert S. Rankin, chairman of the depart-
    XI
    ment of political science, Duke University. This nomination was confirmed
    by the Senate on July 2,1960.
    On March 16, 1961, President Kennedy accepted the resignations of
    Doyle E. Carlton and George M. Johnson. A few weeks later he nominated
    Erwin N. Griswold, dean of Harvard University Law School
    and Spottswood W. Robinson III, dean of the Howard University
    School of Law, to fill the two vacancies. The Senate confirmed these
    nominations onjuly27, 1961.
    Gordon M. Tiffany, Staff Director for the Commission from its
    inception, resigned on January 1, 1961. To replace him, President
    Eisenhower appointed Berl I. Bernhard to be Acting Staff Director on
    January 7, 1961. He had been Deputy Staff Director since September
    25, 1959. On March 15, 1961, President Kennedy nominated him as
    Staff Director. The Senate confirmed his nomination on July 27, 1961.
    Part VII. Equal Justice Under Law
    1. Introduction
    The Commission has been disturbed by persistent reports of unconstitutional
    and violent acts by some agents of justice in the United States.
    After an extensive review of these allegations and the entire field of
    administration of justice, the Commission authorized a study of three
    problems: (i) police brutality and related private violence; (2) the
    Civil Rights Acts and their enforcement; and (3) jury exclusion.
    In 1931 President Hoover’s Wickersham Committee found extensive
    evidence of police lawlessness, including unjustified violence.1 Sixteen
    years later another Presidential Committee, this one appointed by President
    Truman, concluded that police brutality, especially against the
    unpopular, the weak, and the defenseless, was a distressing problem.2
    And now in 1961 this Commission must report that police brutality is
    still a serious problem throughout the United States.
    Police connivance with private persons in acts of violence is not as
    widespread. But the recent racial outbursts in Alabama demonstrate
    that it is still a problem. Referring to the Montgomery incident, Federal
    Judge Frank Johnson, Jr. stated that local police officers had purposely
    failed to curb the mob, a failure which “clearly amount fed] to unlawful
    state action in violation of the Equal Protection Clause ...” 3
    At least one form of mob violence—as to which the police have not
    been entirely blameless—is becoming less common. At the beginning
    of this century the annual toll of lynchings ran into the hundreds. During
    the 14 years prior to the Truman Committee report of 1947 there
    were 123 known lynchings. During the 14 years since that report there
    have been 14. Not one has been reported in the past 2 years.4 Yet the
    threat lives on: 5
    The devastating consequences of lynching go far beyond what is
    shown by counting the victims. When . . . lynchers go unpunished,
    thousands wonder where the evil will appear again and what
    mischance may produce another victim.
    1
    The major responsibility for the control of violence rests upon State
    and local governments. But the Federal Government also has responsibilities
    in this area that are imposed upon it by the Constitution and
    by the Civil Rights Acts. And so the Commission has sought to discover
    how effective the Civil Rights Acts have been in combating police
    brutality and associated private violence. President Truman’s Committee
    in 1947 found weaknesses both in the Acts and in their enforcement.
    Its recommendation that the Civil Rights Section of the Department of
    Justice be expanded into a full Division was accomplished by the Civil
    Rights Act of 1957. This report will consider the effectiveness of the
    existing legislation in light of the new administrative machinery.
    The fact that Negroes generally do not have fair representation in the
    agencies of justice is also relevant to an understanding of criminal justice
    in the United States. In many communities, for example, they have no
    real opportunity to serve on a grand or petit jury. This can hardly contribute
    to impartiality in the administration of justice or to respect for
    the agencies of law on the part of those who are excluded. To the extent
    that exclusion is the result of discriminatory governmental action it violates
    the Constitutional standard of equal protection.
    This threefold study of administration of justice is concerned with
    denials of equal protection and with Federal laws and policies directed
    toward such denials. The Commission’s jurisdiction derives from the
    statutory provisions that require it to: 6
    (2) study and collect information concerning legal developments
    constituting a denial of equal protection of the laws under the
    Constitution; and
    (3) appraise the laws and policies of the Federal Government with
    respect to equal protection of the laws under the Constitution.
    Where a State discriminates in the selection of jurors, the denial of equal
    protection is obvious.7 So also if it deliberately discriminates in the
    employment of policemen.8 In cases of police brutality (which are ordinarily
    treated as deprivations of due process) denials of equal protection
    are not always obvious. Yet, in many instances such denials are present.9
    Private violence comes within the ban of the equal protection clause—
    and so within the Commission’s jurisdiction—when by police “support”
    it becomes in effect State action.10
    The victims of lawlessness in law enforcement are usually those whose
    economic and social status afford little or no protective armor—the poor
    and racial minorities. Members of minority races, of course, are often
    prevented by discrimination in general from being anything but poor.
    So, while almost every case of unlawful official violence or discrimination
    studied by the Commission involved Negro victims, it was not always
    clear whether the victim suffered because of his race or because of his
    2
    lowly economic status. Indeed, racially patterned police misconduct and
    that directed against persons because they are poor and powerless are
    often indistinguishable. However, brutality of both types is usually a
    deprivation of equal protection of the laws and of direct concern to
    the Commission.
    It is the considered judgment of the Commission that in most respects
    criminal justice is administered in the United States on a nondiscriminatory
    basis. Indeed, our progress toward the ideal of Equal Justice Under
    Law should be a source of pride for all Americans. The Commission is
    particularly impressed by the fact that most police officers never resort
    to brutal practices. Because of this fact, instances of brutality or discrimination
    in law enforcement stand out in bold relief. It is hoped that by
    focusing the attention of the President, the Congress, and the public on
    these remaining incongruities, this Report may contribute to their
    correction.
    3

    2. Unlawful Police Violence
    The Commission’s study of the administration of justice concentrates on
    police brutality—the use of unlawful violence—against Negroes. Complaints
    and litigation suggest four subdivisions of the problem. The
    first involves the use of racially motivated brutality to enforce subordination
    or segregation. The second, a not altogether separate category,
    entails violence as a punishment. The third relates to coerced
    confessions. The last and largest entails the almost casual, or spontaneous,
    use of force in arrests. Only the first category necessarily
    involves racial discrimination. In the others it may, or may not, be
    present, but Negroes are the victims with disproportionate frequency.
    In the text of this chapter the Commission briefly describes the alleged
    facts in 11 typical cases of police brutality. They are presented in
    the belief that they contribute to an understanding of the problem. The
    allegations of misconduct are supported in several cases by criminal
    convictions1 or findings by impartial agencies; in others, by sworn testimony,
    affidavits from eye witnesses, or by staff field investigations. In
    no case has the Commission determined conclusively whether the complainants
    or the officers were correct in their statements. This is the
    function of a court. The Commission is of the opinion, however, that
    the allegations appeared substantial enough to justify discussion in this
    study.
    Most citizens do not look upon policemen with fear. Indeed, the
    law officer’s badge has become a symbol worthy of much respect. There
    is good reason for this. Many citizens call upon policemen for aid in
    any emergency. And it is the policeman who must enforce the criminal
    law. The extent of the burden on this country’s approximately 200,000
    policemen2 is demonstrated by the 1,861,300 serious offenses reported
    in i960.3 In carrying out their vital mission policemen sometimes face
    extreme danger. The Federal Bureau of Investigation recently
    reported: 4
    During 1959, 49 police employees were killed in line of duty, . . .
    pointing up the hazardous nature of the occupation and the devotion
    to duty of these dedicated men. In i960, 48 police lost
    their lives. *
    599614—61------2 5
    Moreover, in i960 a total of 9,621 assaults on American policemen were
    reported to the FBI. This amounts to a rate of 6.3 assaults for every 100
    police officers in the country.5 The Commission’s study of denials of
    rights to citizens by some policemen should be viewed in the context
    of the difficult and dangerous job that policemen are required to perform.
    PATTERNS OF POLICE BRUTALITY
    Enforcement of segregation or subordinate status
    The killing of a Negro in Georgia: 1943.—In the early morning of
    January 30, 1943, Manley Poteat responded to a call for an ambulance
    at the jail in Newton, Baker County, Georgia. He explained in sworn
    testimony later that he found an “unconscious” man crawling around in
    a pool of blood on the floor of a cell.6 The man was a young Negro,
    Bobby Hall, a skilled mechanic who was married and had one child. He
    was taken to a hospital in Albany, 22 miles away, where he died approximately
    1 hour after his arrival. When Walter Poteat, Manley’s father,
    embalmed the body, he observed that it had been brutally beaten.7
    The authorities in Albany, which is not in Baker County, were notified
    and saw the body; photographs were made; and the matter soon came
    to public attention. Sheriff Claude M. Screws—and the other officers—
    who beat and killed Hall were later prosecuted by the Federal Government
    for violation of an 1866 statute that makes it a Federal crime for an
    officer of the law to interfere with the constitutional rights of any person.8
    In beating and killing young Hall without justification, a Federal grand
    jury in Macon charged, the sheriff had deprived the victim of a number
    of constitutional rights including the right not to be subjected to punishment
    except after a fair trial and the right to equal protection of the
    laws. Screws was convicted, and eventually appealed to the Supreme
    Court, challenging the constitutionality of the statute. In the landmark
    decision of Screws v. United States,9 the Supreme Court in 1945 upheld
    the statute, construed it strictly, and overturned the conviction because
    it had not been established that in killing Bobby Hall, Screws had intended
    to deprive him of a constitutional right.10 Screws was later tried
    again under the standard set forth by the Supreme Court and acquitted.11
    While this example of police brutality took place almost two decades
    ago it is still a classic case. Recent complaints coming to the attention of
    this Commission contain allegations that bear a striking similarity to it.
    For this reason the case will be described in detail.
    Sheriff Screws testified at his first trial that the trouble began late
    that January evening in 1943 when he asked night patrolman Frank E.
    6
    Jones and Deputy Sheriff Jim Bob Kelley to serve a warrant of arrest
    on Bobby Hall for theft of a tire. The two men brought the Negro
    back to Newton in the Sheriff’s car. Screws continued: 12
    I opened the door and I said, “All right, Bobby, get out” and I
    noticed he wasn’t in any hurry to get out but when he, when I did
    see him come out, I saw something coming out ahead of him like
    that (indicating) and I discovered it was a gun; and he said, “You
    damn white sons”—and that is all I remember what he said. By
    that time I knocked the gun up like that and the gun fired off right
    over my head; and when it did he was on the ground by then and
    me and Kelley and Jones ran in to him and we all were scuffling and
    I was beating him about the face and head with my fist. I knew
    Jones had a blackjack and I told him to hit him and he hit him a
    lick or two and he didn’t seem to weaken and I said, “Hit him
    again!” When he fell to the ground, we didn’t hit him on the
    ground.
    * * *
    At no time when I saw the deceased or Bobby Hall did he have any
    handcuffs on him.
    The only colored prosecution witness who observed a crucial part
    of this event was Mrs. Annie Pearl Hall, the wife of the victim. She
    contradicted, in part, one vital item in the defendant’s case: Mrs. Hall
    stated that after the victim left their home under arrest, “they were
    handcuffing him when I went to the door.” 13 All three of the officers
    said that he had never been handcuffed and was, therefore, able to grab
    the shotgun from the front seat of the car and attack them with it.
    While there are many similarities between this case and others in
    Commission files, there is one major difference. A number of white
    people observed the beating of Bobby Hall and events connected with
    it—and appeared at the trial as witnesses. Their stories supported one
    another and directly contradicted that of Screws. The testimony of
    these witnesses may be summarized as follows: Screws and his companions
    had threatened to get a “nigger” that night; they took Hall to
    an open area in the center of town near the public pump; the three men
    beat him to the ground and continued for 15 to 30 minutes to pound
    him with a heavy object—which was later found to be a 2-pound metal
    blackjack; the victim was handcuffed during all of these proceedings;
    after the beating the shotgun was fired once—not by the unconscious
    victim but apparently by one of the officers for some unknown reason.14
    One of the white eyewitnesses who appeared at the trial and swore to
    these facts was Mrs. Ollie Jernigan. Her husband, J. H. Jernigan, did
    not see the incident, but he testified that he was walking through town
    one day and Sheriff Screws called him over to his car where the following
    conversation took place: 15
    7
    “Herschell, you know those FBI men are down here investigating
    that case?” He said, “Well, I understand that your wife saw it.”
    I told him “Yes.” He says, “Well, you know we have always been
    friends and I want us to continue to be friends.” I told him, “Well,
    I hoped we could.”
    The dynamics of combined prejudice and violence in this case are suggested
    in the testimony of James P. Willingham, a white man, who said
    that shortly after the killing he had a talk with his friend, Officer Frank
    Jones: 10
    [H]e told me that the Negro had a mighty good pistol and they had
    taken it away from him and the Negro acted so damn smart and went
    before the Court in some way trying to make them give it back to
    him . . . and that they went out there that night with a warrant
    and arrested him and handcuffed him and brought him to town and
    the Negro put up some kind of talk about wanting to give bond or
    something to that effect and they beat hell out of him; then, that
    when they got him up to the well they whipped him some more and
    he died shortly afterwards. He said the Negro attempted to shoot
    them at the well; said the Negro attempted to shoot them at the
    well with a shotgun and said he hit him with a blackjack pretty
    hard and I asked him about how in the world did the Negro try
    to shoot you and you had him handcuffed and he said well we
    finished him off and that is all.
    Bobby Hall apparently was considered a somewhat “uppity” Negro.
    Evidence produced at the trial indicated that the tire theft charge was
    a sham for, as suggested in the Willingham testimony, Hall’s major
    “crime” was to challenge the power of the sheriff to confiscate his pistol.
    Bobby Hall was not accused of any crime in connection with the weapon.
    He needed it, he claimed, for protection. In attempting to exercise not
    his civil rights but his property rights, Hall contacted a lawyer and even
    went before a local grand jury. But he did not recover his pistol.17 And,
    while he never challenged the system of segregation, he was something
    of a leader among Negroes.18
    No State or local action was taken against the alleged offenders.
    Prosecution by the State—which has the power to impose the supreme
    penalty—may be blocked in cases of this type by the fact that the potential
    defendant is the person who must start up the machinery of the
    criminal law. While the district solicitor general in the Screws case
    had formal power to prosecute, he reportedly felt “helpless in the matter”
    because he had “to rely upon the sheriff and policemen of the various
    counties of his circuit for investigation.” 19 In the absence of an investigation
    and a complaint from Sheriff Screws, or by another police officer
    implicating Screws, no prosecution was commenced. In police bru-
    8
    tality cases where the potential defendant is not the chief law enforcement
    officer of the county, there is a greater possibility of criminal
    or disciplinary action by local authorities. But even in such situations,
    local action against officers of the law is not common.20
    Neither Screws nor any of his associates was ever punished. They
    experienced the difficulty and expense of months of litigation but a
    second Federal jury acquitted them. The episode did not seriously
    tarnish the reputation of Claude M. Screws. In 1958 he ran for the
    State Senate and was elected.
    The killing of a Negro in Georgia: 1958.—The town of Dawson in
    Terrell County, Ga. is approximately 30 miles south of Newton. There
    on April 20, 1958, James Brazier, a Negro in his thirties, suffered a
    beating at the hands of officers of the law (from which he later died) —
    in circumstances similar to those in the Screws case.21
    According to the police account, the incident started in the early
    evening of Sunday, April 20, 1958, when Dawson Police Officer “X”
    arrested James Brazier’s father on a charge of driving under the influence
    of alcohol. When the elder Brazier resisted, he was subdued by
    a blackjack. James Brazier protested and, according to the policemen,
    threatened the officer who later returned with Officer “Y” and arrested
    the younger Brazier, allegedly with a warrant, for interfering with an
    arrest. He resisted violently and was subdued with a blackjack. Shortly
    thereafter he was taken to jail and examined by a local physician who
    found no serious injury.22
    Brazier died 5 days later at a hospital in Columbus, Ga. from brain
    damage and a fractured skull. He had four to six bruised spots on his
    scalp from a blunt instrument which apparently also caused the skull
    fracture.23 The police claimed that Brazier was hit only once or twice
    at the time of the arrest.
    In a sworn statement to Commission representatives Mrs. Hattie Bell
    Brazier, the widow of the victim, claimed that this affair had actually
    started months earlier. Mrs. Brazier explained that she and her husband
    had purchased a new Chevrolet in 1956—and another in 1958.24
    In November of 1957 James Brazier had been arrested on a speeding
    charge. According to Mrs. Brazier, her husband told her that Dawson
    Officer “Y” took him to jail, and that: 25
    “When I first entered the door of the jail, [“Y”] hit me on the
    back of the head and knocked me down and said, ‘You smart sonof-
    a-bitch, I been wanting to get my hands on you for a long time.’
    I said, ‘Why you want me for?’ [“Y”] said, ‘You is a nigger who
    is buying new cars and we can’t hardly live. I’ll get you yet.’ ”
    Officer “Y” then allegedly hit Brazier several more times, put his foot
    on the small of the prostrate Negro’s back (Mrs. Brazier said she saw
    9
    the footprints there later), and warned him, “You’d better not say a
    damn thing about it or I’ll stomp your damn brains out.” After his
    release from jail, Brazier was bleeding from his ear and vomiting blood.
    From this time in the fall of 1957 until the second incident in April of
    1958, James Brazier was under the care of a local white doctor because
    of these injuries. Officer “X”, the policeman who accompanied “Y”
    during the arrest in April 1958, also allegedly made a remark about
    the new car at some time previous to the fatal incident.26 It appears
    that James Brazier of Terrell County, like Bobby Hall of Baker County,
    was considered an “uppity” Negro.
    The story of the fatal incident in 1958 as told by Mrs. Brazier and
    several other colored witnesses contradicts the account given by the
    officers. In her affidavit Mrs. Brazier stated that her husband had been
    beaten brutally by the arresting officers in full view of numerous colored
    people, including herself and her four children. No warrant was presented
    by the officers, nor was any paper observed in their hands. The
    officers, she said, simply ran out of their car and roughly grabbed her
    husband. While pulling him toward the police car, “Y” beat him
    repeatedly with a blackjack. Mrs. Brazier’s affidavit continued: 27
    [“Y”] then said, “You smart son-of-a-bitch, I told you I would get
    you.” James said, “What do you want to hurt me for? I ain’t
    done nothing. I got a heap of little chillun. [sic].” [“Y”] said,
    “I don’t give a goddamn how many children you got, you’re going
    away from here” . . . [“Y”] pulled out his pistol and stuck it
    against James’ stomach and said, “I oughta blow your goddam
    brains out.”
    Then these events allegedly occurred: James Brazier’s 10-year-old
    son pleaded with the officers to stop beating his father and was knocked
    to the ground by “Y”;28 the victim was thrown onto the floor of the
    police car with his legs dangling outside; “Y” kicked him twice in
    the groin; slammed the car door on his legs; threw a hat full of sand into
    his bloody face, and drove off.29
    When Brazier reached the jail, he was bloody but conscious and apparently
    not seriously injured by the beating he had received. Yet,
    when he was taken to court the next morning, he was virtually unconscious.
    The question that arises is whether Brazier was beaten during
    the interval between his arrival in jail at approximately 7 p.m. and
    his appearance in court at approximately 9 a.m. the next day. There
    is evidence that he was. It comes from several witnesses, one of whom
    has since died 30 and may be identified—Marvin Goshay, a Negro who
    was 23 years of age when he signed an affidavit on August 24, i960
    during an interview with Commission representatives in Albany, Ga.
    Goshay was in jail on a charge of assault and battery when Brazier was
    10
    incarcerated. The story, as Goshay saw it, is as follows: When James
    Brazier was brought into the jail he was fully dressed in suit, shirt, tie, and
    shoes. He talked coherently to Goshay (describing his arrest consistently
    with Mrs. Brazier’s later testimony). Several hours later—probably
    around midnight—he was ordered out of the cell by Officers “X” and
    “Y”. “They took Brazier out again,” Goshay stated in his affidavit.
    “He asked them to wait because he wanted to put on his shoes. The
    police said, ‘You won’t need no shoes.’ ” This was the last time that
    Goshay saw him that night. Goshay next saw Brazier on the following
    morning. His affidavit continued:
    He had on pants, a torn undershirt, no coat, no tie, no white shirt.
    The last time I saw him, he had on a blue suit, white shirt, and tie.
    He looked worse on his head than when I saw him also ... It
    was beaten worse than when I first saw him. On his back were
    about four long marks about a foot long. They looked reddish
    and bruised. His head was bleeding. We had to carry [him]
    to the car because he couldn’t walk. He was slobbering at the
    mouth. When we got to the car, James, who was dazed but not
    completely out, didn’t know enough to get in the car. Mr. [“Z”—
    a Dawson police officer] said if he didn’t get in, he’d beat him with
    his blackjack.
    More than a year after Brazier’s death Sheriff Z. T. Mathews of Terrell
    County allegedly made the following statement to Mrs. Brazier: 31
    I oughta slap your damn brains out. A nigger like you I feel like
    slapping them out. You niggers set around here and look at television
    and go up North and come back and do to white folks here
    like the niggers up North do, but you ain’t gonna do it. I’m gonna
    carry the South’s orders out like it oughta be done.
    [
    Also, Sheriff Mathews told reporter Robert E. Lee Baker, “You know,
    Cap, . . . there’s nothing like fear to keep niggers in line. I’m talking
    about ‘outlaw’ niggers.” 32
    No local disciplinary or criminal action was taken against any of the
    officers involved. The attitude of local authorities toward police was
    protective in this and several other cases of alleged brutality that occurred
    within a brief period in Dawson. Indeed, there was indignation when
    Negroes claimed they were “living in an atmosphere of fear.” 33 As in
    the Screws case the Department of Justice was sufficiently impressed
    with the results of an FBI investigation to authorize Civil Rights Acts
    prosecutions. From August 4 to 8, 1958, the local United States
    Attorney presented witnesses to a Federal grand jury in Macon and
    requested indictments in five cases of alleged police brutality against
    11
    policemen “X,” “Y,” and another Dawson officer.34 The grand
    jury returned no indictments.35
    In the 15 years between the death of Bobby Hall and the death of
    James Brazier the world had changed in many ways. But in Terrell and
    Baker, as in some other rural southern counties,36 the economy, the
    social system, and racial attitudes remained virtually what they had
    been. James Griggs Raines who owns many of the buildings in Dawson
    and has been its Mayor, explained in a i960 interview that, “This is a
    feudalistic system. But I don’t know if, or how, it will be changed.” 37
    Few Negroes vote in these counties and in most ways they are deprived
    and subordinate. Officers of the law sometimes enforce this status by
    illegal or violent methods.38
    Not long after Brazier died, police officer “Y” was promoted to
    Chief of the Dawson Police Department. Z. T. Mathews at this writing
    is still sheriff of Terrell County.
    The Hall and Brazier cases are more dramatic than most, partly because
    they resulted in death. But the Commission has reviewed complaints
    and reports of similar incidents. Reports of some of the most
    heinous of these have come to the Commission from the Mississippi State
    Advisory Committee which says that it has received “many and at times
    almost unbelievable reports of atrocities and brutalities” perpetrated by
    law enforcement officials.39 As with many other current complaints,
    these are now under investigation by the Department of Justice and for
    that reason will not be considered here.
    Some of the worst complaints of police brutality have included allegations
    that the officers involved expressed some racial motive for their
    conduct. The extensive violence found in the Hall and Brazier cases,
    for example, is rarely seen in incidents where there is no element of racial
    hate.
    Punishment
    A student said the Batista police were so sadistic, once the policemen
    put you in a scout car, you had your judge and jury, trial and
    punishment before you get out.
    My most embarrassing moment came when a student asked me did
    the police in Detroit beat people. What could I say? 40
    The primary motivation for police brutality in the cases discussed
    above and in similar ones seem to have been a desire to “keep the Negro
    in his place.” Cases of similar misconduct often occur—in many parts
    of the Nation—that appear to have been motivated by a desire to punish
    for reasons other than violation of local segregation customs.41 A few
    examples are described in this section.
    12
    Policemen and comparable officials have absolutely no authority to
    punish anyone. Police may use whatever force is necessary to defend
    themselves and perform their public duties—beyond that they act
    illegally.42 As the Wickersham Commission wrote three decades ago,
    “their fight against lawless men, if waged by forbidden means, is degraded
    almost to the level of a struggle between two law-breaking
    gangs.” 43
    “Gentlemen cops don’t solve crimes”: Detroit, ig$g-—A fight between
    eight Negro boys and several policemen took place in Detroit
    on the evening of September io, 1959. There was a direct conflict in
    the stories of the policemen and the youths as to the cause of this eruption,
    but it is undisputed that four of the policemen were injured and
    sent to a hospital for treatment.
    When Thaddeus Steel, one of the boys involved, arrived at the police
    station, a white reporter from the Detroit Free Press observed his
    reception and reported as follows: 44
    A 16-year-old boy, arrested for hitting a policeman with a chair,
    was beaten and kicked by at least four patrolmen Thursday night
    after he was a prisoner in the Vernor Station garage.
    * * *
    Steel was brought into the police garage in a scout car, closely
    followed by three other cars filled with police.
    He sat in the back seat of the car. His face showed pain. There
    was a patrolman sitting next to him.
    As the car halted, the patrolman left the car and yanked Steel
    from it by the neck. Another patrolman raced up.
    “Is this him?” he shouted.
    Then he threw a fist into Steel’s face.
    A second patrolman pushed that assailant aside and sank his
    fist into Steel’s stomach.
    Steel fell to the garage floor, moaning.
    * * *
    The newsmen stood outside the open door of the garage.
    One of the policemen saw them and shouted:
    “Lower that door!”
    But all were too busy slugging Steel, now prone on the floor.
    They dragged him to the side and the onlookers could see only
    patrolmen kicking and slugging at him.
    “Lower that door!” shouted one again.
    Two detectives had entered the other side of the garage and
    strode grimly across to the newsmen. Their expressions softened as
    they reached them.
    “Gentlemen cops don’t solve crimes,” one of the detectives said.
    The patrolmen picked Steel up and rushed him into the station.
    The detectives turned and walked away.
    * * *
    Inspector Leslie Caldwell, commander of the station, is on
    furlough.
    Lt. Raymond Glinski, acting inspector at Vernor, said, “We
    can’t use kid gloves on gang fighters.”
    “When policemen are sent to the hospital, we don’t want to tap
    the hoodlums who hurt them on the shoulder and send them home,”
    he said.
    “After all, four policemen were hit seriously enough by juveniles
    to be admitted and the juvenile was released from Receiving Hospital
    without treatment.”
    Glinski said he did not want to condone beating of prisoners.
    “But, after all, when it’s a question of a policeman going to the
    hospital or a hood, I think both should go,” he said.
    After an investigation, Detroit Police Commissioner Herbert W. Hart
    decided to take no action against the police officers and announced
    that “no evidence to substantiate charges of police brutality” had been
    found.45 “As far as I am concerned, it is a closed issue,” he added.46
    When asked by the Detroit Free Press for amplification regarding the
    eyewitness story of its reporter, Commissioner Hart said that he did “not
    disbelieve” it.47 The newspaper editorialized, “The facts stated in our
    story were accurate.” 48 But the editor admitted that the reporter
    could identify only one detective who was present at the beating.
    Wayne County Prosecutor Samuel H. Olsen also ordered an investigation
    but did not prosecute because the alleged assailants could not be
    identified.49 The Federal Government did not prosecute under the
    Civil Rights Acts. Several of the older Negroes were prosecuted by
    the State and convicted of conspiracy to commit assault and battery.
    Thaddeus Steel and the other juveniles were released after a hearing
    on similar charges by the juvenile court.
    Punishment of a trouble maker: Idaho, 1959.—James LaFleur, a
    Canadian-born Cree Indian, was allegedly drunk on the night of August
    15, 1959, and got in a fight,50 at a bar in the town of Blackfoot, Idaho.
    Three members of the Blackfoot Police Department—Officers Clark,
    Twitchell, and Ockerman—took LaFleur into custody on charges of
    drunkenness and disorderly conduct. Instead of taking him to the local
    jail, they took him to the city limits. There Officer Clark beat him with
    his night stick and knocked him unconscious.
    When LaFleur recovered consciousness, the police had left. In great
    pain and bleeding profusely, he staggered to a nearby farmhouse and
    got help from the State Police. Although severely injured, he recovered.
    14
    The Blackfoot Chief of Police suspended Clark from duty pending
    trial. His fellow officers testified against him in a Federal prosecution
    for violation of LaFleur’s constitutional right not to be subjected to
    summary punishment.51 The theory of the Government’s case was that
    LaFleur had been beaten illegally for the purpose of punishment only.
    Rejecting Clark’s claim that he had merely tried to overcome unlawful
    resistance, the jury brought in a verdict of guilty. On November 5,
    1959, Judge Fred M. Taylor imposed a fine of $500 and sentenced Clark
    to serve 60 days in the custody of the Attorney General. The latter
    penalty was suspended upon payment of the fine.
    The Raiford Prison case: Florida, i960.—In late 1958 the United
    States Department of Justice received information that prisoners in
    Florida’s Raiford Prison were being subjected to brutal and inhuman
    punishment, often for minor infractions. A number of white guards
    were implicated. Victims included both whites and Negroes. Some
    suffered serious injuries; one apparently died from them. The victims’
    stories were essentially similar, and were corroborated by prison guards,
    by members of the medical staff, by chaplains, and by other prisoners
    who had not been mistreated.52
    A State administrative hearing lasted one day and resulted in the
    discharge of two head guards by order of the Governor. The decision
    as to whether a State criminal action should be instituted was left to
    the local prosecutor. He did not prosecute.
    Following indictments by a Federal grand jury for conspiracy to
    violate the constitutional rights of the prisoners,53 the case was brought
    to trial on June 27, i960, before Judge Bryan Simpson in the United
    States District Court for the Southern District of Florida. In support
    of the charges against the 14 defendants the United States produced 60
    witnesses and 100 exhibits.
    At the trial James Donald Brown, a 21-year-old Negro inmate of
    Raiford Prison made allegations typical of those made by other prisoners.
    He said that he had been caught with a pencil (a minor violation) and
    informed by a prison lieutenant, one of the defendants, that he was going
    to be shackled to the bars of a cell as punishment. His testimony
    continued: 54
    A. I started to resist from being handcuffed to the bar and he
    hit me with a blackjack.
    * „ * *
    Q. Did they complete chaining you at any time?
    A. Yes, they chained me.
    Q. In what position were you chained?
    A. I was sitting down with my legs up on the bar and my hands
    up on the bar sitting down on the floor nude.
    15
    Q. How long did you remain in that position?
    A. About 41 hours . . .
    * * *
    A. After I had been chained . . . [the officers] shot water on
    me, and poured salt on me.
    * * *
    Q. What did he do with the hose?
    A. Shot water all down on my privates, all in my face and all
    over my body.
    * * *
    Q. How was the nozzle adjusted?
    A. It was pretty powerful.
    Then, Brown continued, after 2 or 3 hours, one of the guards gave him
    another hose “treatment” under the direction of the prison lieutenant.55
    Later he was chained to the bars again for several hours.56
    Before the defense offered any evidence, Judge Simpson took the case
    from the jury and directed a verdict for the defendants. The gist of his
    ruling was that while there was evidence that these acts might have
    taken place; there was not sufficient evidence to show that the guards
    had intended to violate the constitutional rights of the prisoners—an
    intent necessary for conviction under the 94-year-old Federal statute
    involved. The judge observed that: 57
    If the sole issue here had ever been whether the guards had mistreated
    or brutalized the prisoners, certainly I would have to hold
    that the Government had made a case which should be answered by
    these defendants . . . [T]hat was not and never has been the
    issue.
    The third degree and coercion of confessions
    In 1931 the Wickersham Commission stated: “the third degree—that
    is, the use of physical brutality, or other forms of cruelty, to obtain involuntary
    confessions or admissions—is widespread.”58 Five years
    later, in the historic case of Brown v. Mississippi, based upon the tortureinduced
    confessions of three Negroes to a murder, the Supreme Court
    ruled that the due process clause of the 14th amendment prohibits convictions
    based on coerced confessions. As Chief Justice Hughes put
    it, “The rack and torture chamber may not be substituted for the witness
    stand.” 59
    While it is permissible under certain circumstances for an officer to
    interrogate a criminal suspect, policemen have no general authority to
    compel even those obviously guilty of the most heinous crimes to answer
    their questions—a safeguard deemed essential to the preservation of
    American freedom.80 Moreover, an arrest in theory must be based on
    some incriminating evidence, and the function of detention after arrest
    is not to isolate a suspect for questioning but rather to make certain that
    he will appear for trial. In every State, by statute or common law,
    an arrested person has the right to go before a judge or other judicial
    officer within a short time after his arrest so that the reasons for his
    detention may be determined.61 Yet, policemen sometimes disregard
    this right and illegally detain suspects solely for questioning.62 It is
    during such periods of illegal detention that many confessions are
    coerced.63
    In the 25 years since Brown v. Mississippi, the Supreme Court has reversed
    21 convictions based on coerced confessions.64 These cases came
    from all parts of the country. In at least 12 of them the victims were
    Negroes. Lower Federal courts, as well as State courts, have struck
    down or prevented many other convictions where confessions were unlawfully
    obtained.
    This study is concerned with physical, not psychological, coercion.
    Yet “coercion can be mental as well as physical,” the Supreme Court
    recently observed, “and the blood of the accused is not the only hallmark
    of an unconstitutional inquisition.” 65 It is noteworthy that, with two
    exceptions,66 all Supreme Court confession cases since 1942 have involved
    psychological coercion alone.67
    When sources other than Supreme Court cases are considered, however,
    evidence is found which indicates that some policemen still resort
    to physical force to obtain confessions. The Commission’s Alabama Advisory
    Committee, for example, reported allegations that some policemen
    in that State secure confessions from suspects by violence.68
    Somewhat less recent evidence of the use of brutality in connection with
    the third degree is found in two successful prosecutions under the Federal
    Civil Rights Acts during the late 1950’s. One of the convictions 69
    occurred in October 1957—the defendant being the Chief of Police of
    North Las Vegas, Nevada—and the other,70 in February 1958—the
    defendant being the Chief of Police of La Porte, Texas. It does not
    appear that the victims in either case were minority group members.71
    Complaints of brutality and the third degree also appeared in a recent
    study based partly on interviews in 1957 and 195g with 359 prisoners
    in northern prisons.72 All of these men were interviewed under approximately
    the same conditions. Not 1 of the 24 who had been arrested
    by the FBI alleged that violence in any form had been used against
    him.73 Many of the State (New Jersey) prisoners, however, claimed
    that State or local officers had mistreated them, or threatened to do so,
    for the purpose of coercing confessions. Both Negro and white prisoners
    made such charges; no significant difference between the stories of the
    two groups was apparent.74
    17
    It is often said that prisoners make such complaints to support spurious
    claims of innocence. But of the 180 New Jersey prisoners who at the
    time of the interviews admitted their guilt, 23.9 percent (43) claimed
    to have been threatened, while 27.8 percent (50) claimed that they had
    been physically mistreated. In the overwhelming majority of these incidents,
    apparently, the purpose was to secure confessions. It can hardly
    be argued that these claims in largely anonymous interviews were made
    to “prove” the innocence of men who admitted their guilt.
    One prisoner had been arrested a few years ago for a serious crime by
    the Paterson, New Jersey police. When first arrested he maintained
    his innocence, but, now convicted and in prison, he admitted in a
    questionnaire that he was guilty. He had signed a written confession,
    and explained that he had done so: 75
    Because I was beat and not fed. And they had witnesses. My
    partner signed first. And they beat me for further information.
    And I just reached my breaking point. And finally got fed up
    with the whole thing. And I also thought I would get off ... A
    lot of guys get beat. And everyone has a breaking [point] or mostly
    everyone. They should be protected. The guilty as well as the
    innocent.
    Initial contact and arrest
    A police officer complains of police brutality to himself: Detroit, i960.—
    Jesse Ray, a Negro, had been an officer in the Detroit Police Department
    for 13 years. He resigned on June 25, i960—several months before he
    gave this sworn testimony at the Commission’s Detroit hearing on
    December 15, i960.76
    ... I, myself, personally have experienced two assaults by police
    officers. The facts in both incidents happening to me are very
    similar to the things that I have learned are happening to other
    Negro citizens. In both cases there was no reason for the officer to
    hit me or punish me or to take the law in his own hands. In both
    cases the attitude of the officers of the department, that is, the
    superior officers, was to protect the policeman instead of trying to
    find out actually what happened and prevent future brutality. In
    both cases the officers claimed that there was some provocation,
    which there wasn’t.
    The first incident that occurred to me was in 1955. I went to
    a house on a routine gambling investigation and knocked at the
    rear door. [Mr. Ray was on vice squad duty but in plainclothes.]
    As I knocked at the door, the lady turned the light out. I knocked
    and remained on the porch for a few minutes and started down the
    18
    steps. When I got to the last step, the lights were turned on again.
    I turned to see why and the [white] police officer charged down the
    steps and proceeded to whip me with his pistol.
    This was the alleged reaction of Ray’s superiors to this incident: 77
    I was then taken to the fifth precinct where statements were made,
    and the sergeant, my sergeant, and the police sergeant at the precinct
    asked me to cooperate with the organization, that it was an
    unfortunate thing but they didn’t want any adverse criticism and
    they would appreciate my cooperation. Being a member of the
    organization, I agreed to cooperate. At that time I was confined to
    Receiving Hospital for about five days. About a year and a half
    later some blood clots developed in my eye, and I went back to the
    hospital, and this was diagnosed as a ruptured blood vessel in my
    eye causing these clots from the blow I had received. The doctors
    told me this was something I would have to learn to live with, which
    I am trying to do . . .
    The second incident occurred on November 13, i960, after he had
    resigned from the force. Ray testified: 78
    I was stopped by two officers, two white officers, who ordered my car
    pulled over to the curb. One of the officers snatched my door open,
    after calling me a name that I really shouldn’t use, unless—
    Chairman Hannah: Go ahead.
    Mr. Ray: He called me a black son-of-a-bitch and ordered me to
    the curb. I pulled over to the curb and he opened my door and
    ordered me out of the car. I got out of my car and told the officers
    to take it easy; I had been beaten by them once before. The officer
    then pushed me against my car and stepped back and reached for
    his blackjack. When he did this, I pushed him back in an effort
    to try to explain what I meant. He proceeded to hit me on the head.
    The other officer, his partner, hit me on the head, and then a third
    officer came up behind me and choked me, cut my wind off, and the
    two other officers beat me to the ground, and then took my arms
    and twisted them around behind me and handcuffed me and put
    me in the scout car.
    While I was in the scout car I asked the officers if they would
    mind getting my hat out of the street. They had knocked my hat
    off just before. One of the officers told me to shut my so-and-so
    mouth, and during this time he hit me in stomach with his fist.
    Taken first to the 13th precinct, Ray was later transferred to Receiving
    Hospital. Although he was identified as a retired police officer, the
    police shackled him to the hospital bed all night. He was denied a
    19
    request to call his lawyer, he said, but managed secretly to get a message
    to him.70
    At his later trial on a charge of reckless driving, Ray’s defense was
    that the charge was laid against him only as a cover for the senseless
    brutality of the officers. He explained that he blew his horn at the
    officers in a friendly greeting as he drove by their parked cruiser. In his
    opinion, the policemen thought he was a “wise guy,” chiding them for
    being double parked which is a violation of the law in Detroit. The
    officers ordered him over to the curb in order to reprimand him, he
    reasoned at his trial. When he protested—“Take it easy . . .”—the
    officers simply started to beat him. Mr. Ray further alleged that he was
    not driving recklessly and had never had a traffic ticket in his life—even
    during the years when he was not a policeman. The jury rendered a
    verdict of acquittal on the charge of reckless driving.
    Another former Detroit patrolman, Joynal Muthleb, also gave eyewitness
    testimony regarding brutality to Negroes at the Detroit Hearings.
    8* After he had testified, the following exchange between Muthleb
    and Chairman Hannah took place: 81
    Chairman Hannah: The cases you enumerate in your statement
    are cases where you feel strong or violent treatment was not
    necessary?
    Mr. Muthleb: Not necessary, because in all of these cases the
    prisoners were handcuffed, with their hands behind their back, you
    see, and after you effect an arrest there’s no need to hit a person.
    Search, seizure, and violence: Chicago, 1958.—The Supreme Court
    of the United States decided the case of Monroe v. Pape 82 on February
    20, 1961. Although this decision did not finally dispose of the case,
    it did permit the plaintiff to sue several Chicago police officers for violation
    of the F ederal Civil Rights Acts on the basis of a complaint which
    alleged that: 83
    . . . [O]n October 29, 1958, at 5145 a.m., thirteen Chicago police
    officers led by Deputy Chief of Detectives Pape, broke through two
    doors of the Monroe apartment, woke the Monroe couple with
    flashlights, and forced them at gunpoint to leave their bed and
    stand naked in the center of the living room; that the officers roused
    the six Monroe children and herded them into the living room; that
    Detective Pape struck Mr. Monroe several times with his flashlight,
    calling him “nigger” and “black boy”; that another officer pushed
    Mrs. Monroe; that other officers hit and kicked several of the
    children and pushed them to the floor; that the police ransacked
    every room, throwing clothing from closets to the floor, dumping
    drawers, ripping mattress covers; that Mr. Monroe was then taken
    20
    to the police station and detained on “open” charges for ten hours,
    during which time he was interrogated about a murder and exhibited
    in lineups; that he was not brought before a magistrate,
    although numerous magistrate’s courts were accessible; that he was
    not advised of his procedural rights; that he was not permitted to
    call his family or an attorney; that he was subsequently released
    without criminal charges having been filed against him.
    The killing of a Negro in Cleveland: 1959.—On September 5, 1959,
    policeman “A”, 23 years of age, was on motorcycle duty in Cleveland,
    Ohio.84 He claimed that a Negro motorist, whom he was chasing
    for erratic driving, twice tried to run him down. Later “A” caught up
    with the man—Jeffrey Perkins—just as the latter stopped in front of
    his own home. With his pistol in his hand, “A” ordered Perkins to get
    out of the car because he was under arrest. “I told you to stop,” he
    yelled. “A” claims that Perkins then reached toward the glove compartment
    as though he were attempting to get a weapon. “A” reacted
    to this by shooting Perkins dead on the spot. The victim was 25 years
    old, a laborer, veteran of army service, married, and the father of four
    small children.
    Eyewitnesses told reporters a story which differed from the account of
    the police officer. Several of them claimed that Perkins had both hands
    on the steering wheel when he was shot. Such a statement was made
    by Mrs. Eloise Goodwin, who also alleged: 85
    When I saw his car pull up I ran out and asked him if he would
    take my three-year-old daughter, who had cut her finger, to the
    hospital. I was standing right next to the door on the driver’s side.
    Before Jeff could answer, I saw the policeman. He didn’t say a
    word, then I heard the gun go off. I yelled: “Why did you kill
    him?”
    The policeman said: “He’s not dead. He tried to run me over
    twice.”
    Upon investigation, the glove compartment was found to be empty.
    A small, unopened pen knife lay on the floor of Perkins’ car. It was
    beneath the driver’s seat—the glove compartment was on the other side
    of the automobile.
    No State or local action was taken against “A”. Chief Story of
    the Cleveland Police Department said, “We still feel Patrolman “A”
    was right and in the circumstances could have done nothing else but
    what he did.” 86 On April 25, 1961, the Justice Department requested a
    Federal grand jury in Cleveland to return an indictment for violation of
    one of the Civil Rights Acts (18 U.S.C. sec. 242). The grand jury
    refused to do so.
    599614—61—8 21
    The shooting of a Negro in Alabama: i960.—The following are excerpts
    from a statement by Theotis Crymes, an Alabama Negro: 87
    I am a veteran. I served in the Armed Forces of the U.S. for six
    years. I have a wife and three small children. But after having
    been shot in the back by an officer, I have been paralyzed for life,
    and am now confined to a wheelchair. I tell my story in the hope
    that somewhere in America something can be done to help me and
    other victims of injustice.
    On the night of March 19, i960 I was driving home from Bessemer,
    Alabama to Montevallo, a distance of about 20 miles. I was
    driving about 60 miles an hour. A friend and neighbor, James
    Morrow was with me. When we passed through Helena, Alabama,
    I noticed a car some distance behind us, but paid no attention.
    After driving about four miles further, this car caught up
    with me and bumped into my car from behind, almost knocking my
    car off the highway. I pulled over and stopped. The other car
    stopped right behind me, a red light flashing on the top. It was
    not flashing when it was following me and when it hit me.
    I got out of my car and an officer came after me and would have
    struck me with his gun, but I threw up my hands to keep from being
    struck. I asked what this was all about, and what I had done.
    He then asked if I had any whiskey in my car and I told him no.
    He made me put my hands up on his car, and he began to search
    me. And while I was standing with my hands up on his car, he
    shot me in the back, paralyzing me from the waist down. My
    friend, James Morrow, had gotten out of my car on the same side
    where we were standing. But a white man in plain clothes who was
    with the officer, got out and pointed a carbine rifle at him and made
    him get back into the car. I had fallen on my back in the highway.
    I looked up at the officer and asked why he shot me down like this.
    He only said “Shut up, Nigger.”
    The officer who shot Crymes was the Chief of Police of Helena,
    Alabama. After an FBI investigation the Department of Justice authorized
    a Civil Rights Act prosecution.38 A Federal grand jury in Alabama
    returned an indictment. At his trial the Police Chief claimed
    that Crymes advanced on him with a knife and that he shot the Negro
    in self-defense. Crymes denied this. This trial jury acquitted the
    police chief.
    This case presented an important related problem. Being a veteran
    and now disabled, Crymes applied to the Veterans Administration for a
    pension. His application was rejected because, according to the Montgomery
    office of the Veterans Administration, Crymes’ disability was
    22
    the result of his “own willful misconduct.” 89 This action was taken
    before it was known that a Federal grand jury had found sufficient evidence
    to warrant indictment of the Police Chief.90 Subsequently, the
    claim was reviewed; a field investigation was ordered; and the pension
    awarded because the “Montgomery Regional Office . . . determined
    that Mr. Crymes was innocent of willful misconduct in the shooting
    incident resulting in his severe permanent injuries.” 91
    Excessive counterforce in Philadelphia: ig6o.—On June 23, i960,
    two police officers of the Philadelphia Police Department responded
    to a call for assistance from Mrs. Eugene Hutchins. She claimed
    that during the course of an argument her husband had cut her with
    a knife. When the officers attempted to arrest Hutchins, a Negro,
    violence erupted. He filed an undue force complaint against the officers
    with the Philadelphia Police Advisory Board which heard and decided
    the case.82
    Hutchins admitted that when one officer approached him, he
    punched the officer on the head. The Negro claimed that the officer
    then knocked him down with his nightstick, handcuffed him, and, while
    he was lying on the ground in no position to resist, both officers beat
    him with their clubs and a blackjack. According to the Board report, an
    eyewitness, Mrs. Morris Fedder, “testified that she asked the policeman
    to stop beating Mr. Hutchins. [The other officer] answered her with
    profanity and chased her away,” she said. The report of the Board
    also stated that “Three other witnesses testified that the policemen beat
    the complainant while he was lying on the ground with his hands handcuffed
    behind him.” In their testimony the officers claimed that only
    the force necessary to subdue the victim was used.
    The Advisory Board decided that the officers “were guilty of using
    unnecessary force in making the arrest,” recommended a 7-day suspension
    for both officers, and said: 93
    The Board recognizes and appreciates the problems that confront
    the police officer when he is placed in the position of having to use
    force in order to make an arrest, but this does not give the police
    officers a license to indulge in the use of club and blackjack past the
    point of resistance.
    From the complaints and reports reviewed by the Commission it
    appears that there are more incidents in this category—police brutality
    occurring in the moments of initial contact between the police officer
    and the victim—than in any other. In such cases it is perhaps even
    more difficult than in the others that have been described, to come to a
    firm, incontrovertible conclusion in each instance as to who was at fault.
    The guilty criminal may claim to have been brutalized in order to avoid
    punishment. The police officer who has in fact used unlawful force
    23
    will generally claim that the victim resisted arrest. And in cases where
    the use of some force was proper, it is often difficult to determine after
    the fact, upon the basis of conflicting stories, just how much force was
    necessary; how much, illegal. It is clear, nevertheless, that in the tense
    moment of initial contact between a policeman and a person he suspects
    of a crime, some officers react to a nonexistent threat, or respond to force
    with a force that is out of proportion to the need.
    The attitude and character of the officer—his background, training,
    intelligence, confidence, ability to articulate, and his feelings toward
    minority groups—are crucial. When an intelligent and confident policeman
    wants to prevent serious violence he can almost always do so. This
    is supported by many reports to the Commission.04 Former Detroit
    policeman Joynal Muthleb, for example, pointed out that,03
    ... in my io years on the job I don’t think or can’t recall ever
    striking a man or having to. I have wrestled with them; I have
    restrained them, but I have never struck a man with a blackjack
    ... I feel that the initital approach that an officer uses with
    any citizen is very important, because you can certainly effect an
    arrest in a lot of cases without having to use physical violence.
    Other police officers of all ranks have related similar stories to this
    Commission and its representatives. They have told of incidents in
    which they feared they would have to use force, but managed to talk
    the suspect out of resistance, or somehow calmed him down, so that
    chance eruptions did not occur. Such conduct rarely attracts public
    notice—perhaps because it isn’t “newsworthy.”
    Not all officials have this attitude. Jesse Ray stated in sworn
    testimony: 06
    In my conversations with officers during the time I was on the
    force I found that many officers feel you have to be rough to be
    effective. They feel toward the Negro that you have to keep them
    down or they’ll get out of hand. I remember one case in particular.
    I remember the lieutenant said—it was a course in human rights
    that they had at the various precincts—in fact, in all the precincts—
    and one of the officers remonstrated that he would rather
    write statements [explaining why he had used violence on a suspect]
    than end up in a hospital ... It seems to be the contention
    of most of the officers that to be effective you must hit first before
    you get hit.
    Prejudice and the desire for respect also play a part. A policeman
    who “hates” a particular minority group has a built-in motive for treating
    its members with special severity. There is evidence that some
    officers do look upon Negroes, for example, with distrust and prejudice.
    24
    Such was the conclusion of a study of the attitudes of policemen in the
    northern city of Philadelphia.97
    The element of respect may be involved because many policemen
    expect it in a high degree from everyone, but especially from members
    of minority groups. Indeed, some policemen seem to view lack of respect
    in and of itself as sufficient justification for violence.98 There are
    reports that some policemen in the South have used violence when a
    Negro responded to a question simply by a “No” or “Yes” without the
    addition of a “Sir.” 99
    Unlawful police violence, then, occurs in varying circumstances, in
    varying degrees for varying reasons. The cases, however, have several
    traits in common. The facts are frequently difficult to determine; witnesses
    are few; the victim and the officer usually tell conflicting stories.
    The victims are usually the poor and powerless. Often they are members
    of minority groups (whether because prejudice is involved, or because
    such minorities are predominantly poor). The alleged perpetrators
    of the violence are seldom punished. State and local officials,
    if not actually hindered from effective investigation, as in the Screws
    case,100 often take a defensive or protective attitude toward their subordinates
    who may have erred.101 As will be shown in succeeding chapters,
    102 present Federal laws offer little protection against police violence.
    POLICE BRUTALITY AND THE CONSTITUTION
    In whatever category they may fall most instances of unlawful police
    violence involve the deprivation of rights guaranteed by the Federal
    Constitution. Police brutality is ordinarily treated as a violation of due
    process.103 Like other matters involving constitutional rights, however,
    such misconduct may involve not only denials of due process but of
    equal protection as well. It is upon the latter, of course, that the Commission’s
    jurisdiction depends.104 The extent to which the two constitutional
    provisions overlap depends in part upon the way the equal
    protection clause is interpreted. In a narrow view, the latter prohibits
    only deliberate discrimination against a person on the basis of his membership
    in a racial or other minority group.105 Thus, for instance, it
    would apply only to brutality directed against a Negro because he is a
    Negro. A broader interpretation would apply the equal protection
    provision in any case where a person is deliberately denied the enjoyment
    of a right (such as the right to be protected from physical harm while in
    the custody of the police)108 that is commonly afforded others in like
    circumstances.107 This view would make it applicable to instances of
    police brutality where there was in fact improper treatment, whether or
    25
    not it was deliberately directed against the victim on account of his
    minority status. Thus as a practical matter, under this view, every act
    of police brutality would appear to constitute a denial of equal protection,
    since the police do not in fact brutalize all persons whom they arrest or
    hold in custody. As a matter of policy the Commission’s studies are
    confined to cases involving members of minority groups—so that they
    fall far short of the outer limits of the broader interpretation.
    EXTENT AND EFFECTS
    The Commission’s studies indicate that police brutality in the United
    States today is a serious 108 and continuing problem in many parts of the
    country. Whether in the country as a whole it is increasing or decreasing
    is not clear. There seems to have been no marked overall
    abatement in recent years, although improvements have been reported
    in particular areas—such as Atlanta and Chicago.109
    The most comprehensive statistics available on police brutality were
    compiled by Commission staff members from complaints that have come
    to the attention of the Department of Justice. These statistics, presented
    in the accompanying table, do not include all cases of alleged
    police brutality that occurred during the period in question, for as
    indicated below,110 not all incidents come to the attention of the Department.
    The Department, nonetheless, receives notice of more such incidents
    than any other agency. Of course, not all the complaints that are
    received are valid by any means.111 Yet they do provide at least a rough
    measure of the outlines of the problem.
    Table i .—Allegations of police brutality by race of victim
    (Matters received by the Department of Justice, January i, 1958, to June
    30, i960)
    Total
    Negro and
    other *minority White Unknown
    National totals....................... 1,328 461 5O6 361
    Percent Percent Percent Percent
    IOO 35 38 27
    Northern and Western
    States.................................. 433 117 193 123
    Percent Percent Percent Percent
    IOO 27 44.6 28. 4
    Southern States..................... 895 .344 313 238
    Percent Percent Percent Percent
    IOO 38.4 35 26. 6
    * Includes 24 cases of other minority group victims: Indian, 12; Mexican, 10; Mixed,
    1; and other, 1.
    26
    The statistics suggest that Negroes feel the brunt of official brutality
    proportionately more than any other group in American society. As
    Table i shows, among the complaints of police brutality received by the
    Department in the two and one half year period ending June 30, i960,
    the alleged victims were Negroes (who constitute approximately 10 percent
    of the total population) in 35 percent of the cases and whites in
    38 percent of the cases; in 27 percent of the cases the race of the victim
    was unknown.
    In terms of regions, approximately two out of every three complaints
    over the last few years (as seen in Table 1), and probably over the last
    20 years,112 originated in the 17 Southern States and the District of
    Columbia. This may indicate that police brutality is more prevalent in
    the South than in other regions of the country. But this is by no means
    certain, for these statistics may be evidence merely of a greater tendency
    of non-southern victims to complain to local rather than to Federal
    authorities.
    A review of the cases and complaints from all sources suggests that
    brutality is largely confined to State and local police or prison forces.
    Several Department of Justice officials stated that while complaints do
    come in against Federal civilian police officers or prison guards, they
    are quite rare. The Wickersham Commission in 1931 also found that
    police brutality is almost exclusively confined to State and local
    agencies.113
    Illegal violence by officers of the law casts a cloud of suspicion over
    the entire system of American justice. It violates highly valued constitutional
    rights, and may produce a pervading fear regarding the security
    of the person. Brutality against a few Negroes may cause many of them
    to distrust all police officers. This is unfortunate not only for Negroes
    but also for the police and the entire community. Criminal investigations
    rely to a great extent on information supplied by private persons.
    The job of crime control becomes vastly more difficult when a whole
    segment of the community is wary of any contact with the police. Mr.
    Willis Ward, a former assistant county prosecutor, testified regarding
    the relationship between Negro distrust of the police and the problems
    of crime solution at the Commission’s Detroit Hearing:114
    It is sad that there are four crimes currently in the papers today,
    heinous crimes, involving murder and robbery, and from what we
    read in the paper it would appear that the suspects are colored
    citizens. It would appear that perhaps in this city the people most
    apt to know who did it might be colored people, but the thing that
    shudders me is: As much as the good colored people as well as the
    white people want criminals apprehended and brought to justice,
    that if a person knows or has reason to believe it would help us to
    27
    locate these culprits the chances are, 99 chances out of a hundred,
    if he complains he will be treated more as a suspect than as a citizen
    attempting to reduce crime in the city of Detroit.
    SUMMARY
    Police brutality—the unnecessary use of violence to enforce the mores
    of segregation, to punish, and to coerce confessions—is a serious problem
    in the United States. Much of it occurs when an ill-trained or prejudiced
    policeman first comes in contact with a suspect. Yet, most
    policemen have demonstrated that it is possible to perform their duties
    effectively without resorting to unlawful violence which creates suspicions
    about the fairness of the American system of criminal justice.
    28
    3. “Private” Violence
    One charged with the duty of keeping the peace cannot be an innocent
    bystander where the constitutionally protected rights of
    persons are being invaded. He must stand on the side of law and
    order or be counted among the mob.1
    6.
    These words, written by a Federal Circuit Judge almost io years ago,
    constitute a lucid statement of the major premise underlying this section
    of the Commission’s study. The problem involved is a limited one.
    For only those acts of private racial violence which involved “denials of
    equal protection of the laws” are within the Commission’s jurisdiction.2
    Accordingly, the Commission is concerned exclusively with “private”
    violence that has some direct or indirect governmental sanction—as when
    policemen intentionally fail to protect a person from mob attack;3 when
    they fail to take proper steps to protect prisoners in their custody from private
    violence;4 or when they connive in private misconduct by failure to
    arrest its perpetrators.5 And since all such recent cases that have come to
    the Commission’s attention involve Negroes, this chapter is concerned
    with governmentally sanctioned private violence directed against them.
    It is difficult to determine the extent of denials of equal protection
    involving police derelictions. But the Commission is of the opinion
    that, in contrast to police brutality, police complicity in private violence
    has declined sharply in recent years. More police officers than ever
    before apparently are doing everything in their power to prevent racial
    violence, and when it occurs, to arrest the assailants.6 But the recent
    fate of the “Freedom Riders” in Alabama shows that the problem is
    still with us.
    ALABAMA: 1961
    The violence in Alabama was prompted by the appearance of two small
    groups of white and Negro bus passengers, styling themselves “Freedom
    Riders.” Sponsored by the Congress of Racial Equality, the trip’s an-
    29
    nounced purpose was to challenge racial segregation in interstate bus
    travel. Leaving Washington on May 4, 1961, as a single unit, the group
    rode through Virginia, the Carolinas, and Georgia with no major difficulties.
    In Atlanta, it split into two sections for the Alabama leg of the
    trip. One section boarded a Greyhound bus, the other a Trailways bus,
    and on May 14, both departed Atlanta for Birmingham. As the groups
    left, the United States Department of Justice alerted Birmingham police
    to information of planned violence against the “Freedom Riders” when
    they reached that city.7
    Indeed, the fact that violence might occur was well known, but the
    police of Birmingham did not take steps to prevent it. C.B.S. News
    correspondent Howard K. Smith, who was in Birmingham, received
    a telephone call from one Edward Fields on Saturday, May 13, and
    was told that when the “Freedom Riders” came to Birmingham, “the
    Klan would be out in force and I would see action.” 8
    Smith went to the Greyhound bus terminal in Birmingham the next
    day and waited for 4 hours with a crowd of other reporters and photographers.
    All of them expected trouble. A local reporter identified
    sport-shirted men gathered there as “Klansmen minus their robes.” Police
    Commissioner Eugene Connor reportedly was in his office during
    much of this time. When the Trailways bus came in at another terminal
    several blocks away, the expected violence took place. After 10 or 15
    minutes, the Klansmen jumped into waiting cars and left. Smith stated
    that, “The police, though nearby, had disappeared from the streets. A
    minute or so after the hoodlums had dispersed, as if on agreed signal,
    the police suddenly appeared. But no marauders were around, and
    no arrests were then made.” 9
    On the day after the “Freedom Riders” were beaten the Birmingham
    News wrote that, “the City of Birmingham is normally a peaceful,
    orderly place in which people are safe.” 10 The report then continued,
    “Harrison Salisbury of The New York Times last year came to Birmingham
    and wrote two articles about us which said, in substance, that ‘fear
    and hatred’ stalked our streets.” The News, which previously had denied
    this charge, wrote: “But yesterday, Sunday, May 14, was a day which
    ought to be burned into Birmingham’s conscience. Fear and hatred
    did stalk Birmingham’s streets yesterday.” 11
    As for the Police Commissioner and Birmingham’s policemen, the
    prosegregationist News wrote: 12
    This newspaper supported Eugene Connor for police commissioner
    . . . * * *
    The Birmingham Police Department under Mr. Connor did not do
    what could have been done Sunday.
    ♦ * *
    30
    The people—and their police—permitted . . . fear and hate to
    ride our streets. * * *
    Today many are asking “Where were the police?”
    Birmingham Police Commissioner Eugene Connor made a statement
    on the same day: 13
    I regret very much this incident had to happen in Birmingham.
    I have said for the last 20 years that these out-of-town meddlers were
    going to cause bloodshed if they kept meddling in the South’s
    business. * * *
    It happened on a Sunday, Mother’s Day, when we try to let off as
    many of our policemen as possible so they can spend Mother’s Day
    at home with their families.
    We got the police to the bus station as quick as we possibly could.
    Before the Trailways bus reached Birmingham and violence, a mob of
    white men and women met the Greyhound bus 60 miles away in Anniston.
    Police at the scene did not stop the crowd from smashing windows
    and slashing tires.14 The bus stopped on the road 6 miles outside
    of Anniston when its tires went flat. It was quickly surrounded by the
    mob which followed from the town. An incendiary device was thrown
    through a window and set the bus afire. The passengers managed to
    get off the bus. None were killed, but 12 were admitted to the hospital
    because of smoke inhalation. One State highway patrol investigator
    who was on the bus prevented further violence.
    On Wednesday, May 17, Governor Patterson declared, “We can’t act
    as nursemaids to agitators. They’ll stay home when they learn nobody
    is there to protect them.” 15 The Montgomery Advertiser commented: 16
    In short, the Governor of Alabama has told the cockeyed world
    that Alabama on occasion is to be converted into a lawless arena
    that might even include murder on the card.
    On May 20 another group of “Freedom Riders” was attacked and
    brutally mauled by a mob of white men and women, this time in Montgomery,
    the State capital. One of those attacked and knocked unconscious
    was John Siegenthaler, Administrative Assistant to Attorney
    General Robert Kennedy and President Kennedy’s personal representative
    in this situation. Siegenthaler had driven near the scene in a
    private car. It was reported to the Commission that as Mr. Siegenthaler
    was lying unconscious in the middle of the street several white men
    kicked him and one yelled, “We got us an FBI man.” 17 The police re-
    31
    action to the violence is summed up in this excerpt from an order subsequently
    issued by Frank M. Johnson, Jr., a Federal District Judge in
    Alabama: 18
    This Court . . . finds that on May 20, 1961, it was a matter of
    public knowledge in Montgomery, Alabama, and was known to the
    Montgomery Police Department in Montgomery, Alabama, that a
    Greyhound bus carrying a group of white and Negro college
    students . . . was en route from Birmingham to Montgomery. . . .
    This Court further finds that a Montgomery Police Department
    officer, Detective Shows, stated to a reporter for the Montgomery
    Advertiser on the morning of May 20 that the Montgomery police
    “would not lift a finger to protect” this group.
    This finding of fact was included in an order issued on June 2, 1961,
    which also stated that the Ku Klux Klan had actually carried out the
    violence. Both the Klan and the Montgomery Police Department—as
    well as the “Freedom Riders”—were temporarily restrained from interfering
    with travel in interstate commerce. In addition, the judge made
    this statement: “The failure of the defendant law enforcement officers
    to enforce the law in this case clearly amounts to unlawful state action
    in violation of the Equal Protection Clause of the Fourteenth
    Amendment.” 19
    Although the Federal judge found that the Montgomery police had
    been adequately warned, Commissioner L. B. Sullivan stated shortly
    after the violence that his officers had been caught off guard. The Commissioner
    reportedly explained that this happened “because we didn’t
    have definite information that they were coming here.” He added,
    “Providing police protection for agitators is not our policy but we would
    have been ready if we had had definite and positive information they
    were coming.” 20
    Following the outbreak on May 20, President Kennedy issued this
    statement: 21
    The situation which has developed in Alabama is a source of the
    deepest concern to me as it must be to the vast majority of the
    citizens of Alabama and all America. I have instructed the Justice
    Department to take all necessary steps based on their investigation
    and information.
    I call upon the governor and other responsible state officials in
    Alabama as well as the mayors of Birmingham and Montgomery
    to exercise their lawful authority to prevent any further outbreaks
    of violence.
    I would also hope that any person, whether a citizen of Alabama
    or a visitor there, would refrain from any action which would in
    any way tend to cause further outbreaks.
    3*
    I hope that state and local officials in Alabama will meet their
    responsibilities.
    The United States government intends to meet its.
    The Department of Justice ordered United States Marshals into Montgomery.
    Governor Patterson of Alabama declared “qualified martial
    law” 22 and sent National Guard troops to the city.
    On the night of May 21 a mob of white men and women rioted
    outside a church where Negroes held a mass meeting to discuss the
    racial situation in Alabama. The mob set one car afire, stoned others.
    It dispersed only under pressure of the combined forces of U.S. Marshals,
    State, and local police and National Guard troops.23
    ALABAMA: 1954-61
    Many people were shocked to learn that this kind of violence—only
    briefly summarized here—could happen in a country dedicated to the
    rule of law. But since the Supreme Court desegregation decisions and
    increasingly urgent demands by Negroes for full equality, tension and
    violence have increased in some parts of the country. Negro demands
    have been almost entirely peaceful. The reaction of those white people
    opposed to desegregation and equality has been in large measure peaceful
    ; in part, violent.
    Most of this violence has had neither active nor passive police support.
    Moreover, there is evidence that most policemen try diligently to prevent
    violence and that they actively oppose such extremist groups as the Ku
    Klux Klan.24 But responsible Alabama citizens have charged that some
    policemen in the State seem at times to be in collusion with the Klan,
    or are members of it.25 And from the facts found by Judge Johnson
    regarding the nonaction of the Montgomery Police Department on
    May 20, 1961, it is possible to infer official collusion with the Klan.
    Descriptions of cases in which there were allegations of police connivance
    in violence follow. These occurred within recent years in Montgomery
    and in the Birmingham-Bessemer region. The cases demonstrate that
    limited though the problem may be, it has profound implications for
    the security of the individual person.
    The first sit-in protest against segregation reached Alabama’s State
    Capitol on February 25, i960. On Saturday, February 27 it was reported,
    a group of 25 white men went through the downtown streets
    of Montgomery swinging toy baseball bats, and one of them attacked a
    middle-aged Negro woman. Allegedly, “the police made no arrests, al-
    33
    though a news photograph of the episode, and the bat-swinging man,
    was taken.” 26 Two days later Governor Patterson declared: “There are
    not enough police officers in the United States to prevent riots and
    protect everybody if they continue to provoke [the white people] on that
    matter.” 27
    Sunday, March 6, i960, at 2 p.m. was the time announced by Negro
    leaders for another protest meeting on the State Capitol steps. The
    Negroes gathered in front of the Dexter Avenue Baptist Church near
    the Capitol. They were led by Reverend Ralph D. Abernathy, president
    of the Montgomery Improvement Association. Montgomery city
    policemen were out in force. A crowd of perhaps 5,000 whites formed
    on the Capitol lawn. When 2 o’clock came and the Negroes did not
    move, it was reported,28 a police captain shouted toward them: “Can’t
    you tell the time? It’s 2 o’clock. Somebody loan ’em a watch.”
    When some of the Negroes started to move forward, cries of “Let them
    come!” came from the white crowd. The police stopped the Negroes,
    but not the whites—some of whom attacked the Negroes, forcing them
    to flee. The police escorted the Negro leaders back toward the church.
    After the Negroes had gone inside the police dispersed the white crowd.
    A southerner by birth and residence later commented: 29
    The white crowd was used to intimidate the Negroes. It was not
    until the whites had met the Negroes at arms’ length, fought with
    them, and turned them back, that the police turned the whites back.
    Birmingham, Alabama, is approximately 100 miles north of Montgomery.
    When Montgomery was the capital of the Confederacy and
    when Atlanta was burned, Birmingham did not exist. Its history has
    included a number of bloody incidents—some of the worst during the
    drives to organize unions in the 1930’s.30 In these and earlier incidents
    the element of race was partly involved.31 By the early 1950’s, however,
    industrial peace and lessening racial tension led some people to believe
    that a permanent break had been achieved in the unhappy tradition of
    violence. Interracial meetings were held to deal with racial problems;
    and an unsuccessful attempt was made to put Negroes on the police
    force.32
    With the second School Desegregation Decision on May 31, 1955,
    racism and violence revived in Birmingham. Interracial organizations
    and meetings were suppressed.33 In 1956 the NAACP was forced to
    close its doors in Alabama.34 Racial tension increased throughout the
    State. Acts of violence increased also. From 1956 to 1961 at least 20
    violent acts were publicly reported in Birmingham alone, including allegations
    of racially-motivated beatings, bombings, and one castration.35
    On September 13, 1956, John Kasper, the vocal segregationist from New
    York City, reportedly told 500 persons, including robed Klansmen, at a
    White Citizens’ Council rally in Birmingham: 38
    34
    We need all the rabble rousers we can get. ... We want trouble
    and we want it everywhere we can get it.
    On March 6, 1957, a Negro leader, Reverend Fred L. Shuttlesworth,
    and his wife, entered the Birmingham railroad station, purchased tickets
    and sat down in the white waiting room. A white man, Lamar Weaver,
    sat beside the Shuttlesworths until Birmingham police forced him to
    leave the terminal because he had no train ticket. According to a white
    eyewitness interviewed by Commission representatives,37 the city police
    officers escorted Weaver through a mob of white men outside the station,
    but when they had reached its fringes, the policemen walked away. The
    mob, allegedly including identified Klansmen, then attacked Weaver but
    he managed to get to his car in a nearby parking lot. A group of about
    a dozen white men stoned the car, rocked it, and attempted to lift its
    wheels from the pavement so it could not move. But Weaver succeeded
    in driving away. The Birmingham police did not prevent this attack.
    Nor did they arrest any of Weaver’s attackers. But they did charge him
    with a traffic violation because he drove through a red light as he made
    his escape from the parking lot. He was fined $25 plus costs. Shortly
    after this incident, Weaver moved from the State.
    In September 1957, a white mob attacked Reverend Shuttlesworth
    on the grounds of the all-white Phillips High School. Nearby police
    officers rescued Reverend Shuttlesworth, but not until he had been
    severely beaten. “This mob had chains, brass knuckles, sticks and
    other things, in front of Phillips High School . . . when we went down
    and tried to enroll the children,” said Reverend Shuttlesworth.38 Later
    that day the mob allegedly roamed the area and hurled stones at cars
    driven by Negroes. Birmingham policemen patrolled near the mob,
    but did not disperse it.39 The police did arrest three white men for the
    beating of Reverend Shuttlesworth, but the Jefferson County Grand
    Jury subsequently refused to indict them.40
    During 1957 the voters of Birmingham replaced Police Commissioner
    Robert Lindbergh, a moderate on racial problems, with the present
    Police Commissioner, Eugene Connor. Commissioner Connor conducted
    a campaign openly appealing to racial feelings. A speech he
    gave at Selma, Alabama, in April i960 sets forth Commissioner Connor’s
    position on racial problems: 41
    The truth is, ladies and gentlemen—they [Negroes] don’t want
    racial equality at all. The Negroes want black supremacy.
    Yes, we are on the one-yard line. Our backs are to the wall. Do
    we let them go over for a touchdown or do we raise the confederate
    flag as did our forefathers and tell them, “You shall not
    pass!”
    35
    Acts of violence continued into 1958, 1959, and i960.42 When the
    Commission conducted a field study in the spring of 1961 regarding
    violence and the administration of justice in Birmingham, three out of
    four persons interviewed insisted upon complete anonymity. These included
    all of the 14 white persons interviewed: businessmen, lawyers,
    and other professional people. The field report stated, “The very reluctance
    of these persons to be quoted is the clearest documentation of
    the climate of fear and the conspiracy of silence that exist in
    Birmingham.” 43
    In an anonymous interview one local white businessman deplored the
    lack of “open discussion of race problems” and the fact that interracial
    meetings to seek peaceful solutions to these problems have been “harrassed
    by the police.” 44 A white attorney stated flatly, “There is no
    forum for moderates.” 45 A prominent Negro citizen said, “Those who
    would create violence get encouragement from city, county, and State
    officials of the highest ranks.” “Statements of local officials predicting
    bloodshed,” he continued, “appear to be the signal to act, for within a
    day or two after such predictions, a bombing would occur.” 46 The city
    was described as “a powder keg” by a white attorney.47 It was the conclusion
    of the Commission field report, written approximately 3 weeks
    before the attacks on the “Freedom Riders” in May of 1961, that: 48
    Racial prejudices are incredibly tense in Birmingham. Until local
    leaders make a concerted effort to control those feelings, the slightest
    provocation can be expected to unleash acts of violence as
    ugly and as frightening as any that Birmingham has seen in its . . .
    history.
    There have been reports of private racial violence in other towns of
    the Birmingham region. On the day after the “Freedom Riders” were
    beaten in Montgomery, the Birmingham News wrote in a front page editorial
    that: 49
    We, the people, have let gangs of vicious men ride this state now
    for months. They have been riding in Tuscaloosa, in Talladega,
    in Sylacauga, in a dozen other fine towns and communities.
    There is evidence that the police do not always take a serious view of
    their responsibilities in these situations. For example, the Police Chief
    of Sylacauga, in response to a reporter’s question regarding a flogging
    on May 13, 1961, stated that it “doesn’t appear to be much.” Said
    the reporter in his dispatch to the Birmingham News:50
    This, generally, has been police reaction over the past two years
    during a time when floggings, intimidations and threatening telephone
    calls have become commonplace in Sylacauga.
    36
    An earlier incident involving charges of police misconduct, occurred
    on June 25, 1959, in Bessemer—13 miles from Birmingham and approximately
    60 miles from Sylacauga. The victims were Asbury Howard,
    a Negro union leader, and his son, Asbury Howard, Jr.51 A later report
    from Bessemer alleged police involvement in another mob attack on
    March 12, i960.52 This was a nighttime assault on a Negro family. An
    FBI investigation did not discover the attackers.53 A month before the
    “Freedom Riders” were attacked in Birmingham a young Negro boy
    drowned in nearby Midfield, Alabama. The drowning and the events
    that followed allegedly produced doubts among Negroes regarding the
    attitude of local authorities toward impartial investigation—and it also
    produced great fear in the Negro community.54
    JACKSONVILLE: 1960
    On Saturday, August 27, i960, there were a series of attacks by white
    men on Negroes in Jacksonville, Fla. This soon developed into a race
    riot which continued for several days. For some weeks prior to the
    outbreaks, Mayor Haydon Burns explained to a Commission representative,
    55 members of the NAACP Youth Council had staged peaceful sit-in
    demonstrations in downtown Jacksonville. On Friday, August 26,
    Mayor Burns (who is also the Police Commissioner) received reports
    that violent white attacks might take place on the next day. He so
    informed the Chief of Police at midnight on August 26. Both the Mayor
    and the Chief of Police arrived at police headquarters at 6:45 the next
    morning. They went before the squads going on duty at 8 a.m. and
    apprised them of the situation. According to the Mayor, the policemen
    were told to concern themselves only with preserving the peace—that as
    long as they could do so they were not to make any wholesale arrests.
    Several eyewitnesses stated that at approximately 8 a.m., August 27,
    they saw a group of white men milling about in Hemming Park, which
    is in downtown Jacksonville. Some had axe handles and baseball bats
    in their hands and 2 white men were seen cutting the wire from around
    a bundle containing perhaps 50 new axe handles. These were passed
    out to the waiting crowd. At approximately 9:30 a.m., the mob
    marched in a column of two’s toward the nearby downtown stores.
    Most carried axe handles or baseball bats over their shoulders militarystyle.
    Some had Confederate battle flags attached to their weapons.
    When they found Negroes they proceeded to attack them with the clubs.
    This had all the earmarks of a carefully planned assault. At the
    beginning it was not a race riot but an attack by violent white men on
    599614—61----- 4 37
    peaceful Negroes, many of whom had nothing to do with the sit-in
    demonstrations. Negro witnesses were of the opinion that many of the
    assailants had come into the city expressly for this attack.50
    Jacksonville policemen observed the apparently disciplined group
    forming in Hemming Park. They saw the axe handles being passed out.
    They watched as the crowd marched toward the stores and the Negroes.
    Only when the white men began attacking Negroes did some policemen
    intervene.
    Even after the mob attacked, according to several eyewitnesses, not
    all of the policemen attempted to control it. An officer directing traffic
    allegedly looked on while whites beat a Negro teenage boy near the corner
    of Hogan and Duval Streets. Instead of helping the boy, he talked and
    laughed with a white man who was armed with an axe handle. This
    was one of several similar incidents reported.57
    Chief of Police Luther Reynolds explained that there were too many
    armed white men—approximately 60—for the few policemen present to
    disarm and control and that police reserves did not arrive in time to
    prevent the violence. In this regard the Commission field report states: 58
    In order to get the police version of the incident a conference was
    had with Luther A. Reynolds, Chief of Police; Horace V. (Tiny)
    Branch, Assistant Chief of Police; W. L. Bates, Inspector of Police;
    and Detective Sergeants Orra Brimm and C. A. Porter.
    Their version was practically the same as that reported by the
    Mayor with the following exception—the Mayor had stated that
    when he and the police arrived on the scene they found a group of
    60 or more white men armed with axe handles, baseball bats, etc.,
    and upon the arrival of reserves they proceeded to disarm the
    whites. Chief Reynolds was asked why they did not disarm the
    whites immediately upon arrival and he stated that when they arrived
    on the scene they saw only one or two of these instruments—
    the host of others being brought into display at a later time. He
    advised that when the police saw all of them they attempted to disarm
    the whites but there were too many of them to be taken within
    a few minutes before they were brought into play against the
    Negroes.
    A Negro minister reported that when he saw the white men assembling
    in the park, he asked the three policemen on duty to take the clubs away
    so as to prevent violence. He said they refused to do so but advised
    him to call the Chief of Police. When the minister did so about 9 a.m.,
    he was reportedly told that the situation was well in hand.
    A white reporter informed the Commission that a uniformed police
    lieutenant made a frantic call to headquarters in the presence of newsmen
    “and begged whomever it was he talked to for permission to stop
    the incipient trouble.” The lieutenant was said to have “told the person
    38
    on the other end of the wire he was well aware that his request was almost
    insubordination, but that unless they did something about it the
    newsmen would blast the whole police force for not taking some affirmative
    action.” 59 This conversation allegedly took place at approximately
    11 a.m., at least 2 hours after the mob began assembling in Hemming
    Park.
    Negro witnesses made charges that some Jacksonville policemen were
    brutal to members of their race during this affair.60 It was also alleged
    that some policemen occupied themselves primarily with arresting as
    many Negroes as they could, including victims of the attacks.61 Shortly
    after the riots were over, the Tampa Tribune editorialized:62
    The constitutional right to peaceable assembly does not include
    sanction for guns, knives, baseball bats or axe handles at the gathering.
    Whether the decision to wait so long was theirs or Mayor
    Burns’, Jacksonville’s police by delaying to head off an ugly incident
    gave their city and all Florida a black eye . . .
    The Commission field report, based on an extensive investigation,
    came to the “conclusion that the Mayor and members of the Police
    Department did not take all the preventive measures they could
    have [taken] to avoid the attack on the Negroes by the white men.” 63
    VIOLENCE IN THE NORTH: CHICAGO, 1953-60
    No section of the Nation has a monopoly on racial violence. In the
    North and West the breeding places for discord have been the cities
    where large concentrations of Negroes and whites are in direct competition
    for employment and housing. Following mass Negro migrations,
    racial tension erupted in Detroit, Los Angeles, New York, and in other
    cities during the early 1940’s, causing severe loss of life and property
    damage. A study published by the International City Managers’ Association
    reported that, “In both the Los Angeles and Detroit riots the
    minority peoples involved were convinced that they could not depend
    upon the respective police departments for protection.” 64 Despite the
    progress in police control of mob situations, in recent years there have
    also been claims of police passivity or other involvement in such
    situations.
    The now famous Trumbull Park Housing Project riots started in July
    1953, in the South Deering section of Chicago. As soon as Negro
    families began moving into the previously all-white project the residents
    of the neighborhood started rioting. During the next 4 years whites
    39
    committed numerous acts of violence against the few Negroes in the
    project. Negro tenants had to travel to and from their homes under
    police guard. On some occasions 1,200 policemen were assigned to
    cover the housing project area during the course of a 24-hour period.65
    Criticism was leveled at the police for laxity.66 On numerous occasions,
    it was alleged, the police allowed crowds to form when their prompt
    dispersal might have prevented violence. While some policemen acted
    vigorously, there were persistent reports that whites attacked Negroes
    in full view of white officers who did nothing.
    On April 5, 1954, for instance, it was reported that a Negro police
    officer attempted to arrest a man who had just thrown a piece of
    steel at a Negro’s window in the project. When the man resisted, the
    officer struck him on the forehead with his nightstick. The man got
    away when three women from a gathering mob attacked the Negro
    policeman. It was reported that white policemen nearby did not assist
    the officer, nor did they attempt to arrest the man or the three female
    assailants.67
    Another such incident allegedly occurred on April 17, 1954. Two
    Negro women and a small boy drove through the Trumbull Park project
    and were met with a vicious mob assault. Bricks and bottles were thrown
    at the Negroes’ car, and it was purposely hemmed in by drivers of two
    other cars. The women escaped injury only by smashing the car in
    front out of the way. They did not report this incident to the Chicago
    Police Department they said, since the stoning occurred in full view of
    several policemen who did nothing to protect them.68 Negroes complained
    that the only time the police took vigorous action was when a
    Negro appeared ready to retaliate.69 One Negro claimed that a white
    policeman said he wasn’t there “to protect us but to protect the
    grounds.” 70 A Negro officer, who was present during these disturbances,
    was of the opinion that 75 aggressively led policemen could have
    “cleared up” the matter in a few days.71 Other responsible Chicago citizens
    share these sentiments.72
    In the summer of 1957, rioting began again near the South Deering
    area. This time the issue was the use of Calumet Park by Negroes.
    The police did not prevent crowds numbering several thousand persons
    from gathering outside the park on consecutive Sundays; from throwing
    rocks at Negro motorists; or from attacking Negro pedestrians.73 For
    several weeks the situation was tense and hundreds of police were required
    to keep it from getting worse. Again the police were criticized
    for passivity toward the violence—for their refusal to disperse crowds
    before they became mobs.74 It was claimed that policemen on the
    scene continually refused to arrest white hoodlums who attacked
    Negroes.75 After strong protests from civic groups, two Park District
    policemen were suspended for brief periods.76
    Since these disturbances, there has been evidence of more effective
    riot control practices on the part of Chicago policemen. For example,
    40
    another incident took place when a Negro family bought a house on
    West Jackson Boulevard in the summer of 1959. Crowds gathered;
    rocks were thrown; and threatening telephone calls made. The police
    acted promptly and effectively, cordoning off the area for two blocks
    around the house. Loud speakers were used by the police to inform the
    crowds that either they would disperse or face arrest under a State antiriot
    statute. Within a short time numerous arrests were made, and the
    crowds disappeared. The courts held the arrested persons under high
    bond. Many were found guilty and fined the maximum amount, $500,
    allowed by the statute. Within a few days no more incidents were reported
    from the area.77
    Two minor disturbances occurred during the summer of i960. One
    was at a beach, the other in a city park. Both were prompted by Negroes
    using swimming facilities.78 In each case, however, vigorous work by
    teams of racially integrated police coupled with arrests and heavy fines
    kept the situation under control.79
    In the summer of 1961 new instances of interracial violence erupted in
    Chicago. Although there was criticism of police action in a few situations,
    80 it was generally conceded that the Chicago Police Department
    took vigorous action to quell trouble. Therefore, when Mississippi Congressman
    John Bell Williams asked the Department of Justice if it intended
    to dispatch Federal marshals to Chicago as it had to Alabama in
    May,81 the reply was that this would not be done because local officials
    were taking the necessary action.82
    THE LYNCHING OF MACK PARKER
    Mack Charles Parker, a Negro, was accused in April 1959 of raping a
    white woman in Poplarville, Miss. He was placed in the Pearl River
    County jail at Poplarville pending trial. Shortly before this happened,
    the United States Court of Appeals for the Fifth Circuit had set aside
    the conviction of another Negro, Robert Lee Goldsby, on grounds that
    members of his race had been excluded illegally from the Mississippi jury
    that tried him.83 On the night of April 24, 1959, a group of white men
    took Parker from the jail, shot him twice, and dropped his body into the
    Pearl River.84 In the opinion of many, including Mississippi Attorney
    General Joe T. Patterson,85 there was a connection between the Goldsby
    decision and the Parker lynching. Some people in Pearl River County
    apparently felt that if Parker were convicted, a Federal court might void
    his conviction also—for the same reason.
    41
    Shortly after the lynching, the then Governor of Mississippi, James P.
    Coleman, was quoted by the Associated Press as saying:86
    The violators will be prosecuted according to law. Any killing in
    premeditation is murder in Mississippi, under any circumstances,
    and we will prosecute one as such.
    * * *
    The people of Mississippi as a whole do not approve of taking the
    law into their own hands . . .
    The Federal Bureau of Investigation offered its cooperation to the
    Governor in the case. The FBI not only identified many of the members
    of the lynch mob but also secured admissions from some of them.87
    When the Pearl River County grand jury met that fall, however, the
    county prosecutor refused to read the FBI report to the jury, saying it
    could be considered only hearsay evidence.88 In charging the jury, Circuit
    Judge Sebe Dale told them they were like soldiers battling “for the
    preservation of our freedom and way of life and for the welfare of our
    people.” He continued: 89
    We should have the backbone to stand against any tyranny, even
    including the board of sociology, sitting in Washington, garbed in
    judicial robes, and dishing out the legal precedents of Gunnar
    Myrdal.
    Although the Department of Justice brought the case to the attention
    of a Federal grand jury in January i960, the jury found no violation
    of Federal law and returned no indictment. The Federal grand jury
    had the benefit of the FBI report. The Department of Justice has not
    closed the case.90 According to a dispatch of United Press International,
    datelined Poplarville:91
    The killers, whose identities are well known to local citizens, still
    live in this area, where most of them do farm work.
    There is evidence that the lynching took place with the cooperation of a
    jail official who had the duty to protect Parker.92
    Mack Charles Parker was the last person known to have been lynched
    in the United States. According to statistics compiled by the Tuskegee
    Institute,93 Parker was the 538th Negro lynched in Mississippi since
    1883, the 3,441st in the country. The statistics show that 85 percent
    of all lynchings have taken place in 17 Southern States. Mississippi leads
    the list with a total of 578; in addition to the 538 Negroes, there have
    been 40 white victims. In many cases of lynching there have been allegations
    that officers of the law were in connivance with the mob.
    Fortunately, however, lynchings are becoming rare today, so rare
    that the Tuskegee Institute has ceased issuing annual reports regarding
    them.
    EXTENT AND EFFECTS
    Police connivance in lynching or in milder forms of private violence is
    less frequent now than in the past. Yet it lives on in the memory of
    thousands of Negroes and reenforces the deep fear that “lightning”
    may strike again. For many Negroes this raises a question of profound
    importance: When it strikes, will the police help me or will they help
    the mob?
    Because so many policemen everywhere in the country fight mob
    violence, surely the usual answer is that the policemen will help the
    victim. But history, combined with a realistic appreciation of the
    present shortcomings of some policemen, produces suspicion and fear.
    When individuals are troubled by fears of this nature, they find it difficult
    to turn to the police. The following incident is illustrative.04 In
    the late 1950’s a member of the Commission’s Alabama Advisory Committee
    was awakened in the middle of the night by a telephone call from
    a Negro woman who lived nearby. “Somebody just threw a bomb and
    took off the side of our house. What shall I do?” The Committee
    member replied, “Call the police right away and get them out there!”
    The woman said:
    I can’t call the police. It might have been the police that threw
    the bomb. If they find out we’re not dead, they might come back
    and throw another bomb.
    The point is not that police officers threw the bomb, but that the instinctive
    reaction of one American citizen was they might have had
    some connection with the attack.
    On the basis of incidents like this one, and those reported in this and
    in the previous chapter, this Commission must report that Negro citizens
    in some places today live in fear of violence—accompanied by fearsome
    doubts regarding police integrity on race problems. It has seen this
    fear in the attitudes of Negroes it has interviewed; in their unwillingness
    to testify before the Commission—often in their unwillingness even to
    speak to Commission representatives. The same fear sometimes prevents
    the citizen from seeking redress from the Federal Government for
    violation of his rights. This fear is often without foundation any
    longer—but it exists.
    43
    Racial violence, especially with police connivance, has even broader
    effects. A few weeks after the attacks on the “Freedom Riders,” Attorney
    General Robert Kennedy pointed out that the violence in Alabama
    had harmed the reputation of Alabama, Birmingham, Montgomery,
    and the United States throughout the world.95 He also offered
    his audience, 70 local police officers graduating from the FBI Academy,
    some advice and a statement of hope:96
    You and I, and all our fellow law-enforcement officers, have
    sworn to uphold the law. And we have a duty to enforce the law
    and to protect the rights guaranteed by our Constitution.
    It is our job to enforce the law, and there is only one way we
    can do it and remain true to our oath. That is, to enforce the law
    vigorously, without regional bias or political slant.
    * * *
    I hope that out of the tragic events in Alabama there will not
    again arise in this country of ours a time when local law-enforcement
    officers will not do their duty to preserve law and order, no
    matter how unpleasant the job.
    SUMMARY
    Most policemen deplore mob violence, and when it occurs, try to arrest
    the assailants. But there are exceptions. In certain areas of the Deep
    South some policemen have recently connived in mob violence. This
    official involvement in mob violence constitutes a denial of equal protection
    of the laws and is subject to the penalties prescribed by the Federal
    Civil Rights Acts. In concert with previously instilled suspicions,
    it also has the effect of perpetuating deep fears among many Negroes
    that should violence strike, the police will side with the mob. No American
    citizen should have to live with such fears.
    44
    4. Federal Criminal Sanctions
    THE STATUTES
    Three months after Bobby Hall was fatally beaten in the town square
    of Newton, Ga.,1 the Department of Justice presented its case before a
    Federal grand jury in Macon and obtained an indictment against Sheriff
    Claude Screws, his deputy, and a town police officer. The statute under
    which they were indicted was an obscure, 70-year-old piece of Reconstruction
    legislation.2 This chapter will examine the effectiveness of
    that and related statutes—the criminal Civil Rights Acts—as remedies
    for wrongs of the sort that Bobby Hall suffered. It will show the serious
    difficulties involved in the enforcement of these laws.
    Violence under color of law
    The principal Federal criminal sanction against police brutality and
    private racial violence is section 242 of the U.S. Criminal Code. It
    provides, in part: 3
    Whoever, under color of any law, statute, ordinance, regulation, or
    custom, willfully subjects, or causes to be subjected, any inhabitant
    of any State, Territory, or District to the deprivation of any rights,
    privileges, or immunities secured or protected by the Constitution
    and laws of the United States . . . shall be fined not more than
    $1,000, or imprisoned not more than one year, or both.
    Before the establishment of the Civil Rights Section in the Criminal
    Division of the Department of Justice in 1939, the Federal Government
    used section 242 only twice 4—once in 1882 5 and once in 1911.6
    Section 242 proved to be a weak instrument for bringing the slayers
    of Bobby Hall to justice. Sheriff Claude Screws and his codefendants
    were charged with violating and with conspiring to violate 7 section 242.
    The jury returned a verdict of guilty, but on appeal the U.S. Supreme
    Court reversed the convictions.8 The Court pointed out that to con-
    45
    vict, the jury had “to find that petitioners had the purpose to deprive
    the prisoner of a constitutional right.” 9 Because of the difficulty of
    proving a specific “purpose,” this interpretation severely limited the usefulness
    of section 242 as a means of combating police brutality. When
    Screws was again brought to trial, he was acquitted.
    Under section 242 the Government must establish three propositions
    before it can obtain a conviction.
    First, the Government must prove that the defendant acted “under
    color of . . . law”; that is, that the defendant’s actions were in some
    way official, as opposed to merely private acts. Under the 14th amendment,
    the Federal Government has no power to punish private acts of
    violence—that power is reserved to the States.10
    But action “under color of law” is a broad notion. A State official
    can violate a Federal, State, or local law, and still be acting under color
    of law.11 A private citizen, if he aids or abets a State or local official
    in an act of police brutality, is acting under color of law.12 And even
    inaction of State officials, when there is an intentional failure to exercise
    an affirmative legal duty,13 falls within the meaning of section 242.
    To take a case in point—on the night of April 2, 1949, Sheriff John
    William Lynch of Dade County, Ga., together with three of his deputies,
    met a group of robed Ku Klux Klan members at Hooker Hill, a Negro
    settlement. Sheriff Lynch and his men looked on while the Klansmen
    forced seven Negro men into automobiles. When one of the Negroes
    called to the sheriff for protection, Lynch turned his back and walked
    away. The Klansmen then drove a short distance, stopped, took the
    Negroes from the cars and beat them. Later that night the Klansmen
    and Sheriff Lynch and his deputies met and mingled in the county seat
    of Trenton. At no time were any of the Klan members arrested. Indictments
    were subsequently returned against the four officers and a
    number of the Klansmen, who were not officers. Evidence was introduced
    that Sheriff Lynch and his deputies had received notice of, and
    had been attending, Klan meetings prior to the incident. The jury acquitted
    all but two of the defendants. Sheriff Lynch and one of his
    deputies were found guilty of violating section 242.
    Even though Sheriff Lynch and his deputy were not present at the
    beatings, the U.S. Court of Appeals for the Fifth Circuit affirmed a district
    court finding that the beatings had occurred under color of law.14
    And although the nonofficer Klansmen were acquitted by the jury, the
    district court suggested that the jury could have found them equally
    guilty as principals under section 242.15 The fact that Lynch and his
    deputy had refused to fulfill the duties of their offices as required by
    State law did not prevent their conviction, for the same nonfeasance
    which violated State law also violated the Constitution—and hence section
    242.
    46
    Second, the Government must establish that the defendant deprived
    the victim of one of his “rights, privileges, or immunities secured or protected
    by the Constitution and laws of the United States.” The Supreme
    Court has noted: 16
    Those who decide to take the law into their own hands and act
    as prosecutor, jury, judge and executioner plainly act to deprive
    a prisoner of the trial which due process of law guarantees him.
    Courts have held that summary punishment17 and coercion to force a
    confession 18 are violations of the due process clause of the 14th amendment.
    The same clause also guarantees a fair trial.19
    Moreover, some courts have treated police brutality as a denial of the
    equal protection of the laws, which is guaranteed by the 14th amendment.
    20 A police officer who beats an individual because he is a member
    of a racial minority clearly denies him equal protection.21 However,
    as noted previously,22 racial discrimination is not the only discrimination
    forbidden by the equal protection clause. A Federal circuit court of
    appeals has observed:23
    Persons under arrest are entitled equally with other persons under
    arrest to a trial by due process, and when found guilty, they are
    subject to the same punishment. A person unlawfully beaten by
    an arresting officer is denied the right of due process of law and
    also the right of equal protection of the laws.
    Similarly, private racial violence, when it occurs with the approval or
    connivance of law enforcement officials, deprives the victims of their
    right to the equal protection of the laws.24
    Third, the Government must prove beyond a reasonable doubt that
    the defendant had the specific intention of depriving the victim of one
    of his Federal rights. From the viewpoint of the prosecution, this is the
    most troublesome requirement. The Screws decision warrants careful
    analysis because the element of specific intent in section 242 had its
    genesis in that decision, when the Supreme Court construed the word
    “willfully” to mean “with specific intent.” 25
    In his appeal to the Supreme Court, Screws argued that he had been
    convicted under an unconstitutional statute in that section 242 did not
    provide an ascertainable standard of guilt.26 The basic evil in a criminal
    statute that lacks such a standard is, as the Court noted:27
    . . . the essential injustice to the accused of placing him on trial for
    an offense, the nature of which the statute does not define and
    hence of which it gives no warning.
    47
    Screws’ argument was a particularly serious challenge, because section
    242 forbids the willful deprivation of such 14th amendment rights as
    the right to due process of law; and the right to due process of law comprises
    a vast body of law, which 28—
    ... is not always reducible to specific rules, is expressible only
    in general terms, and turns many times on the facts of a particular
    case.
    Moreover, definitions of constitutional rights are hammered out slowly
    over the years, frequently in closely divided Supreme Court decisions.29
    How could an ascertainable standard of guilt be found in a statute that
    purports to punish for denials of such vague and often undefined rights?
    This was the problem that concerned the Court. If section 242 were
    to be held constitutional—and the Court expressed a strong desire that
    it should 30—such an ascertainable standard had to be discovered.
    The Court found such a standard in the world “willfully.” 31 Observing
    that in 1909 Congress had inserted that term into section 242
    to make the statute “less severe,” 32 the Court decided that “willfully”
    could be construed to require “a specific intent to deprive a person of a
    Federal right made definite by decision or other rule of law.” 33 So
    interpreted, the specificity lacking in the wording of the statute would,
    in effect, be supplied by the criminal purpose of the violator himself.
    As the Court explained: 34
    . . . where the punishment imposed is only for an act knowingly
    done with the purpose of doing that which the statute prohibits, the
    accused cannot be said to suffer from lack of warning or knowledge
    that the act which he does is a violation of law.
    Furthermore, as the Court pointed out, the violator would have ample
    knowledge of what conduct was prohibited by the statute 35—
    . . . wilfull violators of constitutional requirements, which have
    been defined, certainly are in no position to say that they had no
    adequate advance notice that they would be visited with punishment.
    When they act wilfully in the sense in which we use the
    word, they act in open defiance or in reckless disregard of a constitutional
    requirement which has been made specific and definite.
    When they are convicted for so acting, they are not punished for
    violating an unknowable something.
    Thus, the Court held, in effect, that to violate section 242, the accused
    must have (1) a certain knowledge and (2) a certain purpose. On the
    one hand, the Court required that the accused know, or should know
    (because the matter is knowable),36 that his victim has a particular
    48
    defined constitutional right; on the other hand, the Court stated that the
    accused must act either “in open defiance or in reckless disregard” of that
    particular constitutional right.
    The latter requirement—that is, the element of purpose—dealt with
    the problem of the unintentional or well-motivated deprivation of
    rights. Although the Court made only passing references to this problem,
    37 it was nonetheless a genuine difficulty in the application of section
    242. An unintentional deprivation, for example, could be committed
    by a policeman who, though fully aware of the defined constitutional
    rights of the person he is arresting, must make a conscious
    “on-the-spot” decision as to how much physical force is required to effect
    the arrest. Such judgments often are hard to make. To require an
    exact balance of force with force, with no allowance for honest error,
    would render law enforcement difficult indeed. Closely allied is the
    problem of the officer who in good faith uses physical violence which
    is necessary to enforce an apparently valid statute that is later held to
    be unconstitutional.38 The doctrine of specific intent enunciated in
    Screws absolves the individual who acts in good faith or who commits
    honest mistakes.
    Conceivably, this problem of the unintentional or well-motivated deprivation
    of rights could have been relieved by something less than
    specific intent—namely, by a requirement of general bad purpose, or
    general (rather than specific) criminal intent. The distinction between
    general and specific intent, though a fine one, can have significant consequences.
    An officer may have the requisite intent to justify a State
    prosecution for assault and battery or murder, but, at the same time,
    lack the specific intent to violate the constitutional rights protected by
    section 242.39 For instance, it appears to follow from Screws that the
    police officer who in a momentary fit of anger beats or kills a person in
    his custody may not be subject to punishment under section 242. In
    that case the requisite specific intent to deprive the victim of the right
    in question may not be present, although a general criminal intent
    might.
    Thus the Screws requirement of specific intent means that some knowing
    deprivations of constitutional rights go unpunished under section
    242. It does, however, provide protection for those who act in good
    faith by assuring that in each case the violator had fair warning that
    he was depriving his victim of a constitutional right. Thus no officer
    will be “sent to the penitentiary if [i.e., merely because] he does an act
    which some court later holds deprives a person of due process of law”
    or of any other constitutional right under section 242.40 This construction
    kept section 242 well within the area of constitutionality. Yet the
    Court acknowledged that the statute could be broader without violating
    the Constitution, for it noted that if Congress wished to give “wider
    scope” to section 242, it could “find ways of doing so.” 41
    49
    In summary, then, the Supreme Court in Screws was concerned primarily
    with the problem of the clarity of the standard of guilt under
    section 242. That problem arose from the nebulous language of the
    law itself. The Court upheld the statute by construing the word “willfully”
    to mean with “a specific intent to deprive a person of a Federal
    right made definite by decision or other rule of law.” 42 The Court
    carefully pointed out that it was not necessary that the violators “have
    been thinking in constitutional terms,” 43 so long as “their aim was not
    to enforce local laws but to deprive a citizen of a right, and that right
    was protected by the Constitution.” 44 The Court further explained
    that specific intent “need not be expressed; it may at times be reasonably
    inferred from all the circumstances” of the action,45 such as “the
    malice of [the violators] . . ., the weapons used in the assault, its
    character and duration, the provocation, if any, and the like.” 40
    Despite the Court’s painstaking attempts to clarify the meaning of
    specific intent in section 242, confusion remains. This confusion, revealed
    in the Federal district courts’ instructions to juries, seems to stem
    from the fact that the separate but related requirements of knowledge
    and purpose are not adequately distinguished.
    Most Federal district judges in charging the jury on specific intent
    under section 242 adhere closely to the language of the Supreme Court.
    They either quote or paraphrase salient passages in the Screws opinion.
    47 While this is perhaps a safe procedure, it is not always altogether
    illuminating. For the distinction between the dual elements of
    knowledge and purpose in the requirement of specific intent appear
    only after a careful analysis of that decision.
    On the other hand, in one instruction wherein a district court ventured
    from the text of Screws,48 the jury was charged that, in order to
    convict, they must find that the defendants acted “with the specific
    knowledge that the prisoners possessed such rights,” 49 or with “knowledge
    that the specific right exists.” 50 This instruction appears to preclude
    constructive knowledge and intent; that is, that the defendants
    should have known of their victims’ constitutional rights (because those
    rights were defined and hence knowable) and that the defendant acted
    in reckless disregard of those rights.
    A review of a number of instructions given in section 242 prosecutions
    failed to uncover a single charge that spelled out clearly and unmistakably
    the requirements of actual and constructive knowledge and intent
    that are revealed by an analysis of Screws.51
    Moreover, the Civil Rights Division of the Department of Justice,
    in proposing instructions on specific intent for trial courts, has only occasionally
    urged the use of charges that clearly define the alternative
    requirement of constructive knowledge and intent. Prior to 1957, the
    Civil Rights Section of the Criminal Division commonly suggested that
    U.S. attorneys submit instructions which followed closely the more
    50
    liberal language in Screws.52 And in 1953 in a section 242 prosecution,
    the Criminal Division, although refusing to recommend an instruction
    that would have liberalized the Screws doctrine, did advise the U.S. attorney
    to request instructions that would elaborate upon the “reckless
    disregard” aspect and upon the holding in Screws that the defendant
    did not need to “have been thinking in constitutional terms” to be found
    guilty.53 In i960, a similar effort by the Civil Rights Division to obtain
    instructions on constructive intent in the Raiford case failed.54 A consistent
    Division policy of proposing jury instructions on constructive intent
    would enhance the possibility of obtaining a definitive and more liberal
    ruling on specific intent from higher courts (and notably the Supreme
    Court). The lack of such a policy in the Division appears to be due
    partially to differences of opinion among Division attorneys as to the
    meaning of the Screws doctrine on specific intent.55 At the same time,
    it must be recognized that the eventual success of this method for obtaining
    a liberalization of the rule in Screws—that is, by appeals to higher
    courts—depends upon the concurrence of a number of contingent events.
    The trial court must grant the prosecutor’s request for a liberal charge on
    constructive intent; the prosecution must succeed; the defendant must
    appeal his conviction and there allege that the instructions were erroneous
    on this point; and the higher court, if it does not address itself to the
    particular allegation of error, must at least affirm the conviction. Past
    efforts along these lines have not been encouraging.
    If the Screws doctrine of specific intent remains unclear to judges and
    attorneys, how much more confusing must it be to jurors? For it is the
    jurors who must comprehend and then apply the trial court’s instructions.
    Since those instructions are often lengthy and complex; since
    jurors are often reluctant to convict a police officer; and since jurors
    are frequently unsympathetic to section 242 prosecutions in the first
    place,56 there are unusual difficulties in securing convictions. The burden
    of proof under section 242 remains a challenge to the most imaginative
    and resourceful of prosecutors.
    When the prosecution is successful the maximum penalty is a fine
    of $1,000 and 1-year’s imprisonment for each violation. This is hardly
    a stringent sanction for police brutality or private racial violence that
    takes a life. Under most State laws such acts are serious offenses.
    Under section 242 they are merely misdemeanors. (Because of this
    fact, the Department of Justice can, if it chooses, initiate a case of police
    brutality simply by filing its charges in a written information without
    indictment from a grand jury.) 57 Nevertheless, since some Federal
    grand juries have been reluctant to indict, and some petit juries have
    been slow to convict, there is reason to believe that such juries would
    return even fewer indictments and convictions if section 242 were a
    felony statute calling for more severe punishment.58
    51
    Division attorneys, however, have found that the effectiveness of
    section 242 against unlawful official violence does not always depend
    upon its penalty provisions. In some instances prompt correction has
    resulted from admonitory letters in which the Division merely informed
    responsible officials of reported abuses and of the existence of Federal
    penalties.59 And on several occasions the presence of Federal investigators
    in an area has stimulated local officials to take remedial action.60
    But in less responsive areas, when State, local, or Federal61 authorities
    inflict unlawful violence or refuse to protect individuals from private
    violence, this statute, with all its problems, stands as the principal Federal
    sanction for the invasion of the rights guaranteed by the laws and
    the Constitution of the United States. In these situations section 242
    is indeed a slender reed.
    Conspiracies to commit violence
    Section 241 of the U.S. Criminal Code is a companion statute to
    section 242. It provides that—
    If two or more persons conspire to injure, oppress, threaten, or
    intimidate any citizen in the free exercise or enjoyment of any right
    or privilege secured to him by the Constitution or laws of the United
    States, or because of his having so exercised the same; or
    If two or more persons go in disguise on the highway, or on the
    premises of another, with intent to prevent or hinder his free exercise
    or enjoyment of any right or privilege so secured—
    They shall be fined not more than $5,000, or imprisoned not more
    than 1 o years, or both.
    On its face, section 241 appears to be of equal vigor with section 242.
    But this is not so, for despite section 241’s efficacy in protecting certain
    types of Federal rights, such as the right to vote,62 its application to unlawful
    official violence is limited.
    The Supreme Court carefully considered the applicability of this
    statute to acts of official violence in 1951.63 The Court concluded that
    section 241, unlike section 242, was never intended as a safeguard for
    those rights that are protected solely by the 14th amendment—i.e.,
    “those rights which the Constitution merely guarantees from interference
    by a State.” 64 Rather, “the principal purpose” of section 241,
    in the words of the Court, “was to reach private action.” 65 Accordingly,
    section 241 was held to protect only those rights “which Congress
    can beyond doubt constitutionally secure against interference by
    private individuals.” 66 The rights so secured are those “which arise
    from the relationship of the individual and the Federal Government” 67
    and which “flow from the substantive powers” of that government.68
    52
    Excluded from section 241’s coverage under this interpretation, are
    rights to equal protection and due process of law under the 14th amendment
    (unless, of course, the particular right involved is also granted or
    secured elsewhere in the Constitution against private interference) .69
    Thus the rights of Federal citizenship protected by section 241 include,
    among others, the following:70
    The right to pass freely from State to State . . . the right to
    petition Congress for a redress of grievances . . . the right to
    vote for national officers . . . the right to enter the public lands
    . . . the right to be protected against violence while in the lawful
    custody of a United States marshal . . . and the right to
    inform the United States authorities of violation of its laws. . . .
    It follows that section 241 is a restricted remedy for unlawful official
    violence for it applies to only a limited number of situations. First, section
    241 can be invoked (as can section 242) 71 against any such violence
    involving Federal officials, for the right to be secure from violence
    while in the custody of a Federal officer is one of those rights which an
    individual has by reason of his relationship with the National Government.
    72 Yet complaints implicating Federal officers in illegal violence
    are almost nonexistent.73 In this respect, therefore, section 241 stands
    only as a gun behind the door. But the door is rarely opened.
    Second, section 241 can also be used as a sanction for unlawful
    official violence perpetrated at any level of government when that violence
    is used as a means of depriving the victim of any one of his narrowly
    defined rights of Federal citizenship.74 (Since such violent acts
    on the part of State or local officers would constitute, at the same time,
    denials of the equal protection of the laws within the meaning of the
    14th amendment, the officers and their coconspirators would also be
    liable under sec. 242.) Thus, State or local officials who resort to
    violence to deprive persons of such rights—to take the most probable
    examples—as the right to vote or the right to be free from interference
    in interstate travel, are liable to a prosecution under section 241. On
    the basis of the Commission’s investigations it appears that official
    violence to prevent people from voting has rarely occurred in recent
    years.79 On the other hand, there have been a few recent cases of
    violent interference with interstate travel that involved State or local
    officers.78 It is in this limited area that section 241 is principally relevant
    to the Commission’s study.
    There is a broader view of section 241 which would bring within its
    coverage all of the rights found in the Federal Constitution, including,
    of course, the rights guaranteed in the 14th amendment against interference
    by the State. Thus interpreted, section 241 would afford protection
    from illegal violence at the hands of State and local officers under
    the equal protection and due process guarantees of that amendment.77
    099614—61------s 53
    In 1951 when this view was last presented to it, the Supreme Court
    was evenly divided on the issue.78 In the absence of a majority holding
    to the contrary, the narrow view prevails. A subsequent attempt by the
    Civil Rights Division in i960 to bring the issue before the Court failed.79
    Should the Supreme Court, at some future time, find that section 241
    protects the rights contained in the 14th amendment, then this statute
    might offer certain advantages over section 242 as a sanction against
    illegal violence by State officers.80 In the meantime, section 241 is rarely
    useful as a weapon against illegal official violence.
    Slavery and violence
    There are three other criminal statutes, in addition to sections 241 and
    242, that may be applied to illegal violence by officials. These laws—
    sections 1581, 1583, and 1584 of the U.S. Criminal Code—all relate
    to slavery and peonage. The three statutes have relevance to the Commission’s
    study only insofar as they can be invoked against State or Federal
    officials (and private individuals acting in concert with them) who
    have in some manner acquiesced or participated in acts of violence that
    reduced the victims to a condition of peonage or slavery. Such official
    conduct would constitute a denial of the equal protection of the laws
    (which the Commission is empowered to study) as well as a violation
    of the 13th amendment.
    There have in recent years been a few unreported suits under sections
    1583 and 1584,81 including the much-publicized Dial case, in which
    a family of farmers obtained Negro slave labor by paying the fines of
    prisoners who were then released to them.82 The Dials lived in Alabama
    close by the Mississippi border. They obtained Negro prisoners from
    Mississippi. There was ample evidence at their trial that the Dials, by
    threats and beatings, forced the Negroes to remain at their farms. At
    least one of the victims was beaten to death. Two of the Dial brothers
    were subsequently sentenced to 18 months in prison. There was, however,
    no evidence of direct official connivance in the brutality practiced
    by the Dial family.
    Section 1581 83 is directed against peonage; that is, “a status or condition
    of compulsory service based upon the indebtedness of the peon to
    the master.” 84 In a prosecution for peonage, “it is sufficient to allege
    and prove that a person is held against his will and made to work to pay
    a debt.” 85 Anyone who holds a person in, or returns him to, a condition
    of peonage, or who merely arrests a person with the intention of
    placing him in peonage, violates section 1581.
    State and local officials have been known to cooperate, unwittingly
    or not, in maintaining at least one system of peonage; it is described both
    in cases under section 1581 86 and in cases involving the 13th amendment.
    87 The usual practice in those cases was that State officials re-
    54
    leased prisoners to any private individual who would pay the prisoner’s
    fine. The prisoner was then compelled to sign an agreement to work
    out the amount of the fine for the person who had paid it. If the
    prisoner did not perform all the work that was required of him under
    the agreement, he was prosecuted under State law for fraud or deceit.
    The Supreme Court has roundly condemned these procedures and proclaimed
    the State statutes that fostered them to be unconstitutional under
    the 13th amendment.88
    Section 1583 89 and 1584 90 deal with slavery and involuntary servitude.
    There have been few reported cases under these provisions.91
    Although the Supreme Court has stated that “involuntary servitude”
    has a “larger meaning than slavery,” 92 the difference is a matter of
    degree.
    Violations of the slavery and peonage statutes appear to occur only
    rarely. Although during the 2%-year period from January 1, 1958,
    through June 30, i960, the Department of Justice received 67 complaints
    alleging that persons were being held in peonage or slavery, no
    prosecutions were brought apparently because none of those complaints
    was deemed valid. It should be noted, however, that the victims of
    peonage and involuntary servitude are even less likely than the usual
    victims of police brutality and private violence to be articulate in protesting—
    especially if local officials cooperate with their “masters.” 93
    These, then, are the Federal criminal measures dealing with police
    brutality and “private” violence. The usefulness of these five statutory
    weapons is inherently restricted; their range is short. But in the absence
    of effective State action, they are the sole criminal instruments
    now available against those two serious threats to the civil rights of the
    Nation’s citizens. The administration of these measures will now be
    examined. That task—the application of these five statutes to current
    cases of police brutality and “private” violence—is the responsibility of
    the Civil Rights Division of the U.S. Department of Justice.
    THE ENFORCEMENT OF THE STATUTES
    On February 3, 1939, Attorney General Frank Murphy created the
    first Civil Liberties Unit which was set up in the Criminal Division
    of the Department of Justice.94 This Unit was assigned the duty of administering,
    among other statutes,95 the then existing major Civil Rights
    Acts—for present purposes U.S. Criminal Code sections 241, 242, 1581,
    1583, and 1584. Later, the Unit was designated the Civil Rights Section.
    In the Civil Rights Act of 1957 96 Congress elevated the Section
    to the rank of a separate division within the Department, and by an
    55
    order of the Attorney General, dated December 9, 1957, the Civil Rights
    Division was formally established.67 The growth of the former Civil
    Rights Section was gradual; in 1953 it had eight attorneys.98 The
    Division has expanded more rapidly—from 14 attorneys in 1958 to 32
    in November i960.66
    The Commission’s study of the Civil Rights Division was carried out
    with four objectives in view: to determine how civil rights cases are
    initiated, to analyze the procedure by which such cases are developed
    and terminated, to learn of the principal problems encountered in the
    handling of the cases, and to evaluate generally the effectiveness of the
    Department of Justice in reaching a final disposition of civil rights complaints.
    100 The method employed in this study consisted of the gathering
    of statistical information from the Machine Records Unit of the
    Department of Justice; discussions of sample cases with members of
    the Division’s staff; examination of certain legal studies and memoranda
    prepared by the Division; and informal staff conferences on the Division’s
    general policies and procedures.101 The final conference, held
    on December 16, i960, between representatives of the Division and of
    this Commission, constituted a comprehensive discussion of the general
    policies, procedures, and achievements of the Civil Rights Division.102
    Unquestionably police brutality and private violence constitute distressing
    problems for the Nation. How does the Civil Rights Division
    deal with them? 103 To answer this question, it is necessary to describe
    briefly the organization of the Civil Rights Division, and to follow
    the Division’s staff, step by step, through the procedures that lead to the
    final disposition of complaints.
    Organization of the Civil Rights Division
    The Division is one of the eight major subdivisions of the Department
    of Justice. (See app. VII, chart 1.) It ranks, therefore, as an equal
    of the Criminal Division of which it once was a part. (The internal
    organization of the Division is set out in app. VII, chart 2.) The Division
    is headed by an Assistant Attorney General who is appointed by
    the President subject to the approval of the Senate.
    Operation of the Civil Rights Division
    There are four major steps in the handling of complaints—the receipt
    of notice of alleged violations; decision as to whether to order an investigation;
    investigation itself; and prosecution.
    Notice of violations.—The great majority of complaints of police
    brutality or private violence involving official action are made by
    the victim, a relative, or a witness, to an FBI agent at one of the
    Bureau’s field offices.104 The agent takes a statement from the com-
    56
    plainant and automatically forwards it to the Bureau in Washington
    which, in turn, refers it to the Civil Rights Division.
    Sometimes, however, complaints come initially to the Division, the
    Department of Justice, U.S. attorneys,106 the White House, or some
    other Federal office. Other sources of information include private civil
    liberties organizations and newspaper reports clipped by the Division’s
    Editorial Unit.106 In the majority of cases, therefore, the Division must
    rely for notice of such violations upon the general public—the greater
    part of which seems to be wholly unaware of the Federal right to be
    free from police brutality and certain types of private violence.
    These sources of information do not appear to be completely adequate.
    The principal reason for this is the apparent lack of public
    awareness of Federal rights in this area. A secondary reason appears
    to lie in the inadequacy of the Division’s sources—notably in its newspaper
    coverage and in reports by U.S. attorneys, who are the Department’s
    representatives in the field. For example, a much publicized
    series of articles following the police beating of a Negro youth in Detroit
    on September io, 1959 107—an incident witnessed by a reporter—
    did not come to the Division’s attention for over a year.108 Newspaper
    stories do not, of course, constitute legal evidence of police brutality.
    But such reports can and do provide leads for official investigations.109
    Decision to investigate.—Complaints of police brutality or of private
    violence involving official action are assigned to one of seven attorneys
    who constitute the Constitutional Rights Unit of the Division’s General
    Litigation Section. This staff attorney must first assess the merits of
    the complaint. He will then either submit a written recommendation
    that the case be closed without investigation, or he will request the FBI
    to direct its field agents to interview specific persons, ascertain the availability
    of corroborating witnesses and interview them. He will, of
    course, make such additional informational requests of the Bureau as
    he feels are necessary.
    A number of the complaints received do not, on their face, merit
    even a preliminary investigation. Such is the case, for instance, when
    the complainant charges the officer with only verbal disrespect. Other
    complaints, however, allege clear violations of Federal law. As a rule,
    these allegations are investigated.110
    In still other instances the decision to order an investigation involves
    more complex considerations. This is particularly true of unsigned
    complaints and certain newspaper reports. There are, as a matter of
    Division policy, no fixed rules for determining what constitutes an appropriate
    complaint for investigation in these less obvious cases.111 Nor is
    it likely that such rules would be feasible, for considerable flexibility is
    required in order to assess properly the unique features of each case.
    Nonetheless, there is some evidence in the Division of inflexible attitudes
    toward both newspaper reports and unsigned complaints. It
    57
    seemed to be the view of some staff members that certain newspapers
    are so inherently unreliable that their stories, regardless of content, afford
    no basis for investigation.112 Similarly, it appeared difficult for
    some of the staff to appreciate the fears behind the refusals of certain
    complainants to sign written statements of their allegations.113 While
    in the majority of cases, a refusal to sign may well vitiate the entire
    complaint,114 there is little doubt that in certain areas victims are fearful—
    and in part justifiably115—that local police will learn of their complaint
    and visit them with reprisals.118 These personal attitudes on the
    part of some Division attorneys reflect a timidity inappropriate at the
    very first stages of an investigation.117 Although such views are not
    matters of official Division policy, they may explain why certain cases
    are closed without investigation.
    The Commission learned of a case in which a Negro newspaper reported
    that neighbors, who allegedly witnessed the police beating of a
    man and his pregnant wife in Newark, N.J., had later volunteered to
    testify in a civil suit against the city. The case was closed by the Division
    in February 1959 without any investigation of the charges. It was
    explained by members of the Division’s staff that that decision had been
    dictated by the weakness of the source—a newspaper which regularly
    treats civil rights stories in a sensational manner.118 A report in another
    such newspaper of the death of a Negro as the result of an alleged beating
    by Los Angeles policemen was also closed without any investigation.
    A local coroner’s jury, by a 5-4 decision, found the death accidental.
    One of the reasons assigned for closing the case was that “no one on
    behalf of the victim made any complaint.” 119 Another case closed
    without a preliminary investigation involved the alleged police beating
    of a reputable Negro businessman in Alabama. The victim’s injuries
    required medical treatment. One factor influencing the closing of the
    case appears to have been the victim’s refusal to sign a statement regarding
    his interview.120
    The Commission’s staff learned of no case in which an investigation
    was ordered by the Division on the basis of a newspaper report or an
    unsigned complaint.
    Another type of case which raises problems in ordering investigation
    is that which State authorities are attempting to resolve locally. The
    Civil Rights Division follows an invariable policy of delaying prosecution
    in deference to State action.121 In certain respects this policy appears
    proper. It leaves the prime responsibility exactly where it belongs—
    with the States. But in most of these cases the Division does
    more than delay prosecution. It delays the investigation—provided it
    is convinced that the State is acting in good faith.122
    On balance, the practice of holding up Federal investigation pending
    the outcome of local or State proceedings is probably a good one in most
    cases. It leaves corrective action in the hands of those who are most
    58
    familiar with the local situation. It also obviates the inconvenience and
    even confusion that may result from the presence of several investigative
    agencies delving into the same case simultaneously.123
    But it is often difficult to judge immediately the character of a particular
    State action on a complaint of official brutality. And in those
    cases where State action is ineffective,124 unnecessarily protracted,125 or
    simply a “whitewash,” 126 the practice of deference can be dangerous.
    For the Division may later find a once-strong case greatly weakened, if
    not already dead.
    In one case there was a long delay after the State of New Mexico had
    brought charges against the housefather of the State Training School for
    Girls. The defendant had been accused of imposing excessive and
    arbitrary punishments upon the girls and of forcing them to engage in
    sexual activities with him. After the passage of a year and a half, the
    State dropped its charges. During that period most of the witnesses
    were discharged from the training school and thereafter could not be
    located. The Division, which had deferred to State action, was forced
    to close the case for lack of evidence.127
    A policy of completing a Federal investigation, even though the State
    is taking action, offers definite advantages. It preserves the evidence;
    it puts the Division in a better position to prompt State action and to
    act if the State’s action proves insufficient. The Division has no set
    policy governing investigations pending State action.128 Certainly no
    such rules would be suitable for every case.
    Investigation: the FBI.—The Federal Bureau of Investigation has
    the major responsibility for carrying out civil rights investigations.129 As
    previously mentioned,130 most brutality complaints are brought first to
    an FBI special agent in the field. At that point, FBI policy calls for the
    following procedure: 181
    . . . the original complainant is thoroughly interviewed and a
    written statement obtained from such an individual if possible.
    Any other witnesses readily available as well as the victim would
    also be interviewed. The complaint is immediately brought to the
    attention of the Civil Rights Division of the Department of Justice
    for a determination as to whether further action is warranted. In
    the event the Department desires investigation, the FBI field office
    is instructed to institute such investigation. Before the investigation
    commences, the responsible head of the law enforcement
    agency or institution involved is notified of the initiation of the investigation.
    These authorities are not notified upon the receipt of
    a complaint but only at the outset of an investigation.
    Sometimes, however, the actual practies of Bureau field offices appear
    to have deviated from the official procedures in regard to initial investi-
    59
    gation of complaints.132 The Commission’s staff learned of a significant
    number of cases in which the Bureau forwarded only the original complaint
    to Washington and apparently waited for the Division’s instructions
    before investigating further, even though the complaint contained
    names of local witnesses.138
    The question of investigation upon the receipt of a complaint has
    been a cause of some concern to the Federal Bureau of Investigation.
    Fifteen years ago the Bureau’s Director expressed reluctance to launch
    investigations of so many complaints involving “murders, lynchings,
    and assaults ... in which there cannot conceivably be any violation
    of a Federal statute.” 134 In 1954 Attorney General Brownell authorized
    the Bureau to conduct “preliminary investigations into all complaints
    involving possible violations” of sections 241, 242, 1581, 1583,
    and 1584 “without the necessity of prior authorization” from the Assistant
    Attorney General in charge of civil rights matters.138 This order
    was, of course, permissive, not mandatory. It has never been rescinded.
    136 The term “preliminary investigation,” according to FBI
    Director Hoover, “consists of rounding out the facts of the original complaint
    and developing sufficient information to enable the Civil Rights
    Division to make a determination as to whether or not there has been
    a violation of the statutes.” 137 There is evidence that for some years
    the FBI did conduct “a preliminary investigation immediately upon
    receipt of a complaint alleging a Federal civil rights violation.” 188 But,
    as indicated above, there are now many cases in which this practice is
    not followed. So at the present time the initiative for ordering preliminary
    investigations into civil rights complaints is largely left with
    the Civil Rights Division.189
    Failure to conduct an investigation upon receipt of a complaint of
    known witnesses or to check simple statements of fact causes unnecessary
    delays—a bare complaint frequently lacks those minimal facts required
    to determine if a violation occurred or even if there is a need for
    a preliminary investigation.140 When a Division attorney in Washington
    receives only a simple statement of charges, a series of needless and
    time-consuming procedures are usually required if the case is to be
    handled soundly. The attorney must request at least a limited investigation;
    this request must be cleared through his section chief, a higher
    Division official, and Bureau headquarters in Washington; an order must
    be dispatched to the appropriate FBI field office, and there the investigation
    must be assigned to a special agent; later the results of the investigation
    must return through the same channels.141 Certain cases
    may require the Division’s approval and direction before even limited
    inquiry is attempted—for example, when State authorities are actively
    investigating the charges.142 But with due allowance for such special
    circumstances, there are instances in which an initial limited investigation
    of facts stated and witnesses named in the complaint would
    60
    provide Division attorneys with an immediate indication of its
    weight.143 There are valid reasons for the Division’s exercise of close
    control over further investigations of complaints.144 But no such reasons
    appear for the Bureau’s field offices to channel information of the
    most meager sort to Washington, when the means for a quick initial
    verification of the allegations are at hand.
    Delays in criminal prosecutions are harmful to the accused, who is
    entitled to a speedy trial. With the passage of time, moreover, memories
    of witnesses dim 145 and the trail of evidence is obscured.148 Delays in
    criminal cases are undesirable—even more so when they are avoidable.
    It has been reported from time to time that the Bureau has little enthusiasm
    for its task of investigating complaints of police brutality.147 If
    the contention is accurate, that fact is, to some degree, understandable.
    The Director has used the strongest possible language to stress the need
    for cooperation between the Bureau and law enforcement officials at all
    levels.148 Apparently, without this cooperation the FBI could not
    maintain the excellent record it now enjoys in the enforcement of a
    long list of Federal criminal statutes.149 Although the Bureau states that
    it “has not experienced any particular difficulty or embarrassment in
    connection with investigation of alleged police brutality,” 150 there is
    evidence that investigations of such offenses may jeopardize that working
    relationship.151 The very purpose of these investigations is to ascertain
    whether or not State or local officers have committed a Federal
    crime. Even though the allegations later prove groundless, the investigation
    of them may place the FBI in a delicate position.
    The policy of notifying the heads of law enforcement agencies whenever
    one of their officers is under investigation for alleged acts of brutality
    presents another problem. The policy is set forth in the Bureau’s
    i960 report: 152
    When civil rights investigations are instituted involving law enforcement
    officers or personnel of other public agencies, the FBI
    carefully avoids interfering with the orderly operation of the agency
    concerned. At the outset, the FBI contacts the head of the agency
    and advises him of the complaint which has been received and that
    investigation is being instituted.
    Apparently this practice is considered a courtesy necessary for the
    maintenance of the cooperative relationship between the Bureau and
    local authorities. The Bureau also states that the practice153—
    . . . has resulted in the realization by most police officials that it
    is to their own best interests and the interest of law enforcement
    in general that any allegations of misconduct by policemen be
    thoroughly and fully investigated.
    61
    But this policy can jeopardize a section 242 case. Police force supervisors
    may adopt an unduly protective attitude toward their officers.
    They may share the racial prejudices of their subordinates and of their
    communities.154 These men cannot always be counted upon to cooperate
    in cases in which the victim is a member of a racial minority.
    Yet, the Bureau appears to adhere rigidly to this policy. In 1959 a
    case of an allegedly unjustified killing of a Negro by a State policeman
    was closed because of the Division’s reluctance to have the Bureau notify
    the Arkansas Governor of a civil rights investigation during the tense
    school situation in Little Rock. There is no evidence of any written
    communication from the Civil Rights Division to the FBI ordering it to
    suspend its policy of notification in this case.155
    Still another difficulty may arise from the cooperative relationship between
    the FBI and local policemen. Although the Bureau has declared
    that it knows “of no instances of any individuals being fearful to bring
    complaints to the attention to the FBI,” 156 there is evidence that some
    victims and witnesses, especially among Negroes in the Deep South, are
    afraid to bring information to the Bureau’s field offices.157 As has already
    been pointed out, victims and witnesses of police brutality “are
    apt to be weak and frightened people.” 158 Some of their fears appear
    to be based upon the fact that agents and local policemen often work
    closely together,159 and that officials somehow soon learn the names of
    complainants.160 Other fears appear to be less substantial, such as those
    that spring from a basic distrust of all law enforcement officers.161 Regardless
    of their source, these fears inhibit some people from reporting
    acts of police brutality to the Federal Government.
    There is no clear-cut solution to all of the difficulties encountered in
    the investigation of police brutality complaints.162 Some of these problems
    are inherent and perhaps inevitable. Such is the case of those victims
    of violence who distrust FBI agents, believing them to be in league
    with local officers. Certainly the Bureau cannot, on their account, resign
    its heavy responsibilities in those fields of Federal law enforcement
    that require its close association with local officials.
    But some difficulties appear to arise from policies and practices which
    might be altered or followed less rigidly. In this category are the FBI
    policy of immediately informing police superiors of investigations and
    the practice of simply forwarding complaints to Washington without a
    limited initial investigation into the stories of known victims and witnesses.
    On occasion these procedures create real handicaps. The enforcement
    of the Civil Rights statutes is difficult enough without them.
    Prosecution.—At some point in the investigative stage the Division
    must decide whether or not to prosecute. This decision is usually
    made with the advice of the U.S. attorney for the district in which the
    case has arisen.163 Generally, three main factors govern a decision to
    prosecute.
    62
    (I) The credibility of the victim.—In most cases the victim of police
    brutality comes from an underprivileged environment. Usually he is
    poor and uneducated, and sometimes he has a criminal record. And
    when the victim is a Negro his credibility before juries in some sections
    of the country is low no matter what his education or social status.
    Because of these difficulties, corroborating evidence is usually vital to
    the Government’s case. This may come from eyewitnesses. When the
    victim has been beaten in jail, other prisoners have often observed either
    the beating or its effects, but their credibility may also be suspect. Of
    course, the Government’s case is immeasurably enhanced if a policeman
    testifies to the incident against a fellow officer. In a great number
    of cases, however, there are simply no witnesses except the defendant
    and his victim. Unless the victim suffered serious and observable injury,
    it is difficult to prove such a case to a jury’s satisfaction, for the
    word of the victim standing alone may be less believable than that of
    the officer.
    164
    165
    166
    167
    (2) The nature of the victim’s injuries.—Injuries may provide corroborating
    evidence, especially when supplied through the testimony of
    doctors or nurses. Moreover, if the injuries are particularly shocking,
    they may impress a jury sufficiently for conviction. They may also be
    particularly helpful in establishing specific intent. Where the variety
    and location of the victim’s wounds indicate that he suffered protracted
    abuse, the jury may be persuaded that the act was done, not in a momentary
    fit of anger, but as part of a willful design to punish or to extract
    a confession—that is, with the requisite specific intent.
    168
    169
    (3) The likelihood of obtaining a conviction.—Obviously, this factor
    depends, in part, upon the credibility of the victim (and witnesses) and
    the nature of his injuries. It is also influenced by the presence or absence
    of racial prejudice in the community from which the jury is drawn,
    when the victim is a member of a minority group.170
    The fact that the chances for conviction have been slim has sometimes
    deterred the Division from prosecuting borderline and even strong
    cases of official brutality.171 The determination of how much weight
    should be attached to the likelihood of success is a question of balance.
    On the one hand, it seems clear that a large number of unsuccessful
    section 242 prosecutions throughout the country would be almost certain
    to generate widespread contempt for the statute.172 On the other
    hand, even an unsuccessful prosecution, by disclosing the Government’s
    evidence in a public trial, can have an educative and therapeutic effect
    upon the entire community.173 The Commission feels that in some instances
    the Division has probably attached excessive value to the “success”
    factor in failing to prosecute apparently serious violations.174 Additional
    cases, carefully selected, might well be brought—even in the
    face of heavy opposing odds.
    63
    Once the decision has been reached to prosecute, the case is usually
    turned over to the U.S. attorney for the Federal judicial district in
    which it is to be tried. He is normally advised of the matter early in the
    investigative stage, and the Division solicits his advice as to further
    investigation as well as prosecution. Control of all civil rights cases rests
    with the Attorney General and the Civil Rights Division.175 However,
    when a police brutality case is to be prosecuted, the U.S. attorney
    usually assumes responsibility for presenting it to a Federal grand jury
    and eventually for trial, with the Division acting in an advisory role. In
    this way local resentment against outside “Washington lawyers” may be
    avoided. Nevertheless, it is necessary sometimes for Division attorneys
    to present cases.
    U.S. attorneys, it must be remembered, are Presidential appointees
    of independent political stature. Moreover they are generally residents
    of the district in which they serve and may harbor the racial prejudices
    prevalent in that area. That many U.S. attorneys have, despite considerable
    community pressure, vigorously protected citizens’ constitutional
    immunity from unnecessary police violence is indicative of their
    high caliber. Certain U.S. attorneys, however, have consistently opposed
    the prosecution of police brutality cases. This opposition has
    been expressed in protracted delays in prosecutions authorized by the
    Division, in halfhearted presentation of cases, and in ignoring the Division’s
    repeated requests for information concerning the status of the
    prosecution.1'6 Nonetheless, there apparently has been a significant improvement
    since 1947 when the Truman Committee complained
    that177—
    All too frequently, United States Attorneys are allowed to become
    the final arbiters in the disposition of civil rights cases. The Department
    of Justice should make more vigorous use of its authority
    to stimulate, educate, prod, and even overrule United States attorneys
    in the handling of cases in this area.
    Finally, U.S. attorneys are sometimes unfamiliar with the Civil Rights
    Acts.178 Few have encountered them in their previous practice.179 To
    meet this problem Attorney General Brownell instituted a program in
    T953 under which U.S. attorneys were given a brief training course in
    civil rights laws at the Department in Washington. This program was
    not carried forward into subsequent years.
    The first step in the actual prosecution is the presentment of the case
    to the local Federal grand jury. Strictly speaking, the Government can
    bypass the grand jury in police brutality cases and proceed directly to
    trial before a petit jury. For, as mentioned previously,180 section 242—
    the statute under which charges of police brutality are normally brought—
    defines a misdemeanor, not a felony. Under Federal law,181 mis-
    64
    demeanor prosecutions may be brought to trial merely by the filing of
    a written information—that is, a sworn statement setting out the charges
    against the defendant. But the Division always directs that indictments
    be sought.182 There are good reasons for this practice. It gives the
    Government an opportunity to test witnesses under oath; it relieves the
    FBI of the necessity of appearing in the role of accuser to swear to the
    veracity of the complaint (as it would have to do in the event that an
    information were filed); and, should the grand jury refuse to indict, the
    Division has a transcript of the proceedings to use as a basis for deciding
    whether to present the case again to a new grand jury.183
    Generally, there appears to be little significant difference between
    the attitudes of grand and petit juries toward police brutality cases.184
    Thus, in communities which are hostile to civil rights cases, it is sometimes
    as difficult to obtain an indictment from the grand jury as it is a
    conviction from a petit jury.185 Yet lawyers well know that juries are
    frequently unpredictable. While even the most convincing evidence
    of police brutality may fall on deaf ears before one jury, a particularly
    bloody and senseless case may convince another jury to return an indictment.
    Moreover, if a grand jury refuses to return an indictment,
    the Government can later present its evidence before another grand
    jury in an effort to obtain an indictment.186 Again, the Government
    could proceed to trial without an indictment by means of an information.
    The Department of Justice has been reluctant to proceed by information
    after it has failed before a grand jury.187 In fact, this has occurred
    only once. In 1942 the former Civil Rights Section, after an indictment
    was refused, directed that an information be filed against a West
    Virginia sheriff who had led a mob in tormenting members of the
    Jehovah’s Witnesses. The sheriff’s subsequent conviction by a petit
    jury was affirmed on appeal.188
    The question whether to proceed by information after an indictment
    has been refused is a thorny one. On the one hand, the use of an information
    insures that the Government’s evidence is exposed to public
    view. An information may offer the only remedy in a vicious brutality
    case, supported by strong evidence, in which a grand jury has refused
    an indictment out of prejudice against civil rights prosecutions or
    against the race of the victim.189 On the other hand, the filing of an
    information after a grand jury has listened to the evidence and returned
    a “No Bill” may be actually (though not legally) unfair to the accused
    officer. It exposes the defendant to something analogous to double
    jeopardy. If a grand jury has refused to return an indictment against
    him, when it could have done so by a simple majority vote of its members
    based upon merely prima facie evidence of a violation, why should
    he be subjected to a trial before a petit jury which can convict him only
    if it is unanimously convinced of his guilt beyond a reasonable doubt?
    Moreover, U.S. attorneys generally dislike using informations.190 Fre-
    65
    quently a community learns from the press or by other means that a
    grand jury has previously refused an indictment and comes to regard
    the subsequent prosecution as an unjust harassment of the defendant.191
    Thus local pressures militate against the use of informations. The question
    can only be resolved through a separate evaluation of each case.
    The Division could profitably devote more consideration to the use of
    informations in appropriate cases.192
    The last step in the prosecution of a case is the actual conduct of the
    trial. The chief difficulty at this stage is, again, the frequent opposition
    of petit jurors to civil rights cases. The same general observations
    made with respect to grand juries apply here.
    Since the Civil Rights Section formally became a Division on December
    9, 1957, it has obtained convictions from juries in four police brutality
    cases.193 And during this period, the defendants in two other cases 194
    entered pleas of nolo contendere, an implied admission of guilt. This
    total of six cases is not an impressive statistical record for a period of
    over 3 years. It is difficult to state with certainty why there have not
    been more convictions in specific cases.
    This Commission is not convinced that police brutality complaints,
    which constitute 30 percent of all matters received at the Division,195
    have been given the emphasis and the vigorous attention that they deserve.
    It cannot be said, of course, that more far-reaching investigation
    or more vigorous prosecution under the new administration will necessarily
    increase the number of convictions.
    At the same time, it must be recognized that the value of the Civil
    Rights Division does not rise and fall with the annual number of convictions.
    As the United States Attorneys3 Manual cautions: “. . . the
    underlying purpose of the Federal law in this field is to secure and protect
    the rights involved. Federal prosecution ... is important only
    insofar as it serves this end.” 196 Moreover, it has been argued that the
    real test of vigorous leadership in the enforcement of civil rights statutes
    is not the number of convictions obtained but rather the number of
    prosecutions authorized.197 Yet, it should be recognized that even a
    policy of wholesale prosecution of complaints would not necessarily get
    at the root of the problem and would run the risk of undermining community
    respect for law enforcement officers. All of these are important
    considerations in assessing the effectiveness of the Civil Rights Acts and
    their enforcement by the Civil Rights Division and the FBI.
    However, the fact remains that at the present time the constitutional
    rights of a significant number of American citizens are being invaded
    by acts of police brutality. Their rights are not being secured and
    protected. This problem is not being adequately handled by State and
    local officials.198 A Federal statute makes such action a crime; yet the
    number of prosecutions under this statute is small.199 The number of
    convictions, smaller yet. This is a distressing situation.
    66
    SUMMARY
    The Truman Committee wrote of the Civil Rights Section in 1947 that
    “the total picture ... is that of a sincere, hard working, but perhaps
    overcautious agency.” 200 This same statement would fairly characterize
    the Civil Rights Division today in its efforts against unlawful official
    violence. Many of the specific items which the Truman committee
    criticized in 1947 regarding the Civil Rights Section have since been
    remedied. The Section has become a Division. Its staff and budget
    have been greatly increased—though still perhaps not sufficiently. An
    intricate system of recordkeeping has been installed. Control over the
    activities of U.S. attorneys appears to have increased.
    In the opinion of the Commission, however, there remain some areas
    where further improvement might be achieved. The Division’s information-
    gathering activities could probably be improved. Greater willingness
    to authorize investigations on the basis of newspaper reports might
    uncover more violations of the law. A somewhat less skeptical attitude
    toward those who refuse to sign complaints and an increased willingness
    to bring borderline cases to trial are needed. The policy of deference
    to State authorities may presently be carried too far in those cases where
    an investigation (as distinct from a prosecution) is held up whenever
    any local action is commenced. The difficulties with investigations,
    such as they are, might be overcome by a more vigorous policy—and
    perhaps by a new administrative arrangement within the Department
    of Justice to ease the problem of FBI agents having to investigate police
    officers with whom they work daily on other cases. Such problems as
    remain with U.S. attorneys might be alleviated by special orientation
    courses for new attorneys or the designation by U.S. attorneys of assistants
    to specialize in civil rights matters.
    The Commission’s overall impression, however, is that many of the
    difficulties of enforcing the Federal laws in the field of unlawful police
    violence arise not only from these details of administration and procedure,
    but from the nature of the cases themselves; from the inherent
    difficulties of present statutes; and above all, from a general lack of
    awareness and sensitivity to the rights involved, on the part of judges,
    prosecutors, lawyers, policemen, and the general public. Little can be
    done directly to prevent police brutality itself until the police are more
    carefully selected, trained, and controlled.201 State and local action
    appears to be very significant in this respect.202 But the applicable Federal
    law might well be amended to make it more effective.
    67

    5. Federal Civil Sanctions
    “NOTHING MUCH I CAN DO”
    I was born in North Carolina and raised in the Hills of Eastern
    Tennessee, and I am in favor of the Civil Rights Statutes but must
    live with this as silent as the grave. I see my clients beat, abused
    and run over all of the time and there is nothing much I can do,
    because when I try in Federal Court I wind up with the hell beat
    out of me.
    Few attorneys who have represented victims of police brutality in civil
    actions under the Federal civil rights statutes have been any more successful
    than the southern white lawyer who wrote this paragraph to the
    Commission.1 This fact is established by the results of a staff survey of
    all such Federal civil actions filed during the 2 years from July 1,
    1957, through June 30, 1959.2 Only 42 civil suits alleging police
    brutality were filed.3 As of May 1961, although all but eight of these
    civil complaints had been disposed of, not one had resulted in a verdict
    for the plaintiff-victim.
    Seventeen of the 42 suits were concentrated in the U.S. District Court
    for the Northern District of Illinois.4 In 17 of the cases the victims were
    Negroes, and there was 1 case each involving a Puerto Rican and an
    Indian. Fifteen arose in the South, but only 4 of these involved colored
    victims.5 These figures may be measured against the 1,328 complaints
    of police brutality received by the Civil Rights Division during a comparable
    2%>-year period—461 of which (including 347 from the South)
    involved known Negro and other minority group victims.”
    Despite the relative scarcity and the general lack of success of civil
    suits under the Federal statutes, these civil remedies appear to possess
    great potential as weapons against official cruelty and connivance in
    violence. They seem to offer significant advantages over the Federal
    criminal statutes. (Of course, suits under both the criminal and civil
    statutes may be brought against an officer guilty of using unnecessary
    violence.)
    590 614—61----- 6 69
    First, the Federal civil statutes can provide a more complete remedy
    for police brutality and private racial violence than do the criminal laws.
    Civil relief compensates the claimant. He receives money damages for
    out-of-pocket expenses as well as for pain and suffering he has endured.7
    If successful, he thus obtains more than the mere satisfaction of seeing
    his oppressors justly penalized. In addition, the most important of
    these civil statutes also authorizes preventive relief in a “suit in equity
    ... for redress.” 8
    Both the criminal and the civil statutes may serve as deterrents to
    illegal violence. The threat of suits may well dissuade officials from using
    unnecessary violence. Moreover, both criminal and civil suits, by directing
    public attention to police abuses, may develop community pressure
    for their correction. Such public sentiment can also be expected
    to deter law enforcement officers from committing (and their superiors
    from condoning) acts of brutality.
    Second, it is less difficult, at least in theory, to prove a case of police
    brutality under the civil statute than it would be to establish the same
    case under the criminal statute, section 242.9 The rather troublesome
    proof of specific intent which the Supreme Court has required under
    section 242,10 is not needed to establish a claim under the civil statute;
    and evidence of a crime must satisfy the jury beyond a reasonable doubt,
    but the claimant in a civil suit need only prove his case by a preponderance
    of the evidence. Moreover, the civil remedy seems to involve less
    difficulties with juries than a prosecution under section 242. There is
    less danger, apparently, that the jury will be swayed by the thought that
    States’ Rights are being threatened by “interference from Washington.”
    11 For only the forum is Federal in a case under the civil statute.
    The suit itself is instituted by local citizens who are usually represented
    by local counsel. And since grand juries do not operate in civil cases,12
    the facts, when they are presented for the first time, are presented in
    open court where they are necessarily exposed to public view.13
    The advantages of the Federal civil remedies over section 242 should
    be weighed against the general limitations inherent in any civil suit.
    One of these limitations is that, unlike criminal cases for which the Government
    bears the costs of prosecution, in civil cases private individuals
    must pay their own way. The collection of evidence may require
    considerable time and money. Yet the victims of police brutality
    and racial violence are predominantly the poor and the powerless.14
    This problem has been partially met by contingent fees, whereby attorneys
    agree to take civil rights cases without initial charges in return
    for a promise of a higher percentage of the damages, if the suit succeeds.
    15 But such suits seldom do. The paucity of civil suits under the
    Civil Rights Acts suggests that contingent fees do not adequately meet
    this problem.
    70
    Another limitation inherent in civil suits is that they require defendants
    who are at least solvent enough to satisfy a judgment for damages. Under
    a recent Supreme Court decision,16 a victim of illegal police violence
    may not recover damages under the civil statutes from municipalities or
    States that employ offending officers. Damages must be collected from
    the officers themselves. But many policemen are in no position to pay
    substantial money judgments.
    Time is still another limitation in civil suits. The Federal courts’
    civil dockets are overcrowded.17 As a result, it may take several years
    to bring a civil suit to trial. Criminal cases are treated more expeditiously,
    because the 6th amendment guarantees “speedy” trials to those
    accused of Federal crimes.
    These limitations—the expense of civil suits, their dependence on
    the defendant’s means, and the longer period involved in their litigation—
    militate against the use of civil remedies in cases of illegal violence
    by officials. In the main, those same considerations apply whether civil
    suits are brought under Federal or State statutes.18
    Until recently, judicial interpretation of the civil statutes had restricted
    their application.19 But in February 1961, the United States Supreme
    Court for the first time in many years focused its attention upon the
    most important of these civil statutes.20 The Court carefully examined
    the provision in the light of the congressional debates and the various
    counterproposals that accompanied its passage into law. Then, with
    only one justice dissenting, the Court swept away an accumulation of
    lower court decisions that over the years had almost entirely emasculated
    that law.21 Thus revitalized, section 1983 of title 42 of the United States
    Code now affords promise of a more potent guarantee of the right to be
    free from unnecessary violence at the hands of law enforcement officials.22
    THE STATUTES
    The most promising remedy
    The most frequently invoked of the Federal civil statutes providing redress
    for police brutality is section 1983. That statute provides: 23
    Every person who, under color of any statute, ordinance, regulation,
    custom, or usage, of any State or Territory subjects, or causes to be
    subjected, any citizen of the United States or other person within
    the jurisdiction thereof to the deprivation of any rights, privileges,
    or immunities secured by the Constitution and laws, shall be liable
    to the party injured in an action at law, suit in equity, or other
    proper proceeding for redress.
    71
    Section 1983 offers the victim of police brutality two remedies. He
    may elect to sue for money damages (this right of action survives the
    death of the victim, thus allowing his heirs to bring suit for his wrongful
    death)24 or he may request a court order that enjoins the defendantofficers
    from harming him in the future.25 The first is an action at law,
    the second, a suit in equity. A victim may, in fact, pursue both remedies
    in the same action.
    The language of this section is virtually identical with that of section
    242 of the United States Criminal Code. The most obvious difference
    is that section 242 provides for fine and imprisonment rather than the
    civil sanctions of section 1983—damages and injunction.
    The relationship of section 1983 to section 242 is shown in the case of
    a colored woman, who stopped her car for gasoline at Huntsville, Tex.
    She attempted to use the women’s restroom at the filling station. The
    attendant immediately summoned the police, and a deputy sheriff, who
    responded to the call, allegedly struck the women in the face for being
    “sassy.” The deputy was reported to have knocked her to the ground
    and kicked her. The woman was arrested and fined $20 for disturbing
    the peace. A civil action against the deputy under section 1983 26 was
    subsequently settled by agreement after the woman was paid $8oo.27
    On the basis of the allegations made in this section 1983 suit, the
    Civil Rights Division might have instituted a criminal proceeding against
    the deputy sheriff under section 242. Had either case gone to trial, the
    victim in her suit and the Government in its prosecution would have had
    to establish most of the same elements in order to succeed—an action
    committed under color of law28 that deprived the plaintiff of a right
    defined by the Constitution.29
    However, section 1983, unlike section 242, does not require proof
    of specific intent.30 Before the Supreme Court’s decision early this
    year in Monroe v. Pape, some courts attempted to apply that requirement
    to civil cases under section ig83.31 The Monroe decision has laid
    all doubts to rest—at least with respect to section 1983 suits that allege
    a denial of due process of law:32
    In the Screws case we dealt with a statute that imposed criminal
    penalties for acts “wilfully” done. We construed that word in its
    setting to mean the doing of an act with “a specific intent to deprive
    a person of a federal right.” . . . We do not think that gloss should
    be placed on § 1979 [sec. 1983] which we have here. The word
    “wilfully” does not appear in § 1979 [sec. 1983]. Moreover,
    § T979 Esec< T9^3] provides a civil remedy, while in the Screws
    case we dealt with a criminal law challenged on the ground of
    vagueness. Section 1979 [sec. 1983] should be read against the
    background of tort liability that makes a man responsible for the
    natural consequences of his actions.
    72
    Proof of a denial of equal protection of the laws in police brutality
    cases under section 1983 appears to require some showing of purpose if
    not specific intent itself.33 For this reason, plaintiffs—although they can
    bring such suits under either rationale—are more likely to pursue their
    cases as deprivations of due process rather than of equal protection.34
    There has been some anxiety over the effect that widespread use of
    section 1983 might have on the delicate balance of Federal-State relations.
    35 This concern was reiterated by the United States Court of
    Appeals for the Seventh Circuit not long after the Monroe decision: 36
    A broad interpretation of the Supreme Court’s decision in Monroe
    v. Pape may well open the flood gates and bring into the federal
    trial courts thousands of assault and battery cases that should never
    be there. In metropolitan areas where many arrests are made daily,
    cases based upon this kind of claim may well completely jam what
    are already crowded trial calendars. Police officers, in making
    arrests, are often required to use force, and for their own safety, to
    make search of the persons whom they have arrested. Only a
    small degree of imagination is required for these prisoners to develop
    an ordinary arrest into a claim that an attempt was made to
    force confessions, or to invade other constitutional rights.
    Nonetheless, the Monroe decision squarely holds that section 1983
    gives a victim of police misconduct a remedy in Federal courts. Moreover,
    as the Supreme Court there declared: 37
    It is no answer that the State has a law which if enforced would
    give relief. The federal remedy is supplementary to the State and
    the state remedy need not be first sought and refused before the
    federal one is invoked.
    The Monroe decision has already had its impact. In the same case
    in which the Seventh Circuit expressed concern over section 1983 cases,
    it reversed the dismissal of a police brutality case under that statute and
    ordered the lower court to try the case on its merits.38 The Court of
    Appeals noted that prior to Monroe it would have upheld the dismissal.
    Then somewhat reluctantly, it ruled that since Monroe it saw “no alternative
    to reversing.” 39
    But the Monroe decision contained another ruling—that a victim of
    police misconduct may not use this law to sue the governmental body
    employing the guilty officer.40 The Court said that Congress, in enacting
    section 1983, never intended to make municipalities liable in civil
    actions under the statute.41 Since policemen seldom are wealthy men,
    this ruling is likely to discourage suits in cases where the officers responsible
    for acts of brutality are without means.
    73
    An alternative civil remedy
    A companion statute to section 1983—section 1985(3)42—provides, in
    part, as follows:
    If two or more persons in any State or Territory conspire . . . for
    the purpose of depriving, either directly or indirectly, any person or
    class of persons of the equal protection of the laws, or of equal
    privileges and immunities under the laws, or for the purpose of
    preventing or hindering the constituted authorities of any State or
    Territory from giving or securing to all persons within such State or
    Territory the equal protection of the laws ....
    ... if one or more persons engaged therein do, or cause to be
    done, any act in furtherance of the object of such conspiracy,
    whereby another is injured in his person or property, or deprived
    of having and exercising any right or privilege of a citizen of the
    United States, the party so injured or deprived may have an action
    for the recovery of damages, occasioned by such injury or deprivation,
    against any one or more of the conspirators.
    Section 1985(3) is just what it appears to be—an exceedingly complex
    statute. The statute, as the Supreme Court has pointed out, “falls
    into two divisions,” of which 43—
    The forepart defines conspiracies that may become the basis of
    liability, and the latter portion defines overt acts necessary to consummate
    the conspiracy as an actionable wrong.
    With respect to police brutality, therefore, this statute applies only in
    cases where there is first a conspiracy of “two or more persons.” Second,
    those persons must intend by their conspiracy to deprive another (not
    necessarily the actual victim) of certain equal rights. These rights must
    either be “the equal protection of the laws,” which has been defined by
    the Federal courts,44 or “equal privileges and immunities under the
    laws,” a term left largely unexplained by the courts. Finally, the victim
    must have suffered injury to his person (which would, of course, cover
    cases of police brutality), damage to his property, or the loss of one of
    the rights of Federal citizenship.45
    Since section 1985(3) only applies to certain types of police brutality—
    namely, those that are the result of the sort of conspiracy just
    described—it follows that the applicability of this statute to police brutality
    is not as extensive as that of section 1983.46 Moreover, while section
    1983 does not explicitly mention conspiracies, there is judicial precedent
    for making conspirators to an overt act covered by the statute—and
    hence to police brutality—subject to civil liability.47
    In addition, section 1983 offers definite advantages over section
    74
    1985(3)- First of all, section 1983 is a surer remedy. The Monroe
    decision defined its scope and thus resolved lower Federal courts’ conflicting
    interpretations. The reaches of section 1985(3) remain largely
    uncharted. Secondly, section 1983 provides a more complete remedy,
    since it allows the plaintiff both injunctive relief and money damages.48
    Thirdly, and most important, section 1983 affords a far simpler remedy.
    In a section 1983 police brutality suit all that need be established is that
    the defendant acted under color of law and that he committed an act
    which deprived the plaintiff of one of his rights under the 14th amendment.
    49 Proof under section 1985 (3) is more involved.50 The plaintiff
    must first establish that there was a conspiracy. Then he must show
    the purpose of the conspiracy. Next, the plaintiff must establish that
    he suffered injury. Finally, the plaintiff must prove that the injury he
    incurred was caused by an act performed pursuant to the original
    conspiracy.
    Despite these complexities it appears that attorneys frequently bring
    police brutality suits under both section 1985(3) and 1983.51 There is
    only one reported case in which the plaintiff was successful under section
    1985(3).52 And in that case he also received a judgment under
    section 1983.
    On its face, section 1985(3) makes no distinction between private and
    official acts. There is no mention of conduct under color of law. However,
    the Supreme Court has made it clear that some action under color
    of law is almost invariably required to give rise to a suit under the first
    clause directed against conspiracies “for the purpose of depriving” a
    person of “the equal protection of the laws, or of equal privileges and
    immunities under the law.” 53 For while private individuals may invade
    or violate the 14th amendment rights of others, only State action can
    deprive persons of such rights.54 From this the Court concluded that:55
    Such private discrimination is not inequality before the law unless
    there is some manipulation of the law or its agencies to give sanction
    or sanctuary for doing so.
    The Court merely hinted without deciding what sort of action, under
    the first clause of section 1985(3), might make private conspirators
    civilly liable to the victim. The “post Civil War Ku Klux Klan, against
    which this Act was fashioned,” was cited as a possible example, and the
    Court then suggested that—56
    It may well be that a conspiracy, so farflung and embracing such
    numbers, with a purpose to dominate and set at naught the “carpetbag”
    and “scalawag” governments of the day, was able effectively
    to deprive Negroes of their legal rights and to close all
    avenues of redress or vindication, in view of the then disparity of
    position, education and opportunity between them and those who
    made up the Ku Klux Klan.
    75
    In the absence of such an extreme situation, the first clause of section
    I9^5(3) provides civil relief only against those acts of violence that are
    the result of a conspiracy by officials.57
    The second clause of section 1985(3), however, appears to provide
    relief against purely private action. It is directed against conspiracies
    formed for “the purpose of preventing or hindering the constituted authorities
    of any State . . . from giving or securing to all persons
    . . . the equal protection of the laws.” The scope of this provision has
    yet to be defined by the courts, and the proof problems are as difficult
    as with the first clause. If these are surmounted, however, the second
    clause would afford money damages to the victims of certain kinds of
    conspiratorial private racial violence.58
    Other civil remedies
    Section 1985(3) is bolstered by section 1986,59 which imposes civil
    liability upon anyone who has knowledge that a wrong mentioned in
    section 1985 is about to be committed, has the power to prevent that
    wrong, and yet “neglects or refuses” to do so. Thus the application of
    section 1986 depends first upon the commission of a wrong under section
    1985(3).60 There are few court decisions that explain section
    1986. It appears, however, to apply only to Federal, State, or local
    officials, those preeminently possessing the “power to prevent or aid in
    preventing the commission” of the wrongs specified in 1985(3)—for
    instance, police officers who stand by passively with full knowledge,
    while others conspire to commit and do commit acts of unlawful violence.
    There is one more provision—section 1977 61—which simply declares
    that all citizens are equally entitled to certain rights. Those mentioned
    are merely more specific expressions of the right to the equal protection
    of the laws under the 14th amendment. The provision is noteworthy
    in that it refers to the rights of nonwhite citizens.62 But it makes no
    mention of remedies. Not having been tested in any reported case, it
    may do no more than provide support for a section 1983 injunctive suit
    to require law enforcement officials to provide nonwhite citizens with
    “the full and equal benefit of all laws and proceedings for the security
    of persons and property as is enjoyed by white citizens.”
    SUMMARY
    These then are the Federal civil remedies for police brutality and private
    racial violence. Only one of these statutes—section 1983—can be said
    to be a potentially effective instrument for dealing with them.
    76
    Despite its potential advantages over the only effective criminal remedy,
    section 242 of the Criminal Code, section 1983 apparently has been
    overlooked or misunderstood by all but a few victims of police brutality.
    The recent Monroe case may make the statute more widely and accurately
    understood. At the same time, however, that decision points
    up a serious limitation—the fact that section 1983 does not reach beyond
    guilty officers to allow the collection of damages from their employers
    the cities. ’
    77

    6. State and Local Remedies
    The Commission is primarily concerned with the Federal remedies for
    violence discussed in the two preceding chapters. But these remedies
    are neither the most important nor the most effective measures for dealing
    with police brutality and “private” violence. The prime responsibility
    to punish and prevent such abuses rests with State and local
    governments. This chapter is a brief review of the remedies available
    to these governments.
    LEGAL REMEDIES
    The States, like the Federal Government, have criminal and civil remedies
    for unlawful violence. They may be used to punish and deter
    police brutality or police connivance in private violence. Civil suits
    offer the additional possibility that the victims of violence (or their
    heirs) will be compensated for their injuries. Each approach has its
    own advantages and disadvantages, largely parallel to those of the
    comparable Federal remedies.1 State actions, however, have an inherent
    advantage. While suits under the Federal Civil Rights Acts
    require proof that the unlawful violence was intended to invade Federal
    constitutional rights, in the usual State court suit it is necessary to prove
    only that the policeman was liable for the violence according to more
    easily satisfied common law rules of criminal or civil liability.
    Prosecutors and criminal actions
    When a policeman uses unnecessary force or connives in private violence,
    he is subject to the same criminal penalties as an ordinary citizen—
    ranging from jail or fines for simple assault and battery up to the death
    penalty for first-degree murder.2 Of all available remedies for police
    misconduct, State criminal actions may have the most powerful deterrent
    effect. The penalties may be heavy (unlike those of the Federal
    79
    statute, which are limited to a year’s imprisonment or a $1,000 fine),8
    and they do not, like damages in a civil suit,4 depend on the financial
    condition of the officer. The expense of investigating and prosecuting
    falls on the State, not on the private victims (or their heirs) as with
    civil suits. State prosecutions of police misconduct, moreover, usually
    are not hindered by the necessity for showing the “specific intent,”
    which the principal criminal Federal Civil Rights Act5 requires for
    conviction. Nor does a local prosecutor who brings charges against a
    policeman run the risk of jury resentment of Federal interference with
    “States’ rights.” 6
    Criminal prosecutions under State law would thus appear to be a
    potentially powerful weapon for dealing with police brutality and policeconnected
    violence, but they are seldom utilized.7 One reason for this
    may be that the machinery of criminal prosecution is not self-starting.
    As was pointed out in an earlier chapter,8 the person charged with the
    duty of investigating alleged police brutality may well be the very person
    alleged to have committed it. This situation is difficult even where some
    other officer has authority to investigate the charges, for here one officer
    must perform an investigation which could result in a prison sentence
    for his fellow officer. Similar difficulties arise out of the relationship
    between policemen and prosecutors. Prosecutors’ offices are theoretically
    separate from police departments, but, in reality, each needs the
    full cooperation of the other and they usually work closely together.0
    The attorney general of a State, being less dependent on local policemen
    than a local prosecutor, is in a position to discourage police brutality
    through a variety of methods. For example, he might convince local
    prosecutors to utilize criminal sanctions against erring policemen despite
    their close relationship or, failing that, might himself institute criminal
    action. He might in addition, support other programs—such as new
    laws or stricter departmental discipline—designed to inhibit all forms
    of police illegality including brutality. The Commission is not aware
    of many concerted programs of this nature. It is significant, however,
    that the attorneys general of at least six States (California, Massachusetts,
    New York, Pennsylvania, Oregon, and Wisconsin) have set up
    separate sections in their offices to deal with civil rights and civil liberties
    problems.10
    Civil suits by private citizens
    Unlawful violence is not only a criminal act, but also a tort, or civil
    wrong, for which the victim may sue for damages. In State courts
    private lawsuits against police officers for assault and battery or for
    wrongful death 11 are apparently more frequent than criminal prosecutions;
    12 although comparatively few cases of either type are brought before
    the courts. The major advantages of civil suits are that the injured
    8o
    person himself may initiate the action; that it may result in direct compensation
    to the injured person; and that the plaintiff must prove his case
    only by a preponderance of the evidence, rather than beyond a reasonable
    doubt as is required in criminal prosecutions.
    Damage suits in State courts, however, also have disadvantages, similar
    to those of civil suits under the Federal Civil Rights Act.13 The
    initiative and the financial burden of what may be protracted litigation
    lie on private persons who are likely to be poor. In such suits, as in all
    judicial proceedings regarding police brutality whether State or Federal,
    criminal or civil, there is the problem of persuading a jury to decide in
    favor of victims who may lack credibility in the eyes of jurors.14 And
    even where these hurdles are crossed and the victim secures an award
    of monetary compensation, the defendant often does not have sufficient
    funds to satisfy the judgment.15
    Nonetheless, there appear to be more successful civil actions for police
    brutality in State courts than in Federal courts. A comprehensive survey
    by the Commission failed to uncover a single successful Federal
    civil suit against police officers for brutality during a recent 2-year
    period.16 A brief survey limited to reported State civil cases of assault
    and battery against police officers during a comparable 2-year period
    found 6 successful suits;17 during the 5*4 years from January 1, 1956,
    through May 31, 1961, 11 successful State suits were reported.18
    Awards of damages ranged from $500 to $75,000. Since many cases
    in State courts do not appear in law reports, these figures probably
    represent only a portion of a much larger total.
    Civil suits based on police brutality complaints might be more numerous
    but for the doctrine of sovereign immunity. Because of this 17thcentury
    concept, now the rule in most States, governments cannot be
    sued without their consent for the wrongful acts of their agents or
    employees.19 Apparently, only one State, New York, has given its
    consent by a broadly phrased statute to be sued according to the same
    rules that apply to private employers.20 When New York policemen
    use unnecessary violence in the performance of their duties, therefore,
    injured parties may bring a civil suit for damages against the State or
    municipality 21 as well as against its employee, the officer. The statute
    makes the governmental employer liable for the wrongful acts of its
    agents—the policemen; 22 for their failure to act when they should have
    provided protection from violence;23 and for the employer’s negligence
    in the retention of unfit employees, such as an alcoholic officer.24 In
    recent years there have been a number of successful suits in New York
    for acts of police brutality.25
    In two States the doctrine has been limited by judicial decision.
    The Supreme Court of Florida in 1957 repudiated its application to
    law officers.26 The case concerned a claim that the jailer of the town
    of Coca Beach was negligent in locking the victim in an unattended
    81
    cell overnight; smoke had seeped into the cell and suffocated him. In
    repudiating the doctrine, the court explained, “We can see no necessity
    for insisting on legislative action in a matter which the courts themselves
    originated.” 27 Moreover 28—
    The immunity theory has been . . . supported with the idea that
    it is better for an individual to suffer a grievous wrong than to
    impose liability on the people vicariously through their government.
    If there is anything more than a sham to our constitutional guarantee
    that the courts shall always be open to redress wrongs and
    to our sense of justice that there shall be a remedy for every
    wrong committed, then certainly this basis for the rule cannot be
    supported.
    In 1959 the Supreme Court of Illinois abrogated the doctrine of
    sovereign immunity and held a school district liable for the negligence
    of a schoolbus driver.29 A later case involving police brutality strongly
    suggests that Illinois municipalities might also be liable for their negligence
    in the selection of people unfit for police duty and for failure to
    provide proper training for police officers.30 It appears, however, that
    the sovereign immunity in this area of other States remains virtually
    intact.31
    DISCIPLINE BY POLICE DEPARTMENTS
    Court action of a criminal or civil nature is not the only method of
    dealing with unlawful police violence. The most direct controls are
    found within the organization of State and local police agencies. Police
    chiefs, being the commanders of these highly disciplined organizations,
    are in a position to exercise control on their men and to discourage
    directly police brutality and connivance in private violence. Perhaps
    the single most potent weapon against unlawful police activity is a
    police commander who will not tolerate it. The converse is also true:
    where police leaders assume a permissive attitude toward violence by
    their men, they are often licensing brutality.
    Many large city police departments have set up administrative machinery
    to deal with complaints against officers. Superintendent Orlando
    Wilson, who assumed command of the Chicago Police Department
    in early i960, instituted an elaborate system for the handling of
    disciplinary problems,32 many of which arise from complaints made by
    citizens. All complaints are now promptly reported to a division of
    internal inspection which conducts speedy and impartial investigations
    followed by recommendations for departmental action. As is the case
    82
    in most departments, only the superintendent can actually impose disciplinary
    action; his powers range from a simple reprimand to suspension
    from duty without pay for 29 days.33
    It appears, however, that the major reason for the successful operation
    of Chicago’s system lies not in the fine points of organization, but
    rather in the determination of a strong, capable leader that it would
    work—that police illegalities, including brutality, would be discouraged.
    Wilson never issued a directive expressly dealing with unnecessary violence.
    His demands for an honest and professional police force and his
    willingness to impose punishment on offending officers made the message
    quite clear: brutality, like bribery, is not for professional policemen.
    Complaints of police brutality declined drastically in the months that
    followed Wilson’s appointment. On July 29, i960, a civil liberties organization
    official wrote the Commission praising Wilson’s administration
    and stating that “excepting for one alleged beating, we have been
    unable to find any source that has even heard of a case of police brutality
    since Wilson’s employment.” 34 A subsequent Commission field investigation
    in 1961 confirmed this evaluation, although complaints of
    brutality were made in the interim.35
    The complaint machinery of other police departments has been subjected
    to criticism. At the Detroit hearing it was charged that “investigation
    of police brutality complaints by the police department, itself,
    is an inherently wrong procedure.” 36 Willis Ward, former assistant
    county prosecutor, also maintained that the trial board of the Detroit
    Police Department did not deter police brutality, for “these . . . hearings
    appear to be slanted to prove to the public that the officer is right
    and the citizen is wrong.” 37 In 1957 Philadelphia City Councilman
    Henry W. Sawyer HI described the police board of inquiry in that city
    as “a farce when it comes to hearing civilian cases.” 38 He continued,
    “When five policemen hear a complaint against another policeman, the
    policeman is always right.” 39 Such criticism led to an experiment—
    the Philadelphia Police Advisory Board.
    INDEPENDENT POLICE ADVISORY BOARDS
    The Philadelphia Police Advisory Board was established by Mayor
    Richardson Dilworth on October 1, 1958. Composed of distinguished
    private citizens and independent of the police department, it hears complaints
    from citizens against policemen and makes nonbinding recommendations
    to the police commissioner, who alone can impose
    punishment. This is apparently the first such agency created in this
    country.
    83
    The board operates in the following manner.40 Citizens may send
    complaints directly to the executive director. (The police department
    board of inquiry is still in operation, but citizens with complaints now
    frequently bypass it.) When the director decides to hold a hearing, he
    notifies the police commissioner who orders an investigation by local
    commanders and also orders the officers charged to appear. Results of
    the police investigation are sent to the advisory board and the complainant,
    policemen, and witnesses on both sides are then brought before
    the board. Counsel are allowed to be present and to cross-examine
    witnesses—privileges not always granted by departmental trial boards.41
    After the hearing the board files its written opinion which includes: (i)
    its factual conclusions; (2) recommendations for specific punishment
    (if it concludes that the officers were wrong); and, in certain cases, (3)
    a recommendation of procedures to be used by other officers in like
    situations. In almost every case the police commissioner has imposed
    the punishment recommended by the board.42
    Since there are no adequate statistics, it cannot be said with certainty
    that the incidence of police brutality has diminished since the board commenced
    operation. Indeed, as the board has become more widely
    known, the number of complaints to it has increased.43 But in the words
    of Philadelphia Police Commissioner Albert Brown, “the men feel that
    you can get in trouble with this board.” 44 For the first time in the
    memory of local people familiar with civil liberties problems, the relatively
    small number of policemen inclined toward brutality are being
    subjected to suspensions and other departmental discipline. The general
    consensus is that the Philadelphia Police Advisory Board has met with
    some success.45 Demands are now being made in other cities that similar
    boards be established.40 It is known that police advisory boards have
    now been set up in Minneapolis, Los Angeles, and York, Pa.
    SELECTION AND TRAINING
    Selection of recruits
    The ultimate factor in any study of police misconduct must be in the individual
    policeman. The manner of his selection and of his training are
    crucial factors. When a police department fails to screen out the strongly
    prejudiced, the emotionally unstable, or the unintelligent, it is inviting
    official misconduct. The cases discussed in chapter 2 demonstrate that
    in at least some cases men of questionable character and psychological
    makeup are given the gun and club of a law officer. They also show
    that violent prejudice may lead policemen to unnecessary violence against
    84
    Negroes;47 that much brutality occurs during the tense moments of arrest,
    when the officers’ emotional stability is severely tested;48 and that
    an intelligent policeman can exercise control over a tense situation so as
    to prevent violence from erupting.49 Cases involving police violence have
    reached State courts where it was alleged that the officer involved had a
    known record of previous assaults (California, 1943) ;50 was known to
    be an alcoholic (New York, 1947) ;51 was known to be insane (Tennessee,
    1948) ;52 had been involved in numerous street brawls and had a
    prior criminal record including a conviction for grand larceny (Illinois,
    1959) >53 or was a convicted murderer (Mississippi, 1958 and 1961).64
    Many police departments have raised their selection standards recently
    in an effort to screen out men of bad moral character or of low
    intelligence. However, rejection of candidates because of emotional
    instability or violent prejudice appears to be a rare occurrence.55 This
    may, in the past, have been due to the difficulty of isolating such
    characteristics, but tests have now been developed which predict with
    some degree of accuracy the psychological traits required for effectiveness
    in certain occupations, including those involving situations of
    stress.56 There is a growing interest among police officials in the development
    of such a test for police candidates. In 1958 a New York City
    police leader declared: 57
    The field of psychology has many important contributions to make
    to Police Science, including the application of psychological testing
    to police selection procedures.
    The New York City Police Department is currently sponsoring a
    comprehensive 4-year research program which is aimed at developing
    tests to identify the right personality types for police work and at establishing
    training programs which will further the establishment of professional
    standards for the police force. Prejudice and emotional
    stability are both under study.58
    Programs of this sort, if successful, may eliminate many instances
    of police brutality at the source—by screening out those applicants most
    prone to commit brutality. It must be remembered, however, that no
    matter how good the selection program, a low pay scale will hinder the
    recruiting of men of high caliber.59
    Training
    Training programs fall into two categories: those teaching modem methods
    of detection and control and those dealing with human relations.
    (It should be noted that many police departments, particularly those
    in smaller cities, have no training programs as such.)
    Scientific police techniques.—A policeman trained in crime detection
    and proof may have less motivation for brutality than his less sophisti-
    599614—61------7 85
    cated counterpart. Such training seems to have particular application
    to the third degree and coercion of confessions. As FBI Director
    J. Edgar Hoover has pointed out, when a suspect denies charges of
    criminal conduct “the ill-trained officer might think [that] ... a severe
    beating will force a confession. But the trained officer, schooled in the
    latest techniques of crime detection, will think otherwise—he will go
    to work locating a latent fingerprint, a heelprint in the mud, or a
    toolmark on the safe.” 60
    Human relations and “private” violence.—Courses in human relations
    appeared in police training long after training in crime detection
    was well established. Police training programs of this type embody
    ideas ranging from simple courtesy to social psychiatry, race relations,
    the status of minority groups, and civil rights.61 These programs
    gained much impetus from the race riots of the early 1940’s, and are
    well established in many big city departments including Detroit, New
    York City, Los Angeles, Chicago, Philadelphia, and Dallas. They are
    indicative of the change that is taking place in the attitude of enlightened
    police officers toward the role of the policeman. Former New York
    City Police Commissioner Stephen P. Kennedy expressed the change in
    this way: 62
    We cannot continue to be satisfied with a trade school approach
    to police training. The police officer must be instructed in human
    relations, civil rights, constitutional guarantees. In short, he has
    to be prepared to assume his role as a social scientist in the
    community.
    This goal is far from realized, but that it is seriously proposed is an
    encouraging sign. Many training courses stress the need for the subordination
    of personal prejudices to the overriding duties of law enforcement.
    “An officer of the law . . . stands as a symbol of the impartial
    authority of society,” states a manual prepared by the Dallas Police
    Department on the subject of racial eruptions.63 These training policies
    may have their greatest impact on the impartial handling of race riots
    and on the prevention of police complicity in private violence.64 They
    may also have some deterrent effect on police violence involving minority
    group members in other situations.65
    LEADERSHIP
    Beyond these specific State and local remedies for police brutality and
    police involvement in private violence, lies the intangible quality of
    86
    leadership—not a “remedy” in the strict sense, but one of the most
    important factors in the prevention of unlawful violence. Formal procedures
    used to cope with the problem are not likely to be effective unless
    responsible governmental officials and community leaders are determined
    that they will be effective. The Commission has observed that
    leadership apparently has had an impact on violence in a number of
    situations. Two of these have already been discussed: the “private”
    violence in Alabama, a negative example,68 and police brutality in
    Chicago, a positive one.67
    The leadership of Atlanta’s Mayor William B. Hartsfield and Police
    Chief Herbert Jenkins have apparently had a deterrent effect on both
    police brutality and “private” violence. Last year Chief Jenkins told
    his men that regardless of personal feelings, they “must uphold the
    law” in matters of race relations.68 An official of a civil liberties organization
    recently commented on the Atlanta Police Department: “All
    members of the force take more pride in doing their job as a policeman
    than thinking about whether they are a segregationist or an integrationist.”
    69 The conduct of Atlanta policemen in dealing with tense racial
    situations arising out of sit-ins, as well as their cautious use of force, has
    received the praise of white and Negro citizens alike.70 When four
    Atlanta schools were desegregated on August 30, 1961, the pattern was
    the same. Mayor Hartsfield, supported by civic and community leaders
    at all levels, counseled against violence. Chief Jenkins and his men took
    every precaution to prevent trouble before it started. Their objective
    was achieved.71 President Kennedy opened his news conference on
    August 30 by congratulating Governor Vandiver, Mayor Hartsfield,
    Chief Jenkins, School Superintendent Letson, and all of the citizens of
    Atlanta “for the responsible, law-abiding manner in which four high
    schools were desegregated today.” 72
    Little Rock, Ark., provides an example of both the positive and the
    negative effects of leadership on private violence. Mob violence
    erupted when a school desegregation plan was being implemented in
    1957. State and local policemen did not prevent the violence, and
    Federal troops were sent there to guard Central High School. The U.S.
    Supreme Court placed the blame on the State Governor and the legislators
    who had called for resistance to desegregation. The conditions
    in Little Rock, the Court stated in 1958 73—
    . . . are directly traceable to the actions legislative and executive
    officials of the State of Arkansas, taken in their official capacities,
    which reflect their own determination to resist this Court’s decision
    in the Brown case and which have brought about violent resistance
    to that decision in Arkansas.
    Between 1957 and 1959 community leaders took energetic steps to
    revamp the city government and the police department, and made pub-
    87
    lie statements discouraging violence and resistance to law. A mob
    which appeared during a 1959 desegregation attempt was quickly dispersed
    by the men of the “new” Little Rock Police Department under
    the command of the new police chief, Eugene Smith. One observer
    said later: 74
    . . . everyone in Little Rock seems to agree that, in the end, it was
    the economic and business leaders of the community who played the
    leading part, helped by many civic and religious leaders. It was
    a determined consensus of Little Rock “power structure” opinion
    that brought about the change.
    The experience of New Orleans bears certain similarities to that of
    Little Rock. When desegregation was attempted in i960, there were
    violent reactions. But in 1961 there was peaceful compliance. School
    Board President Louis G. Riecke expressed his opinion regarding the
    difference in these words: 75
    I don’t think there is any question why the difference. The Governor
    and the legislature at this time last year were assuring the
    people there was no need to integrate the schools.
    SUMMARY
    State and local remedies for violence are more important than the
    Federal ones presently available. State criminal prosecutions and civil
    suits are not affected by the legal difficulties surrounding Federal suits,
    and State criminal penalties for unlawful violence are more severe than
    those specified in Federal laws. Moreover, in all cases of unlawful
    violence studied by this Commission, the officers involved were State
    or local policemen who were, therefore, within the immediate sweep
    of the disciplinary powers of State and local authorities. Effective
    selection standards for police recruits, training programs, and punishment
    of officers by their police department may also prevent violent
    denials of equal protection of the laws. But the full potential of State
    and local remedies as deterrents to official violence is still a long way
    from being realized.
    88
    7. Jury Exclusion
    Racial discrimination in the administration of justice finds expression in
    practices other than police brutality and connivance in violence. Where
    official policy denies participation in the instrumentalities of justice to
    one class of citizens because of race, color, or national origin, there is
    also a denial of the equal protection of the laws.1 This “white-collar”
    discrimination is more elusive than unlawful official violence. But in
    some communities the results may be that a whole class of citizens is
    denied participation in the agencies of justice.
    This report deals with only one of the many instrumentalities of
    justice 2—juries. The jury is perhaps the most important instrument
    of justice. For jury service is the only avenue of direct participation
    in the administration of justice open to the ordinary citizen. Moreover,
    the function of the jury can be a solemn one. It is the jury, not the
    judge, who must pronounce a man “guilty” or “not guilty”—an awesome
    responsibility.
    The exclusion of persons from juries by reason of race has been a
    Federal crime since 1875,3 and for 80 years the Supreme Court has
    held it to be a denial of the equal protection of the laws.4 Such exclusion
    violates the right of the accused, who is entitled to trial by a jury
    selected without regard to race,5 and it also violates the right of members
    of the excluded racial group to sit on juries.6 So clear is this rule
    that in its most recent decision on the subject, the Supreme Court
    merely cited prior cases and reversed a conviction without discussion.7
    “FAMILIARITY” AND “CONCERN”
    In 1959 the United States Court of Appeals for the 5th Circuit said: 8
    ... we have long known that there are counties not only in Mississippi
    but in the writer’s own home state of Alabama, in which
    Negroes constitute the majority of the residents but take no part
    89
    in government either as voters or as jurors. Familiarity with such
    a condition thus prevents shock, but it all the more increases our
    concern over its existence.
    The Court’s concern is well-founded. For the problem of racial exclusion
    from jury service is relatively widespread and, in certain areas,
    deeply entrenched. The serious and continuing nature of the problem
    is revealed by the frequency of cases in which the issue of jury exclusion
    is raised and by local situations which the facts in those cases disclosed;
    by the plain statements of judges and official observers; and by various
    field studies conducted by the Commission’s staff.
    The circumstances underlying the most recent Supreme Court decision
    8 are in point. In 1959 an all-white grand jury indicted Rev. Lewis
    L. Anderson, a Negro of Selma, Dallas County, Alabama, for second
    degree murder. According to the State,10 on January 20, 1959, Rev.
    Anderson was driving his car at between 60 and 70 miles per hour along
    an unpaved street in a well populated section of Selma. He collided
    with a car that had stopped at an intersection; his car then careened
    down the street, struck and killed a pedestrian, “hit a tree, bounced 4
    feet in the air and turned over.” 11 According to the defense Rev. Anderson
    was driving at only 15 miles an hour when he collided with the
    other car; the impact knocked Rev. Anderson unconscious while his foot
    was pressed against the accelerator, thus causing his car to speed out of
    control.12
    Because of his leadership in encouraging Negroes to vote, white citizens
    of Selma, according to information received by the Commission,
    regarded Rev. Anderson as a “trouble maker.” 13 An all-white petit jury
    convicted him of first degree manslaughter, and the State judge sentenced
    him to 1 o years’ imprisonment.14
    Rev. Anderson made appropriate motions during the proceedings,
    charging that members of his race were systematically excluded from
    grand and petit juries in Dallas County, and that such exclusion violated
    his constitutional rights.15 The trial court heard the evidence and denied
    the motions.
    Both sides agreed10—
    . . . that the 1950 Federal census showed 6,940 white males and
    7,956 colored males over the age of twenty-one years in Dallas
    County.
    But the other evidence was conflicting. On behalf of Rev. Anderson,
    the circuit solicitor testified that no Negroes had served on a grand jury
    in Dallas County for 5 years.17 The secretary to the jury commissioners
    stated that none had served on the grand jury for 3 years.18 Negro
    citizens testified that neither they nor, to their knowledge, any Negroes
    they knew had ever served on any juries.18
    90
    The State, on the other hand, attempted to show that its valid requirements
    for jurors disqualified a high proportion of Negroes. The
    Sheriff of Dallas County and the Chief of Police of Selma stated that a
    much higher proportion of colored than white persons were involved in
    crimes that disqualified citizens from jury duty.20 The State also introduced
    evidence that more Negroes than whites asked to be excused from
    jury duty.21 One of the State’s witnesses testified that a Negro had
    served on a grand jury 5 years earlier.22
    The Court of Appeals of Alabama held that Rev. Anderson had not
    succeeded in proving his claim of discrimination.23 The Supreme Court
    of Alabama then upheld the Court of Appeals with no discussion of the
    evidence.24 The United States Supreme Court found it equally unnecessary
    to discuss the evidence and reversed the State courts, apparently
    because the State failed to refute the defendant’s proof that Negroes
    had been systematically excluded from jury service.25
    Negroes are not the only minority excluded from juries. In 1959 the
    Colorado Supreme Court cited the following undisputed facts as prima
    facie evidence of unconstitutional discrimination: Logan County,
    Colorado had a total population of somewhat more than 17,000, of whom
    719 (4.2 percent) had Spanish-sounding surnames.26 During an 8-year
    period not one of the 7^9 persons had served on a grand or petit jury;
    from 1955 through 1957 not one Spanish-sounding surname appeared
    among the 5,400 names on the “gross jury lists;” 28 and in 1958 a
    similar list of 1,600 names contained only 2 persons with such surnames
    (neither of whom served) .29 The State attempted to rebut this evidence
    by verbal denials of deliberate racial discrimination by jury officials,
    but the Court reversed the conviction of the Spanish-American defendant.
    30
    A question of the exclusion of persons of Puerto Rican ancestry from
    juries in New York City has recently been raised in the appeal of a
    murder conviction. In affirming that conviction, the New York Court
    of Appeals rejected the claim as not supported by the evidence. The
    attorney for one of the defendants is currently preparing a petition for
    certiorari to the United States Supreme Court, on the grounds of jury
    exclusion.32
    A more striking example of racial exclusion occurred when Robert
    Lee Goldsby, a Negro, was indicted by an all-white grand jury in Carroll
    County, Miss., for a murder that occurred on September 4, I954-33 An
    all-white petit jury later convicted him, and he was sentenced to die.
    After a series of appeals and petitions for habeas corpus,35 Goldsby
    finally obtained a reversal of his conviction in 1959 when the United
    States Court of Appeals for the 5th Circuit found that he had established
    “a strong prima facie case that Negroes were systematically excluded
    from the grand jury and from the petit jury”,36 which the State had not
    refuted. The evidence revealed that in 1950 more than 57 percent of
    9i
    the 15,448 persons residing in Carroll County were Negroes.37 Of this
    number there were 1,949 nonwhite males over 21, who thus met the
    qualifications of age and sex for jury service.38 Yet, as the Court noted: 39
    . . . none of the officials called as witnesses—the Circuit Clerk,
    the Chancery Clerk, the Sheriff, the ex-Sheriff who had served for
    twenty years, the District Attorney, or the Circuit Judge—could
    remember any instance of a Negro having been on a jury list of
    any kind in Carroll County.
    This situation was apparently due to the failure of Negroes to meet
    a third qualification for jury service in Mississippi—the necessity of being
    a registered voter.40 The Court noted that: “The only Negroes ever
    proved registered as electors [and thus even eligible for jury service]
    in Carroll County were two who had died before 1954.” 41
    Even more recently the conviction of a Negro in Pulaski County,
    Arkansas, was reversed because of the systematic exclusion of Negroes
    from jury lists.42 But the number of cases is not an accurate index of the
    problem’s prevalence, since in many areas where racial exclusion of
    jurors persists the issue is not raised. The Court in the Goldsby
    case said:43
    As Judges of a Circuit comprising six states of the deep South, we
    think that it is our duty to take judicial notice that lawyers residing
    in many southern jurisdictions rarely, almost to the point of never,
    raise the issue of systematic exclusion of Negroes from juries.
    And the Court suggested two reasons why: First44—
    Conscientious southern lawyers often reason that the prejudicial
    effects on their client of raising the issue far outweigh any practical
    protection in the particular case.
    And second 45—
    Such courageous and unselfish lawyers as find it essential for
    their clients’ protection to fight against the systematic exclusion of
    Negroes from juries sometimes do so at the risk of personal
    sacrifice which may extend to loss of practice and social ostracism.
    There are other significant indications of the widespread existence of
    discriminatory exclusion. The Commission’s Black Belt study of 21
    southern counties (similar to Dallas County, Ala., and Carroll County,
    Miss., in that they have a high proportion of Negro residents, only a very
    few of whom are registered voters) reveals that Negroes never have
    served on grand or trial juries in 11 of those counties.46
    92
    A more subtle form of jury exclusion was found in the Jefferson
    County Circuit Court in Birmingham, Ala.,41 where Negroes comprise
    approximately 40 percent of the city’s population.48 A Jury Commission
    selects prospective jurors from male residents, who are required
    to be available for one week of jury service. From this group, panels
    of 24 members are provided for each trial. The Commission’s staff
    interviewed nine attorneys of both races in that city during March 1961.
    All agreed that, although some Negroes may be called for jury service, no
    more than 3, and usually less, are summoned into the courtroom as
    members of a 24-man panel. It is relatively easy to strike the Negroes
    from the panel, and this is regularly done.49 A prominent colored resident
    complained that Negroes who are called for jury service usually
    spend the entire week in the juror’s lounge without setting foot inside a
    court.50
    Somewhat the same situation appears to exist in Mississippi. On
    August 23, 1961, the New York Times reported that the issue of exclusion
    of Negroes from juries was raised in “the first Freedom Rider
    appeal trial” in the Hinds County Court in Jackson on August 22.51
    According to the article, former District Attorney Julian Alexander 52—
    . . . testified that both sides in a case usually agreed to reject
    Negroes without being charged with a challenge.
    The article concluded: 53
    In cases such as the Thomas trial, each side may reject six
    prospective jurors without cause.
    District Attorney William Waller and other lawyers testified
    they knew of no criminal trials with Negroes on the jury.
    A similar staff survey conducted in January 1961 in Baltimore, Md.,54
    revealed a different problem. The United States Supreme Court
    has made it plain that consideration of race in jury selection is unconstitutional.
    55 Baltimore, anxious to assure equal jury representation,
    keeps separate cards for white and colored prospective petit jurors for
    the city’s Criminal Courts.56 Every month the cards in each group are
    proportionately assigned to that month’s juries. The Jury Commissioner’s
    desire for fair representation is clearly well-intentioned, but this
    method of insuring proportional representation is in violation of the
    14th amendment.57
    The methods of selection of Federal and city grand juries in the
    Baltimore area presents some interesting contrasts. The Clerk of the
    United States District Court for the District of Maryland obtains the
    names of prospective jurors from sponsoring organizations and officials
    throughout the State. After about 400 persons have been
    qualified to serve, their names are placed in a box. The 23-man
    93
    grand jury is selected from the first 35 or 40 names drawn, and
    petit juries are picked from the remaining names in the box. Each year
    four Federal grand juries are chosen in this manner. The Clerk of the
    Court stated that even though selection is purely a matter of chance,
    there are always Negroes on the grand jury and that “as many as six
    or seven have served at one time.” 58
    On the other hand, seldom do more than one or two colored persons
    serve on a city grand jury at one time. This is true despite the fact that
    Negroes constitute almost 35 percent of the city’s population,59 and even
    though the judges of the Supreme Bench of Baltimore City make the
    selection of grand jurors for the city’s courts. Three times each year
    the judges, sitting in conference, nominate and discuss the qualifications
    of prospective grand jurors until 23 suitable persons have been selected.
    To obtain qualified Negro grand jurors, the judges have asked prominent
    colored persons to submit the names of likely members of their
    race. Some of the judges have stated that it is difficult, even with these
    sources, to persuade qualified Negroes to serve for several hours daily
    over a 4-month period.60 In the opinion of at least two of the colored
    leaders who have been contacted by the judges, there are competent and
    willing Negroes in sufficient numbers to increase their present representation
    on grand juries.61 This appears to be a case of token representation.
    One jury official recalled that over the past 10 years there
    had been approximately 30 grand juries; 2 have had no Negro members;
    2 have had 3 Negro jurors; and the remainder contained either 1 or 2.62
    Congress recognized the problem of discriminatory jury selection in
    the 1957 Civil Rights Act. Section 152 of that Act repealed a provision
    which had disqualified persons incompetent for jury service under State
    law from serving on Federal juries.63 The purpose of this section as
    described by Senator Church, its sponsor, is: 64
    ... to eliminate whatever basis there may be for the charge that
    the efficacy of trial by jury in the Federal courts is weakened by the
    fact that, in some areas, colored citizens, because of the operation
    of State laws, are prevented from serving as jurors. . . . There is
    no reason why Congress should not modify Federal law so as to
    safeguard against discrimination on the basis of race, color, or creed,
    in the selection of jurors who are to serve in Federal courts.
    This change freed the Federal courts from indirect racial discrimination
    in jury selection (as in Mississippi where jurors must be voters, but
    Negroes are kept from voting polls).65 It also, incidentally, allowed
    women to serve on Federal juries in States which permit only male
    jurors.66
    In spite of this legislation, it appears that some Federal officials still
    use State jury lists for obtaining names of prospective jurors.67 In i960
    94
    the Judicial Conference of the United States renewed a long-standing
    recommendation that the practice stop, noting that many State lists
    may be constitutionally suspect.68 (It cited Supreme Court decisions
    overturning Texas,69 Georgia,70 and Mississippi71 convictions because
    of the systematic exclusion of Negroes from juries.)
    THE LAW OF JURY EXCLUSION
    In 1875 Congress enacted a law prohibiting jury exclusion by reason of
    race.72 It stands today with but minor changes, as section 243 of the
    United States Criminal Code:
    No citizen possessing all other qualifications which are or may be
    prescribed by law shall be disqualified for service as grand or petit
    juror in any court of the United States, or of any State on account
    of race, color, or previous condition of servitude; and whoever,
    being an officer or other person charged with any duty in the selection
    or summoning of jurors, excludes or fails to summon any
    citizen for such cause, shall be fined not more than $5,000.
    Five years later in 1880, the Supreme Court decided two important
    cases involving exclusion of jurors by reason of race. In Strauder v.
    West Virginia,73 the Court struck down a State statute that excluded
    Negroes from jury service as a violation of the equal protection clause of
    the 14th amendment. In Ex parte Virginia,74 a criminal proceeding
    against a Virginia State judge who had engaged in discriminatory juryselection
    practices, the Court upheld the constitutionality of the Federal
    jury exclusion statute quoted above. In this case, unlike Strauder,
    it was not a statute explicitly excluding Negroes that was struck down,
    but a discriminatory practice under a statute valid on its face. The
    following year, in Neal v. Delaware,76 the Court overturned an indictment
    and conviction of a Negro for rape because Negroes had been
    excluded from both grand and petit juries. The Court also ruled that
    such exclusion of jurors by reason of race does not afford grounds for
    removing criminal cases from the State courts and conferring jurisdiction
    over them upon the Federal courts. The remedy lies rather in “the
    revisory power of the higher courts of the State, and ultimately in the
    power of review of the United States Supreme Court.” 76 This rule
    was reaffirmed by the Court in Gibson v. Mississippi, decided in 1896.77
    In all subsequent cases, the Supreme Court has dealt with administrative
    practices rather than State laws, causing exclusion of Negroes
    from juries. The Court made it clear in 1900 that it was as much a
    95
    denial of equal protection to bar racial groups from grand juries as from
    petit juries.78 For more than 30 years thereafter interest in the jury
    exclusion question seemed to subside.
    Then in 1935 in Norris v. Alabama™ (the Scottsboro case), the
    Supreme Court announced the “rule of exclusion,” which spelled out the
    pattern of proof required to establish a prima facie case of racial exclusion.
    80 The accused must prove that within the community members
    of his race (1) constitute a substantial segment of the population, (2)
    meet the qualifications for jury service, and (3) have not been summoned
    to serve over an extended period.
    The Scottsboro case had dominated the news for months. After the
    Supreme Court reversed the Scottsboro convictions, a wave of new cases
    came up for review. In these cases the Court held that when charged
    with discriminatory exclusion, jury officials could not claim ignorance of
    the existence of qualified minority group members;81 that proportional
    representation of Negroes is not required,82 and, indeed, if deliberate, is
    a denial of the equal protection of the laws;83 that the right involved is
    not a right to have members of a particular race actually represented on
    a particular jury, but only a right not to have them excluded from the
    possibility of being represented on the jury;84 that other racial minorities
    than Negroes (e.g., Mexican-Americans),85 may be the victims of constitutionally
    prohibited jury exclusion; and that, in fact86—
    ... the exclusion of a class of persons from jury service on grounds
    other than race or color may also deprive a defendant who is a
    member of that class of the constitutional guarantee of equal
    protection of the laws.
    The Court here referred to economic classes.87
    This then is the law of jury exclusion. Behind this body of law are
    two constitutional theories, both deriving from the equal protection
    clause.
    As previously noted,88 Congress has expressly forbidden racial restrictions
    in jury selection. Had Congress not done so by statute, the Constitution
    would have compelled the same result. It would not be a
    violation of the Constitution for the States to abolish grand 89 and petit80
    juries altogether from criminal proceedings. But if a State provides for
    grand or petit juries—as in fact all States do-—and thus summons
    citizens for jury service, that summons, like all State actions, is subject
    to the restrictions of the 14th amendment.91 Under the stricture against
    denials of equal protection of the laws, a State may not arbitrarily except
    a class of citizens from the summons to jury service.92 Exceptions may be
    made, but they must be reasonable ones.93 It is this last principle which,
    in part, justifies the various restrictions of age, education and literacy,
    good character, and the like.94 These qualifications, the courts have said,
    96
    bear a reasonable relation to a jury function.95 Qualifications of race,
    color, or national origin do not.
    Thus the first constitutional theory has to do with the right to serve
    on a jury. This right cannot be denied to a racially defined class.
    The second theory has to do with the right to be tried by an impartial
    jury. The Supreme Court has pointed out that “a Negro who confronts
    a jury on which no Negro is allowed to sit . . . might very well say that
    a community which purposely discriminates against all Negroes discriminates
    against him.” 96 This does not mean that every Negro accused
    is entitled to a racially representative jury.97 Such a guarantee
    would require the State to select juries on a race-basis, which is prohibited.
    98 It would also upset the whole institution of challenges, an
    integral part of the jury system. It must be remembered that the State
    simply provides a panel of persons qualified for petit jury service; the
    ultimate selection of jurors from the panel is made by the accused and
    the prosecution. Each side usually has the right to reject a specified number
    of the prospective jurors without having to give any reason for the
    rejection. This limited number of “peremptory” challenges may be
    exercised capriciously or for unworthy reasons, and such use of them
    is no grounds for objection.99 Each party is generally entitled to reject
    additional persons on the panel upon showing a good reason why the
    challenged persons could not render a fair verdict in the case. The
    right to make “peremptory challenges” and “challenges for cause” is of
    benefit to both sides. Conceivably, if the prosecution had to restrict its
    challenges so as to insure that a member of the accused’s race sat on
    the petit jury, it might well be unfairly handicapped.
    The right to an impartial jury, then, is simply the right to be tried by
    a jury selected from a panel of one’s peers which has been chosen without
    regard to race or other arbitrary classifications.
    Section 243 of the Criminal Code was principally intended as a protection
    for this right. The statute was part of post-Civil War legislation
    which recognized the hostility that was bound to exist between white
    citizens and the newly-freed Negroes.100 Its aim was to prevent such hostility
    in a community from infiltrating juries.101 But the statute is a very
    limited means to that end. It prevents only one particular external
    manifestation of racism in official conduct. It leaves untouched the
    racial sentiments of jurors, though it does open jury membership to those
    who presumably do not harbor such prejudice. It cannot guarantee that
    members of a given race will actually sit as jurors.102 It guarantees merely
    the chance of actual service on a jury, for it assures that members of one
    racial group will be proposed for such service on an equal footing with
    all other racial groups. In short, the accused is protected only against
    the unfairness of being indicted and tried by juries from which those
    persons who are least likely to bear racial prejudices against him (i.e.}
    members of his own race) has been officially barred.
    97
    It would seem to follow from these principles that a challenge by a
    criminal defendant to a jury on the ground of racial exclusion of jurors
    can only be made by a defendant who is of the excluded race or color.103
    Despite the law’s clarity on the unconstitutionality of racial exclusion,
    proof of exclusion can be exceedingly difficult—even in cases requiring
    only prima facie evidence. The required degree of proof varies with
    the nature of the proceeding. Thus, where the Government charges
    exclusion of jurors “on account of race, color, or previous condition of
    servitude” in a section 243 prosecution, it must prove its case beyond
    a reasonable doubt as in other criminal cases. When a prisoner seeks a
    writ of habeas corpus on the grounds that members of his race were excluded
    from the jury that convicted him, he must establish only “by a
    preponderance of evidence the facts which he [the prisoner] claims entitle
    him to discharge.” 104 And if one alleges before he goes to trial that
    he has been indicted or is about to be tried by such a jury, he need make
    only a prima facie showing of exclusion of members of his race from the
    jury; the burden of proof then shifts to the State.105 If the accused
    neglects to raise his objection to the jury before trial, he may be held
    to have waived his right to object later.108
    Where the excluded race comprises a substantial proportion of the
    population, a prima facie case can be established by showing a total
    absence of its members from juries over a long period of time.107 But
    in the more common case where there has been some but not total exclusion
    of a racial minority, proof becomes more difficult.
    The crucial test in identifying exclusion has been a marked disparity
    between the percentage of the minority race population in a community
    and the percentage of that race in the composition of jury panels. A
    Federal court has found discriminatory selection where only one Negro
    was summoned for jury duty over a period of 7 years, although
    Negroes comprised 10 percent of the county’s population.108 However,
    in one case involving a number of Negro petitioners who were under
    capital sentences, the Supreme Court countenanced a 7 percent Negro
    participation in jury service against a 38 percent Negro representation
    on the tax lists from which the names of prospective jurors were
    chosen;109 by the same decision the Court affirmed a conviction from a
    county where there were only 1.8 percent Negroes’ names placed in the
    jury box out of a population 47 percent colored, because it found that
    the petitioner had failed to meet certain procedural requirements in
    making his appeal.110 Three justices strongly dissented on this point.111
    And a lower court affirmed a capital conviction handed down in Baltimore
    where, over a period of years, there was a 1 to 4 percent proportion
    of colored jurors, although at the time Negroes constituted about 19
    percent of the city’s population.112 In such cases, however, the Supreme
    Court has required an explanation of the disproportionate representation.
    113
    98
    Thus, if the necessary evidence for a prima facie case of racial exclusion
    is available, the State may explain it away. Among acceptable
    “explanations” are that the minority group has a lower rate of literacy,
    fluency in English or schooling,114 or a higher incidence of criminal
    convictions, dependence upon unemployment relief or financial hardship
    resulting from absence from work.115 Among the “reasonable” juryservice
    requirements which the Supreme Court has upheld, but which
    work partly to deny a representative jury are: that the jurors own taxable
    property,116 that jurors be freeholders,117 and that jurors be registered
    voters.118 Florida,119 Mississippi,120 and South Carolina121 require
    that jurors be registered voters, and this is a valid qualification,
    provided there is no discrimination in voter registration. (Because of
    this proviso, it appears that in i960 after the reversal of Robert Lee
    Goldsby’s conviction,122 a token number of Negroes were registered to
    vote in Carroll County, Miss.123)
    Proof of jury exclusion is also complicated because evidence of the
    racial composition of past juries is often unobtainable. Jury membership
    records may not be kept, or where they are, race may not be indicated.
    And jury officials, the best source of information, are not apt to
    be enthusiastic in gathering proof that may impugn their own conduct,
    especially if they should be aware that it can be used against them in a
    criminal prosecution under section 243.
    Difficulties of proof are further compounded by the fact that as the
    more obvious practices of excluding racial groups from juries have been
    outlawed, they have gradually been supplanted by more subtle means.
    One of these more sophisticated methods already mentioned is the summoning
    of Negroes for jury service without placing them on the panels;
    the Negroes are summoned but never sit.124 Another method used to
    keep Negroes off a petit jury is agreement between counsel.125 The staff
    learned from a number of white attorneys and a Federal judge in Alabama
    in March 1961, that the prosecution (sometimes even the local
    United States Attorney) and defense counsel frequently agree to challenge
    any Negroes who appear on petit jury panels.126 And one State
    judge in the Birmingham area was reported to ask counsel as a matter
    of custom at the beginning of criminal proceedings: “Gentlemen, I
    presume you wish to exclude any Negroes from the jury.” 127 Although
    the exercise of peremptory challenges to exclude Negroes for racial reasons
    from actual jury service is perfectly legal,128 the fostering of such
    agreements by judges is not.129
    Historically, the law of jury exclusion has developed almost exclusively
    within the framework of appeals from State criminal convictions. The
    law forbidding racial discrimination in the selection of Federal jurors,
    though roughly the same, derives, not of course from the 14th amendment,
    but from the 5th, 6th, and 7th amendments 130 and from certain
    Federal statutes.131 And Federal courts can and do apply this body of
    99
    law to Federal jury selection “with greater freedom to reflect . . . [their]
    notions of good policy than . . . [they] may constitutionally exert over
    proceedings in State courts.” 132
    Moreover, the same legal principles that forbid racial exclusion of
    jurors from criminal trials, also forbid it from civil trials.133 But reported
    decisions involving racial exclusion of jurors from civil proceedings apparently
    have dealt only with Federal jury selection.134 However, the
    following language of the 5th Circuit regarding State juries is unquestionably
    a correct statement of the law:135
    The denial of the equal protection of the laws extends also to civil
    cases in which the lists of jurors are drawn from a jury box from
    which the names of Negroes have been systematically excluded.
    Thus, the right is one of broad significance closely and vitally connected
    with the proper administration of justice in both civil and
    criminal cases.
    EXISTING REMEDIES
    There are three principal ways to suppress the systematic exclusion of
    minority groups in jury selection. The first is an attack on a particular
    jury’s composition.136 The other two—injunctive suits and section 243
    prosecutions—are more direct remedies, but they have been largely
    neglected.
    The first approach occurs before trial. The defendant moves that
    the jury be stricken, charging that because members of his race have
    been excluded from the grand jury that indicted him or the petit jury
    that is about to try him, he cannot obtain a fair trial. If his motion is
    denied, he may raise the issue on appeal. And if imprisoned, he may
    petition for a writ of habeas corpus requesting his release on the same
    grounds.
    This approach has a number of disadvantages. It can inflame community
    sentiment against the accused ;137 thus, even if the motion succeeds,
    it may prejudice the next jury. Furthermore, it is a case-by-case method
    which can have only a remote effect upon the overall problem. Its
    success depends on the initiative of persons accused of crime and their
    attorneys. And attorneys are reluctant to charge discriminatory jury
    selection because of risks to themselves as well as jeopardy to their client’s
    case.138 Indeed, the consequences of this method can be unpredictable.
    There is, for example, evidence that the Mack Parker lynching in Mississippi
    in 1959,139 was a direct result of the reversal—on the grounds of
    racial exclusion of jurors—of Robert Lee Goldsby’s conviction.140
    100
    Despite these general drawbacks, an individual accused may be welladvised
    to attack discriminatory jury selection in his own case. It does
    not preclude other remedies; as suggested above,141 the burden of proof
    may be lighter; and a victory may have an educational impact on local
    officials.
    A second remedy lies in section 1983 of title 42 of the United States
    Code.142 Under this section members of the excluded minority can ask
    the local Federal district court to enjoin jury officials, under pain of
    contempt of court, from practicing racial discrimination in petit jury
    selection. (Section 1983 also permits an action for money damages.148)
    In only one reported instance was section 1983 so used.144 In that
    suit, instituted by a colored citizen in McCracken County, Kentucky,
    the court found that although some 6 years before Negroes constituted
    slightly more than 12 percent of the population, only one Negro had been
    summoned for jury service over a period of years;145 and that jury officials
    had, as a matter of custom, failed or refused to place the names of colored
    persons in the drum from which jurors were drawn or to summon Negroes
    for jury service in the McCracken County Circuit Court.146 The court
    said these facts entitled the plaintiff to an injunction,147 but since local
    officials had later “evinced a desire and willingness” to select juries without
    discrimination,148 the court retained jurisdiction of the case without
    issuing an injunction.149 The attorney who handled the case told a
    representative of the Commission that there was an immediate and
    permanent improvement in local practices. He added that he had been
    inspired to bring a section 1983 suit by Justice Jackson’s dissent in
    Cassell v. Texas.150 The Justice there said: 151
    These . . . civil remedies for discriminatory exclusions from the
    jury have been almost totally neglected ... by Negro citizens entitled
    to sit as jurors.
    * * *
    I suppose there is no doubt, and if there is, this Court can dispel
    it, that a citizen or class of citizens unlawfully excluded from jury
    service could maintain in a Federal court an individual or a class
    action for an injunction or mandamus against the state officers
    responsible. . . .
    If the order were evaded or disobeyed, imprisonment for contempt
    could follow.
    The attorney who handled the Kentucky case expressed surprise that
    others had not resorted to this simple remedy.
    Unlike the case-by-case approach, a suit under section 1983 protects
    all members of the racial group within the community and may mean
    that jury officials can continue discriminatory practices only at the risk
    of summary punishment for contempt of court. And unlike section 243
    599614—61——8 IOI
    prosecutions, described below, injunctive suits do not require, at least
    theoretically, as high a standard of proof as is required in criminal
    proceedings.152 A distinct disadvantage in injunctive suits is that they
    burden private citizens with the expense of correcting racial discrimination
    in the selection of juries.
    The third remedy is a prosecution of jury officials brought by the
    Civil Rights Division of the Department of Justice under section 243
    of the Criminal Code.153 This too is an unused remedy. In an informal
    conference in early December i960, between high-ranking Division
    officials and Commission staff members, it appeared that the
    Division had not given much consideration to bringing suits under section
    243. At a subsequent conference it was explained that this was
    due, in part, to the fact that the Division receives very few complaints
    of discrimination in the selection of jurors.154 However, the Commission’s
    staff has found that people do not complain unless they are aware
    of a remedy for the wrongs they suffer.
    Between 1950 and 1956 the Department made repeated efforts to
    obtain information on instances of jury exclusion from the United States
    Attorneys.155 But few, if any cases, have been reported by these
    sources.156 Yet over the last decade the Supreme Court has overturned
    at least six convictions on the basis of jury exclusion.157 In his dissent
    in Cassell v. Texas, Justice Jackson described section 243 as “almost
    totally neglected ... by the Federal Government.” 158 He went on to
    invite prosecutions in such cases and said that when such cases arose,
    he “would send a copy of the record to the Department of Justice for
    investigation as to whether there have been violations of the statute and,
    if so, for prosecution.” 159
    Use of section 243 would unquestionably raise problems before juries
    in certain sections of the country similar to those encountered in criminal
    prosecutions under the other Federal civil rights statutes.160 For
    though there have been no section 243 prosecutions in this century, it is
    reasonable to conclude that in communities where strong racial prejudice
    prevails the Government is likely to find it very hard to persuade
    a jury to convict a white official for discrimination against the excluded
    minority race. It is to be noted, however, that the offense defined is a
    misdemeanor, and so a prosecution under the statute could be brought
    directly to trial by use of an information without the necessity of first
    going before a grand jury to obtain indictment.161
    The merits of this third approach are at best largely speculative, for
    the only known prosecution under section 243 was brought in the late
    1870’s against a Virginia judge.162 Presumably the requirement that
    criminal cases be proved beyond a reasonable doubt would increase the
    difficulty of establishing jury exclusion. On the other hand, this remedy
    would to some extent relieve private citizens of the time and expense of
    vindicating their Federal right. The resources and expertise of the FBI
    102
    would be particularly valuable in gathering the necesSaiy evidence.163
    Finally, section 243 actions, like injunctive suits, would directly protect
    the rights of all members of the racial group within the community.
    Obviously, the three remedies are not mutually exclusive. They may
    all be employed to correct the abuse. Until now reliance has been
    placed almost entirely upon the first, and in many ways, weakest approach.
    Perhaps additional attention to the other two remedies would
    help eliminate racial exclusion from juries, at least in its more flagrant
    manifestations.
    SUMMARY
    More than 80 years ago the Supreme Court said: 164
    The very fact that colored people are singled out and expressly
    denied by a statute all right to participate in the administration of
    the law, as jurors, because of their color, though they are citizens
    and may be in other respects fully qualified, is practically a brand
    upon them, affixed by law; an assertion of their inferiority, and a
    stimulant to that race prejudice which is an impediment to securing
    to individuals of the race that equal justice which the law aims
    to secure to all others.
    The practice of racial exclusion from juries persists today even though
    it has long stood indicted as a serious violation of the 14th amendment.
    As a result, the bar of race and color is placed at the only gate through
    which the average citizen may enter for service in the courts of justice.
    In some areas at least, only the Federal Government can resolve this
    grave problem.
    103

    8. Conclusions
    There is much to be proud of in the American system of criminal justice.
    For it is administered largely without regard to the race, creed, or color
    of the persons involved. Most officials at all levels attempt to perform
    their duties within the bounds of constitutionality and fairness. Most
    policemen never resort to brutality, thus providing constant proof that
    effective law enforcement is possible without brutality. And the great
    majority of American policemen have an excellent record of successfully
    discouraging mob violence against minority group members. This
    record shows that policemen who make it clear that they will not tolerate
    vigilante violence can prevent that violence.
    Unfortunately, this is not the whole story. The Commission is concerned
    about the number of unconstitutional and criminal acts committed
    by agents of American justice who are sworn to uphold the law and to
    apply it impartially. Perhaps the most flagrant of these acts is the illegal
    use of violence. Indeed, a comprehensive review of available evidence
    indicates that police brutality is still a serious and continuing problem.
    When policemen take the law into their own hands, assuming the roles
    of judge, jury, and, sometimes, executioner, they do so for a variety of
    reasons. Some officers take it upon themselves to enforce segregation or
    the Negro’s subordinate status. Brutality of this nature occurs most often
    in those places where racial segregation has the force of tradition behind
    it. Other types of unlawful official violence are unrelated to race or
    region. In Florida’s Raiford Prison, recently, guards took the occasion
    of minor rules infractions to subject prisoners of both races to inhuman
    treatment. Perhaps the most frequent setting for brutality is found in
    the initial contact between an officer and a suspect. The fact that an
    officer approaches a private citizen and seeks to question him, to search
    him, or to arrest him, creates a tense situation in which violence may
    erupt at any moment. The use of brutality to coerce confessions appears
    to be diminishing but has not disappeared.
    Complete statistics on the subject of police brutality are not available,
    but the Commission’s comprehensive survey of records at the Department
    of Justice suggests that although whites are not immune, Negroes
    feel the brunt of official brutality, proportionately, more than any other
    group in American society.
    105
    The Commission has been concerned with another serious (although
    far less widespread) dereliction of duty by American police officers—
    condonation of or connivance in private violence. Although this practice
    appears to be on the wane, it has not been totally abandoned. The
    most recent victims were the “Freedom Riders” in Alabama. There are
    American citizens in the Deep South today who live in fear, partly because
    they do not know if local policemen will help them or the mob
    when violence strikes.
    On the other hand, it is encouraging for the Commission to report
    that lynching, another form of mob violence which frequently involved
    police assistance, may be extinct. Yet, the threat lives on in the memory
    of many Negroes.
    While the discriminatory exclusion of Negroes and other minority
    groups from juries has diminished during the past century, this badge of
    inequality persists in the judicial systems of many southern counties.
    By and large, frustration and defeat face the victim of these unconstitutional
    practices who seeks redress—for he rarely is able to obtain
    immediate or effective relief. A victim of these unconstitutional practices
    may bring action in a State court to recover money damages from
    the brutal policeman. The record indicates that the prospects for a
    verdict for the complainant in such suits are greater than in other forms
    of court action either at the Federal or State level. However, most
    victims do not commence legal action against brutal policemen, and one
    of the severe drawbacks of such litigation is that even if a plaintiff overcomes
    the difficulties of trial and is awarded a money judgment, most
    municipalities are not liable for their officers’ misconduct, and the policemen
    themselves rarely have funds to satisfy a substantial money judgment.
    The victim of brutality may also request a local prosecutor to bring
    criminal action in a State court against the policemen. For policemen,
    like ordinary citizens, are subject to criminal penalties ranging from
    jail or fines for simple assault and battery up to the death penalty for
    first degree murder. Such prosecutions may have a deterrent effect on
    police misbehavior, but they are rare.
    In addition to these State and local avenues of redress there are the
    Federal Civil Rights Acts, providing both civil and criminal remedies.
    But suits in Federal courts under these Acts are few and usually unsuccessful.
    The civil statutes offer the advantage of allowing the victim himself
    to commence action for money damages against officers who have
    violated his constitutional right. In a recent 2-year period, however,
    only 42 Federal civil suits were filed based on police brutality allegations,
    and none of them were successful. In a recent 2%-year period the
    Department of Justice authorized criminal prosecutions in 52 police
    brutality matters, During the same period, six prosecutions were suc-
    106
    cessful. It is probable that during these periods thousands of acts of
    brutality were committed in this country.
    There are certain inherent difficulties in suits which seek redress for
    acts of violence. The victim is often ignorant of remedies for police
    misconduct and loath, because of lethargy or fear, to report violations
    to responsible authorities. Even where suit is brought, there are obstacles
    to successful prosecution. There are frequently no witnesses and little
    concrete evidence to corroborate the complainant’s story; the police
    officer usually makes a more believable witness than the complainant;
    and the jury is often hostile to a civil rights suit in Federal court against
    a local policeman. The Commission believes, however, that the Department
    of Justice by taking the initiative in seeking out information
    and, in appropriate cases, by instituting prosecutions might make the
    Federal Civil Rights Acts more effective instruments—despite these
    inherent difficulties.
    Victims of civil rights violations sometimes assume that Federal officers
    are closely linked with local policemen. They may, therefore, be reluctant
    to report unlawful violence or to sign complaints. They fear
    that complaints either will be useless or will result in retaliation by the
    local policemen. It is, of course, essential that the FBI have the cooperation
    of thousands of local policemen to carry out its investigative
    mission under a long list of Federal criminal statutes not related to civil
    rights. Investigations of police brutality complaints may, therefore,
    place FBI agents in an exceedingly delicate position.
    The Department of Justice policy of deference to State authorities is
    another problem in Civil Rights Acts prosecutions. When State authorities
    take steps to prosecute local law officers for acts of brutality, the
    Civil Rights Division of the Department suspends both investigation and
    prosecution. While this practice may satisfy the States, where State
    action proves ineffective, Federal investigation and prosecution has sometimes
    been made impractical by the passage of time.
    When such a case does get into court, U.S. attorneys represent the
    Federal Government. Some U.S. attorneys have displayed unfamiliarity
    with the complex case law that has developed around the Federal
    Civil Rights Acts. Indeed, a few attorneys have displayed open hostility
    to Civil Rights Acts prosecutions.
    There may also be other difficulties in obtaining an indictment.
    Grand juries in some places refuse to return indictments under the Civil
    Rights Acts even in the most heinous of cases; in a recent 2 /2-year period
    grand juries refused to indict in at least 16 of the 43 police brutality cases
    the Department of Justice filed in court. But the grand jury is not a
    necessary step. The Federal Government prosecutes brutal officers under
    section 242 of the United States Criminal Code, and since that
    statute defines only a misdemeanor, action may be taken by way of information
    (a sworn statement setting out the specific charges against
    107
    the defendant) as well as by grand jury indictment. Prosecution was
    initiated by information in one case, brought in the early 1940’s. It
    was successful.
    Other difficulties in the prosecution of Federal criminal suits under
    the Civil Rights Acts arise from the 16-year-old Supreme Court decision
    in Screws v. United States. It was there held that to sustain a prosecution
    under section 242 the Government had to prove that the officers had
    the “specific intent” to violate the constitutional rights of the victim. If
    the officers merely had the general criminal intent to hurt him, the Supreme
    Court explained, this would not be sufficient for a conviction
    under the Federal statute. This requirement is onerous. It accounts
    for some of the hesitancy of the Department of Justice to authorize
    prosecutions, and of juries to render guilty verdicts. Remedial action
    by Congress is necessary to make Federal criminal prosecutions effective
    deterrents to unlawful police violence.
    The most important remedies for improper police practices, however,
    lie in preventive measures on the local level. There is concrete evidence
    that when a police commander indicates that he will not tolerate brutality
    or other illegal practices, these practices cease. Atlanta and
    Chicago, among other cities, provide examples of how positive and enlightened
    leadership in the police department can reduce the incidence
    of unlawful police violence. By the same token, the available evidence
    indicates that some policemen have interpreted permissive leadership as
    a license for brutality. Leadership may also have an impact on private
    violence with police connivance, as dramatically illustrated by recent
    events in Alabama and conversely, by the less dramatic but positive work
    of community leaders in Atlanta and, subsequent to the 1957 disturbances,
    in Little Rock.
    Proper recruit selection standards may also reduce police misconduct.
    Such standards are nonexistent in some departments; others are
    attempting improvement of psychological tests to weed out those recruits
    prone to violence. Training programs in human relations and in
    scientific police techniques are also important factors in the prevention
    of violent invasions of rights by policemen.
    In 1880 the Supreme Court declared for the first time that the discriminatory
    exclusion of otherwise qualified citizens from jury panels
    was a violation of the equal protection clause of the 14th amendment.
    In the ensuing years the Supreme Court has reiterated that ruling time
    and time again. It is also a Federal crime for any official to disqualify
    a citizen for jury service because of his race, color, or previous condition
    of servitude. One of the Civil Rights Acts (section 243) passed in
    1875 makes such action punishable by a fine of $5,000. But in some
    counties the practice of jury exclusion is an enduring institution, and the
    initiative for challenging this patently unconstitutional practice has
    been left by default to private citizens. Apparently, the Department
    108
    of Justice has brought only one successful section 243 prosecution, and
    this was in the late 1870’s. The jury exclusion issue is raised most
    often by Negro defendants convicted by all-white juries. Recently,
    however, a colored citizen of McCracken County, Kentucky, sought an
    injunction under one of the Civil Rights Acts to prevent jury officials
    from excluding Negroes. This action apparently has resulted in the
    elimination of unconstitutional jury exclusion in that county.
    There can be no reasonable dissent to the proposition that all Americans,
    regardless of race, creed, color, or national origin, are entitled to
    equal justice under law. Police brutality, connivance in private violence,
    and exclusion of minorities from jury service violate ideals of fair
    play fundamental to a free society. All three are contrary to our
    Constitution and our heritage.
    FINDINGS
    Unlawful official violence
    1. The actions of most policemen demonstrate that effective law enforcement
    is possible without the use of unlawful violence.
    2. Nonetheless, police brutality by some State and local officers presents
    a serious and continuing problem in many parts of the United
    States. Both whites and Negroes are the victims, but Negroes are the
    victims of such brutality far more, proportionately, than any other group
    in American society.
    3. While police connivance in violence by private persons is becoming
    less of a problem than in the past, such denials of equal protection still
    occur.
    4. American citizens in some places live in fear of police violence and
    of mob violence with police connivance.
    5. State and local officials—police commanders, prosecutors, and
    others in positions of authority—who have the immediate responsibility
    and most effective means for preventing such abuses sometimes do not
    use their powers. Police commanders at times take a protective attitude
    toward miscreant officers, and local prosecutors rarely bring criminal
    actions against them.
    The professional quality of State and local police forces
    6. The most effective “remedies” for illegal official violence are those
    that tend to prevent such misconduct rather than those which provide
    109
    sanctions after the fact. The application of professional standards to
    the selection and training of policemen is one such preventive measure.
    7. Complaints rarely are made against Federal police agents, in part
    because these officers have had professional training and have been
    selected according to professional standards.
    8. The professional level is high in some State and local police forces
    also, but in many others it is low due to low pay, ineffective recruit
    selection standards and ineffective training programs.
    9. The establishment of professional standards for police forces can
    be aided by such positive programs as good pay, high recruit selection
    standards, and training in scientific crime detection, in human relations,
    and in police administration. These programs would be encouraged by
    Federal financial assistance to police departments that seek the development
    of more effective selection standards and training courses.
    Federal criminal remedies for unlawful official violence
    10. Although many acts of violence by policemen are violations of
    constitutional rights and of Federal statutes, the Federal criminal sanctions
    for such misconduct have not proved to be effective remedies.
    This is due to difficulties inherent in the cases such as the problem of
    proof; to the policies and procedures of the Department of Justice;
    and to weaknesses of the statutes.
    11. Among the policies and procedures of the Department of Justice
    that have hampered Federal criminal prosecutions for unlawful official
    violence have been excessive reliance on signed complaints from aggrieved
    individuals despite the fact that many victims of police misconduct
    are unaware of their rights, or fearful to press them; a tendency to
    close some cases without complete investigation; and deference to State
    authorities which results in withholding any investigation pending State
    action even at the risk of allowing evidence to grow stale.
    12. FBI agents, charged with the duty of Civil Rights Acts investigations,
    are sometimes placed in a difficult position when they must
    investigate allegations of misconduct against local policemen. The cooperation
    of local officers is essential to the FBI in investigating and
    apprehending those who violate Federal criminal statutes not related
    to civil rights. Moreover, victims and witnesses of police misconduct
    are sometimes hesitant to give information to Federal authorities because
    of the cooperative relationship between the FBI and local policemen.
    13. Since section 242, the principal criminal Federal Civil Rights
    Act, defines only a misdemeanor, prosecution can be instituted by information
    (a sworn statement setting out the specific charges against the
    defendant) as well as by grand jury indictment. The former method
    avoids the delay and the hazard of one more hostile jury, involved in
    a presentment to a grand jury, and allows the facts to be brought to the
    no
    attention of the affected community in a public trial. An information
    has been used by the Department of Justice only once and then successfully.
    14. Difficulties also arise from the language of section 242, as interpreted
    by the Supreme Court in Screws v. United States. The requirement
    of “specific intent”—as opposed to the usual general criminal
    intent—for conviction under the statute severely limits the statute’s
    applicability. Moreover, there is confusion among judges, jurors, and
    lawyers as to the meaning of “specific intent.” Some Federal trial
    judges have issued instructions to juries which seem to interpret “specific
    intent” more narrowly than is required by the Screws decision.
    15. A more specific statute supplementary to section 242 spelling out
    certain conduct proscribed by the 14th amendment would more effectively
    protect the constitutional right to security of the person against
    official misconduct.
    Federal civil remedies for unlawful official violence
    16. The Federal Civil Rights Acts providing civil liability for unlawful
    official violence have not proved to be effective remedies. Relatively
    few suits are filed under the principal civil statute, section 1983, which
    allows suits by the victims of police brutality against officers for monetary
    damages. Successful suits are rare.
    17. One deterrent to the filing of civil suits is the fact that even if a
    victim of official violence sues successfully, few police officers are able
    to satisfy a substantial money judgement. This can be corrected by
    an amendment to section 1983 which would render counties, cities, and
    other local governmental entities liable for the misconduct of their
    *policemen.
    Discriminatory exclusion of minority groups from jury service
    18. The practice of excluding Negroes from juries on account of
    their race still persists in a few States. The burden of combating such
    racial exclusion from juries now rests entirely on private persons—almost
    invariably defendants in criminal trials.
    * Lincoln County v. Luning, 133 U.S. 529 (1890); Hopkins v. Clemson
    Agricultural College, 221 U.S. 636 (1911); Frame v. City of New York, 34
    F. Supp. 194 (S.D.N.Y. 1940). Some States have statutes providing that the
    victims of mobs may sue the State in local courts for damages so incurred.
    An example is Ill. Rev. Stat., ch. 38, secs. 512-517 (1959). It is doubtful
    if liability could be extended by Congressional action to State governments.
    Hans v. Louisiana, 134 U.S. 1 (1890); Palmer v. Ohio, 248 U.S.
    32, 34 (1918); In re State of New York, 256 U.S. 490, 497 (1920); Monaco
    v. Mississippi, 292 U.S., 313, 328-30 (1934).
    Ill
    19. Only criminal remedies are available to the Federal Government
    to combat unconstitutional jury exclusion. The Federal Government
    has successfully invoked a criminal statute only once, in the late 1870’s.
    20. Civil actions instituted in the name of the United States would
    constitute a more effective method of preventing discriminatory exclusion
    from juries.
    RECOMMENDATIONS
    The professional quality of State and local police forces
    Recommendation 1.—That Congress consider the advisability of enacting
    a program of grants-in-aid to assist State and local governments, upon
    their request, to increase the professional quality of their police forces.
    Such grants-in-aid might apply to the development and maintenance of
    (1) recruit selection tests and standards; (2) training programs in scientific
    crime detection; (3) training programs in constitutional rights
    and human relations; (4) college level schools of police administration;
    and (5) scholarship programs that assist policemen to receive training
    in schools of police administration.
    Federal criminal remedies for unlawful official violence
    Recommendation 2.—That Congress consider the advisability of enacting
    a companion provision to section 242 of the United States Criminal
    Code which would make the penalties of that statute applicable to those
    who maliciously perform, under color of law, certain described acts
    including the following:
    (1) subjecting any person to physical injury for an unlawful purpose;
    (2) subjecting any person to unnecessary force during the course
    of an arrest or while the person is being held in custody;
    (3) subjecting any person to violence or unlawful restraint in the
    course of eliciting a confession to a crime or any other information;
    (4) subjecting any person to violence or unlawful restraint for the
    purpose of obtaining anything of value;
    (5) refusing to provide protection to any person from unlawful violence
    at the hands of private persons, knowing that such violence
    was planned or was then taking place;
    (6) aiding or assisting private persons in any way to carry out acts of
    unlawful violence.
    112
    Federal civil remedies for unlawful official violence
    Recommendation 3.—That Congress consider the advisability of amending
    section 1983 of title 42 of the United States Code to make any
    county government, city government, or other local governmental entity
    that employs officers who deprive persons of rights protected by that
    section, jointly liable with the officers to victims of such officers’ misconduct.
    Exclusion of minority group members from jury service
    Recommendation 4.—That Congress consider the advisability of empowering
    the Attorney General to bring civil proceedings to prevent the
    exclusion of persons from jury service on account of race, color, or national
    origin.
    113

    Part VIII. The American Indian
    1. Introduction
    In the foregoing parts of this Report, the Commission has considered the
    extent to which minority groups, particularly Negroes, suffer from denial
    of civil rights. In a more limited fashion, this part will deal with similar
    problems faced by the American Indian.
    At its California hearing in January of i960, the Commission heard
    testimony to the effect that Indians in that State were deprived of their
    rights because of race. On the basis of that testimony, the Commission
    initiated an inquiry to determine how serious and extensive the alleged
    deprivations were for all Indians.
    Within a short time the Commission discovered that, though the
    number of Indians is not large compared to the number of Negroes, their
    problems are extremely and uniquely complex. Because the Commission’s
    time and staff were committed to other inquiries, no comprehensive
    study of Indian affairs was possible. Moreover, it soon became apparent
    that, while Indians are deprived of civil rights in many areas of Commission
    concern, much of their difficulty is outside the explicit scope of the
    Commission’s jurisdiction.
    This is a limited study of the extent to which Indians suffer from
    a denial of civil rights falling within the purview of the Commission’s
    jurisdiction. Because Indians have a unique status, and because their
    civil rights problems cannot be fully understood without some discussion
    of why and how the Indian problem is unique, the study first touches
    on the highlights of the history of the American Indian in his relations
    with the Federal Government. The next chapter analyzes his current
    legal status. The remaining chapters deal with his civil rights in each
    area of Commission concern.
    The citizen with a difference
    If American Indians are a minority, they are a minority with a difference.
    Of course Indians face problems common to all minorities—jobs,
    homes, and public places are not as accessible to them as to others.
    115
    Poverty and deprivation are common. Social acceptance is not the
    rule. In addition Indians seem to suffer more than occasional mistreatment
    by the instruments of law and order both on and off the reservation.
    Yet to think of the Indian problem solely in terms of bias, discrimination,
    or civil rights would be a mistake. For unlike most minorities,
    Indians were and still are to some extent a people unto themselves, with
    a culture, land, government, and habits of life all their own.
    When Columbus discovered America, there were approximately
    900,000 Indians in some 300 tribes in the area that was to become the
    United States. By 1880 the Indian population had dwindled to
    243,000. Today some 360,000 Indians live on more than 300 reservations
    supervised by the Federal Government. The total number of
    Indians in the United States including those who live off reservations
    is estimated at 520,000? There are now an estimated 263 tribes living
    in 25 States.2 Thus Indians are not a vanishing race.
    Since the Indian Citizenship Act of 1924,3 all Indians born within
    the territorial limits of the United States are automatically citizens of
    the United States. By virtue of the 14th amendment, they are also
    citizens of the States in which they reside. In principle, then, Indians
    have all the rights and privileges of citizenship. Their right to vote,
    though occasionally contested, is now reasonably well-established. They
    face fewer problems on this score than do many Negroes. Among the
    other rights Indians share with all Americans are freedom of movement.
    Those who stay on reservations do so by choice and not by legal
    compulsion.
    Still, Indians differ from other minority groups in three principal ways:
    (1) they have a strong tendency to preserve their separate cultures and
    identities, a tendency symbolized in part by the reservation. While this
    drive by itself is not unique—other minority groups live in separate
    quarters and not always unwillingly—it has elements of form and substance
    peculiar to Indians alone; (2) they are a quasi-sovereign people,
    enjoying treaty rights with the Federal Government, land set aside for
    their exclusive use, and Federal laws applicable only to them; (3) another
    important distinguishing factor is the quasi-dependent relationship
    of Indians to the Federal Government.
    The fulcrum on which these differences turn is land. It is land most
    of all that binds Indians together and sustains expression of tribal culture
    and “sovereignty.” Without land it is hard to imagine how Indians
    could have survived as a separate people. Thus, Federal policy toward
    Indian land has played a decisive role in determining the Indian’s fate.
    The struggle for Indian land
    From the beginning land has been the prime issue in the successive contests
    between white men and Indians. The European and the red man
    looked upon land differently. To the white man, it was a merchant-
    116
    able quantity, something to be owned, developed and improved, bought
    and sold.
    The Indian, on the other hand, thought of land as an integral part
    of nature to be used to sustain those who lived on it. Above all, it was
    not merchandise; it could be occupied, hunted, toiled, but not sold or
    transferred. Land was the common possession of the tribe to be used
    for common purposes as long as common purposes remained. It was
    not susceptible, therefore, to ownership, or alienation by the individual.
    In the early years, land acquisition by the colonist did not strain
    Indian-white relationships. There was enough to go around. Moreover,
    the hunting and food gathering habits of some tribes did not lend
    themselves to permanent settlement. This reduced resistance to land
    cessions. Hence the pressure to settle fundamental questions of ownership
    did not arise at once. Yet as settlements grew, Indian resistance
    stiffened, and the question became crucial.
    Jurists supplied the legal answer by resorting to the “law” of discovery.
    Indians were admitted to be the “rightful” occupants of the
    soil with just claim to retain possession of it and use it in their own ways.
    But their power to dispose of the land, at their own will, to whomsoever
    they chose was denied “by the original fundamental principle that discovery
    gave exclusive title to those who made it.” So reasoned Chief
    Justice Marshall in Johnson and Graham’s Lessee v. M’IntoshJ Yet
    even so renowned a legal architect as Marshall seemed to find the
    “law” of discovery an ambiguous support for the white man’s claims: 6
    Although we do not mean to engage in the defense of those principles
    which Europeans have applied to Indian title, they may, we
    think, find some excuse, if not justification, in the character and
    habits of the people whose rights have been wrested from them.
    The historical answer was supplied by settlers, statesmen, adventurers,
    railroaders, homesteaders, cattlemen, miners, prospectors, and sheepherders—
    all that went into the continued, relentless movement westward
    that finally “settled” the continent. The drive had its own nomenclature,
    “manifest destiny,” “progress,” “civilization.” It would
    be hard to say it should not have happened. Indeed, it is difficult to
    see how it could have been stopped, even if it should have been. The
    story of the American Indian then, is the story of an uneven contest
    between two civilizations—the one acquisitive and unrelentingly expansionist;
    the other, by comparison, static. It is an ironic story when one
    considers the high aims and ends, freedom, justice and opportunity,
    which have always been part of the American political tradition. If
    the extension of European influence in the New World was inevitable
    as some claim, so was the outcome. As DeTocqueville remarked in
    1835, “The ruin of these Indian nations began from the day when
    Europeans landed on their shores; it has proceeded ever since . . .” 8
    599614—61------9 1 17
    Early colonists may not have felt as certain of success as DeTocqueville
    suggests. There was no “master plan” for settlement and expansion.
    The New World was largely an unknown quantity. Colonizing was a
    competitive affair with various European nations and mercantile interests
    vying for advantage in a contest that sometimes placed the Indian
    in a favorable strategic posture.
    The policies of various European colonizers toward the Indians differed
    and the difference was in part attributable to divergent purposes.
    Hampered by a feudal system of land tenure that discouraged permanent
    settlement, the French were primarily traders and, as such, were able to
    establish better relations with the Indians. The English, on the other
    hand, wanted lasting settlements and, therefore, posed a more serious
    threat.
    Yet the English were not brutish. Their policy was a cautious blend
    of conscience, strategy and self-interest. Though there were many swindles,
    and much land speculation, official policy was to prevent the “unauthorized”
    appropriation of Indian lands. Lord Baltimore in 1635
    and William Penn in 1682, though each possessed royal grants, nonetheless
    sought to extinguish Indian “title” by fair purchase. Moreover,
    as early as 1656, land areas were set aside by some colonial governors
    for the exclusive use of Indians.
    In spite of such official efforts, unauthorized entry upon Indian land
    persisted and became a constant source of friction between the English
    and the Indians. The policies of colonial governors were not uniform
    and were often ineffectively enforced so that Indians were frequently
    cheated. Friction was encouraged by the French who lost no opportunity
    to stress the danger of continued English encroachment.
    Partly because of the ineffectiveness of English land policies, and
    largely because of the threat that permanent occupation posed, most
    Indian tribes joined the French against the English in the French and
    Indian War. With the defeat of Montcalm and the surrender of
    Quebec the English were left supreme.
    Disturbed by the hostility of the Indians the King of England issued
    a Royal Proclamation in 1763 that prohibited the granting of land
    patents unless Indian title had been extinguished by purchase or treaty.
    The Proclamation also reserved for tribal use “all Lands and Territories
    lying to the Westward of the sources of rivers which fall into the sea from
    the West and Northwest.” In effect, the Appalachians were established
    as the boundary of westward expansion. But thousands of settlers
    violated that boundary during and after the American Revolution
    without regard for policy, agreement, or treaty.7
    The birth of the new Republic changed little for the Indians. The
    Federal Government tried at the outset to follow the policy laid down
    by the English. It recognized Indian rights to lands they occupied and
    laid down the principle that Indian land could not be acquired without
    118
    Indian consent. As stated in the Northwest Territory Ordinance of
    1787:8
    The utmost good faith shall always be observed toward Indians,
    their lands and property shall never be taken from them without
    their consent; and, in their property, rights and liberty, they shall
    never be invaded or disturbed, unless in just and lawful wars authorized
    by Congress; but laws founded in justice and humanity shall
    from time to time be made, for preventing wrongs being done to
    them, and for preserving peace and friendship with them.
    Despite the expression of good faith, the westward push would not be
    denied. The new Government found itself unable and sometimes unwilling
    to cope with it.
    Recognition of the Indians’ right to occupy land until title was extinguished
    lawfully, a right spelled out in the numerous treaties as well
    as the Northwest Ordinance, proved an irksome obstacle. Many Indian
    tribes refused to make further cessions. Among those pressing for
    a change of policy was Andrew Jackson. In a letter to President Monroe,
    Jackson, one of the Commissioners appointed to negotiate the purchase
    of Indian lands (a Commission that failed), said:9
    I have long viewed treaties with the Indians an absurdity not to be
    reconciled to the principles of our Government. The Indians are
    subjects of the United States, inhabiting its territory and acknowledging
    its sovereignty, then is it not absurd for the sovereign to
    negotiate by treaty with the subject?
    Thirteen years later in 1830 Congress passed, and President Jackson
    signed, the Indian Removal Act,10 expressing a major change in policy.
    The purpose was to transfer Indian tribes across the Mississippi. In
    exchange and as part payment for the lands they had previously occupied,
    Indians were granted perpetual title to the territory west of the river, an
    area which then seemed far enough removed to obviate the danger of
    future conflict.
    Removal of northern tribes presented no difficulty. Most were small
    in number, had been weakened by years of conflict or had left voluntarily.
    But the southern tribes, the Cherokees, Choctaws, Creeks, Chickasaws,
    and Seminoles (known collectively as the Five Civilized Tribes),
    resisted. Large and powerful, with permanent homes, farms, and large
    herds of livestock, they were reluctant to move.11
    Despite the pleas of the Indian tribes and their friends in and out
    of Congress, removal was effected in many cases by force. Troops were
    sent into Alabama and Georgia to escort Indians to the newly constituted
    “permanent” Indian territory—now the State of Oklahoma.
    Most of the Seminoles left only after bitter intermittent warfare which
    lasted from 1835 to 1842. But the lands west of the Mississippi were
    not as remote as had been supposed. The annexation of Texas, acquisition
    of New Mexico and California and the discovery of gold, brought
    a steady surge of white men through the last of the Indian country.
    For three decades after 1850 a series of sporadic wars broke out on the
    western plains and did not abate until the Indian was effectively
    removed as a burr to westward expansion.
    Changes in Federal policy
    From the birth of the Republic on through the push westward, the
    major question was what to do with what DeTocqueville described as
    colonies of troublesome strangers amidst a numerous and dominant people.
    12 The alternatives were neatly posed by Henry Knox in a letter
    to George Washington in 1789.13 The first was to wipe them out.
    Knox rejected this on the ground that it violated the “principles of justice
    and the laws of nature.” He thought it wise for a new nation,
    anxious to put its best foot forward, to refrain from injuring a neighbor
    community. The second and recommended alternative was to make
    treaties with them by which Indian rights and territories would be explicitly
    defined. Until the late 1800’s treatymaking was the basic
    policy of the United States. Treaty breaking was the practice.
    Many agreed with Andrew Jackson in rejecting the treaty approach.
    Proponents of a tough Indian policy invariably based their arguments
    on the superior rights of civilized men. As in the case of the slaves,
    the necessary corollary was always added—that Indians were savages
    and could not be civilized. As late as 1872, Francis Walker, Commissioner
    of Indian Affairs, expressed it this way: 14
    There is no question of national dignity, be it remembered, involved
    in the treatment of savages by a civilized power. With
    wild men, as with beasts, the question whether in any given situation
    one shall fight, coax, or run, is a question of what is easiest
    and safest.
    Walker went on to add that no one would rejoice more heartily
    than he when the last hostile tribe “becomes reduced to the condition
    of suppliants for charity.”
    If treatymaking was the most realistic means of dealing with the
    Indians, at least until the West was conquered, it did not dispose of
    the dilemma suggested by DeTocqueville’s “colonies of strangers.” On
    the contrary, the treaty recognized and sustained the separate status of
    Indians, a status later confirmed in Worcester v. Georgia,15 which
    described Indian tribes as “distinct, independent, political communities”
    120
    with rights of self-government. This description stands intact as a matter
    of law. The dilemma was compounded by the fact that the “independent
    communities” were of a special sort. In Cherokee Nation v.
    Georgia,1* the Supreme Court dismissed a contention that Indian tribes
    were foreign nations and described them as “domestic dependent nations”
    bearing a relationship to the Federal Government like that of a
    ward to a guardian. In explaining the resemblance, Marshall said: 17
    They look to our Government for protection; rely upon its kindness
    and its power; appeal to it for relief to their wants; and address
    the President as their great father. They and their country are
    considered by foreign nations, as well as by ourselves, as being
    so completely under the sovereignty and dominion of the United
    States, that any attempt to acquire their lands, or to form a political
    connection with them, would be considered by all as an
    invasion of our territory and an act of hostility.
    It was this double condition of sovereignty and “wardship” which,
    in view of some, caused increasing “difficulties and absurdities.”
    One of the difficulties was that Indians still “owned” large tracts
    of land defined and protected by the obligations of treaty. And it was
    land that many Americans still coveted. As Caleb B. Smith, Secretary
    of the Interior, observed in 1862: 18
    The rapid progress of civilization upon this continent will not
    permit the lands which are required for civilization to be surrendered
    to savage tribes for hunting grounds. Indeed, whatever may be
    the theory, the Government has always demanded the removal of
    the Indians when their lands were required for agricultural purposes
    by advancing settlements.
    The abandonment of treaties.—Those who believed that treaties with
    Indians were an absurdity finally prevailed. In 1871 Congress declared
    that “thereafter,” no Indian nation or tribe “would be recognized as
    an independent power with whom the United States may contract by
    treaty.” 19 This did not solve the Indian problem. Colonies of Indians
    remained strangers among the numerous and dominant people. It had
    been wistfully hoped, throughout the years, that Indians would somehow
    become more “civilized” that is, “more like us.” But the contrary
    seemed to be true. Pressed on every side, their reservations became
    islands of retreat (and sometimes of confinement) in the turbulent ocean
    of progress. Or so it seemed. In any event pressure for disposing of
    the Indian dilemma “once and for all” in fell-stroke style led to the
    passage of the General Allotment Act of 1887,20 a most radical departure
    from past policy.21
    121
    The General Allotment Act.—By 1887 most Indian tribes were settled
    on lands outside the main streams of traffic, lands that had been reserved
    for them mostly by treaty, sometimes by executive order or act of Congress.
    The strategy of the allotment approach (apart from the acquisition
    of more land) was to civilize the Indian by breaking up the reservations
    and granting land to individual Indians on a systematic basis.
    Private ownership and all that went with it would serve the purpose. As
    Carl Schurz, then Secretary of the Interior, argued “The enjoyment and
    pride of the individual ownership of property is one of the most effective
    civilizing agencies.” 22
    There were those who opposed the whole scheme. Senator Teller
    of Colorado characterized it as a device calculated “to despoil the Indians
    of their lands and to make them vagabonds on the face of the
    earth.” 23 He prophesied that in 40 years Indians would have been
    parted from their titles and would then “curse the hand that was raised
    professedly in their defense.” 24 Teller felt that the people who were
    clamoring for “allotment” would sing a different tune if they really
    understood Indian laws, morals, and religion. A minority report on
    legislation similar to the Allotment Act observed that: 25
    ... it does not make a farmer out of an Indian to give him a
    quarter section of land. There are hundreds of thousands of white
    men, rich with the experience of centuries of Anglo-Saxon civilization,
    who cannot be transformed into cultivators of the land
    by any such gift. The real aim of this bill is to get at the Indian
    lands and open them up for settlement. ... If this were done in
    the name of Greed, it would be bad enough; but to do it in the
    name of Humanity, and under the cloak of an ardent desire to
    promote the Indian’s welfare by making him like ourselves, whether
    he will or not, is infinitely worse. . . .
    The act’s salient features authorized the President to dispose of tribal
    lands in specified amounts—160 acres of grazing land or 80 acres of
    agricultural land to the head of a family; one-half of the above amount
    to a single person over 18, or an orphan child under 18. If the Indian
    refused to take his allotment, the Government would select for him.
    Title to the allotted land would remain with the Government to be held
    in trust for 25 years or more at the discretion of the President. Citizenship
    was conferred on the allottees (by later amendment, citizenship was
    deferred until the trust period expired) ,26 and surplus lands remaining
    after allotment were subject to purchase by the United States.
    When the Allotment Act was passed in 1887 Indians owned in one
    form or another about 140 million acres of land. In 1890 alone some
    17.4 million “surplus” acres—about one-seventh of all Indian land—
    were purchased by the Federal Government under the Allotment Act
    122
    and opened to non-Indian homesteaders.27 In the next 45 years, 90
    million acres,28 including some of the best grazing, farming, and forest
    lands, passed out of the collective or individual control of Indians.
    What had been intended as a “civilizing” agent, produced a generation
    of landless, impoverished Indians, shorn of the social cohesiveness of
    tribal culture.
    In 1928 the Meriam Report,29 authorized by the Department of the
    Interior, found that most Indians were poor, ill-housed, in bad health
    (tuberculosis was present to an alarming degree), backward, discontented,
    and apathetic. A major cause according to the report lay in
    the Allotment Act and its swift, across-the-board application to all
    tribes whether prepared for it or not.
    The Indian Reorganization Act.—By the early thirties congressional
    recognition of the ruinous effect of allotment brought the Indian Reorganization
    Act (IRA) of 1934.30 This applied only to Indian tribes
    voting to accept it (192 of the 263 tribes did so). It authorized the
    expenditure of $2 million a year for the purchase of land to be held in
    trust for Indians by the Federal Government and prohibited future
    allotments of Indian lands. It also provided for tribal government,
    tribal incorporation for credit and other business purposes, and preferential
    employment of Indians by the Indian Bureau.
    The IRA was a complete reversal of prior policy. During the next
    20 years, 4 million acres of land were purchased by and for Indians,
    and great strides were made toward the economic stability of Indian
    communities. But in the late 1940’s the IRA came under congressional
    fire, in part because of its mounting costs. As a consequence Indian
    policy was again reversed, this time by House Concurrent Resolution
    108, adopted August 1, 1953. It provided that all Indian tribes “should
    be freed from Federal supervision and control and from all disabilities
    and limitations specifically applicable to Indians,” and directed the
    Secretary of Interior to recommend the necessary legislation piece-bypiece
    to “relinquish Federal trusteeship.” (As a matter of fact “termination”
    originally known as “withdrawal programming,” had already
    been initiated by the Bureau of Indian Affairs in 1950.) Pursuant
    thereto bills were enacted to terminate tax exemptions and Federal
    trusteeship for Indian lands belonging to several tribes located in Texas,
    Utah, and Oregon.31 Other legislation has been enacted to effectuate
    the termination policy.32
    The current policy of terminating Federal trusteeship and withdrawing
    Federal supervision over Indian affairs has met with a largely negative
    reaction from the Indians themselves. As one observer put it,
    “Among Indians termination is a dirty word.” One reason Indians
    oppose termination is that they fear the loss of tribal land. Between
    1953 and 1957, more than a million and a half acres of Indian land
    were taken out of trust. It is estimated that practically all of this land
    123
    was sold to non-Indians. The rate of sale has been approximately 3
    percent per year which means that Indians in this 4-year period have
    lost approximately 12 percent of their lands.33
    As of now, however, termination is no longer the official policy of
    the Department of Interior. Moreover, the recent Task Force Report
    on Indian Affairs submitted to Secretary Udall and endorsed in general
    by him, indicates that the pendulum of Federal policy is in the
    process of swinging again. Abandoning the termination concept, the
    “new trail” announced by the Secretary stresses economic growth for
    the Indian. Among the Task Force proposals under consideration are
    those calling for the establishment or expansion of loan funds to assist
    Indians in improving farming, arts and craft enterprises, and to attract
    new industry to reservations.
    The dilemma of Indian policy
    The land problems of Indians and all that they include, among them,
    the fate of tribal life and culture, do not involve civil rights issues in
    the traditional sense. Nonetheless, they are basic to an understanding
    of the Indian problem. Moreover, they are at the heart of what concerns
    the Indian and the Federal Government. For one reason or another,
    the numerous and dominant people have not been able to make up their
    minds what to do with the “colonies of troublesome strangers.” At times
    Federal policy has tended toward the preservation of tribal lands and
    cultures; at others it has swung toward assimilating Indians into Ameriican
    society. Most recently, the policy has been a curious and uneasy
    amalgam of each tendency. On the tribal side, it appears that Indians
    have not made up their minds to abandon their tribal communities and to
    join white society. Distrust of the white man and a lack of social and
    economic security contribute to the reluctance.
    In short, the Indian dilemma still persists.
    124
    2. The Legal Status
    In the course of time there have accumulated 389 treaties, more than
    5,000 statutes, some 2,000 Federal court decisions, a raft of Attorney
    General opinions, numerous administrative rulings, 141 tribal constitutions,
    112 tribal charters, a gigantic set of regulations, and an encyclopedic
    manual—all especially applicable to Indians,1 all bearing
    witness to their complex and unique legal character.
    An Indian is three things: a tribal member with cultural, social, economic,
    religious, and political ties to tribal life; a “ward” of the Federal
    Government; and a citizen with most of the same rights and
    privileges possessed by other citizens. This tripartite status has been
    recognized, but not clarified, by the courts. As the Supreme Court
    said in United States v. Nice: 2
    Citizenship is not incompatible with tribal existence or continued
    guardianship, and so may be conferred without completely emancipating
    the Indians, or placing them beyond the reach of congressional
    regulations adopted for their protection.
    Moreover, the Indian who severs his tribal ties, asserts his rights as
    a citizen, and tries to make his way in the white man’s world, frequently
    discovers that in addition to the three facets of his legal personality
    outlined above, he is socially a member of a racial minority. His attempts
    at assimilation may meet resistance almost as determined as that
    faced by the Negro. Many Indians have, however, one advantage (if it
    can be called that), Negroes do not—they can, and often do, go home
    again.
    The Indian as sovereign
    Article I, section 8 of the Constitution authorized Congress “to regulate
    Commerce with foreign Nations, and among the several States and
    with the Indian tribes . . . .” It recognizes, in short, that Indian tribes
    are separate and distinct entities. Moreover, the separate status of
    Indians has been confirmed and reconfirmed by the Supreme Court in
    numerous cases, some of them of recent vintage.
    125
    While the Indian right to self-government is firmly rooted in treaties
    and judicial decisions, the right itself has been held inherent; that is,
    it preceded and was not created by the Federal Government. The basic
    principles of tribal sovereignty, then, are these: 3
    i. An Indian tribe possesses, in the first instance, all of the powers of
    any sovereign state.
    2. Conquest puts an end to the tribe’s external powers of sovereignty
    (for example its power to make treaties except with the United States).
    But conquest alone does not affect a tribe’s internal sovereignty, that is,
    its power of self-government.
    3. The latter, however, is subject to qualification by Federal legislation.
    Two decisions of the Supreme Court illustrate the principle and the
    extent of tribal sovereignty. In the first, Talton v. Mayes the Court
    held that Indian tribes were not subject to the constitutional limitations
    addressed to the Federal Government, including the Bill of Rights. In
    the second, Ex Parte Crow Dog,5 the Court held that Federal tribunals
    could not try one Indian for the murder of another on a reservation in
    the absence of legislation expressly granting such jurisdiction to the
    Federal courts.
    *
    While the Crow Dog decision sustained the right of Indian tribes to
    rule and judge in their own bailiwick, it also pointed out that the right was
    subject to congressional limitation. Two years later, Congress enacted
    legislation giving Federal courts jurisdiction of seven major crimes
    committed by an Indian against an Indian in Indian country.6 Three
    other crimes were subsequently added.7
    Apart from matters of criminal jurisdiction the most extensive congressional
    limitations on internal, tribal autonomy relate to land tenure.
    They range from control over the use and disposition of Indian lands,
    through the grant of adverse interests, to the control of tribal funds,
    (most of which arise from the use and disposition of tribal lands). Indeed
    they even deal with land held by individual Indians where the right
    to sell is, in one fashion or another, restricted. Since Federal authority
    is supreme in these matters the States cannot intrude unless Congress
    otherwise provides, as indeed it has in recent years.
    At present there are about 2 50 self-governing tribes supported in the
    main by Indians themselves. Some, like the Navajos, have superior
    resources. They budgeted $20 million for tribal purposes in 1959.
    Others, like the Pueblo of Zia, have next to no tribal budget and no paid
    employees.8
    To the extent that they have not been limited by Federal law, Indian
    tribes are free to govern their members and manage tribal affairs as
    they see fit. However, while the Indian Reorganization Act of 1934
    strengthened tribal autonomy, the tribes have acceded to the recommendation
    of the Secretary of the Interior that the constitutions adopted
    under the act include provision for review by him of the exercise of
    tribal powers. Some observers insist that this power of review, incorporated
    in the constitutions by the tribes, has brought unwarranted interference
    in the matter of taxes, contracts, budgets, ordinances, and other
    internal tribal matters.
    The Indian as citizen
    The 14th amendment (1868), provided that all persons born in the
    United States and subject to its jurisdiction are citizens of the United
    States and of the State in which they reside. Nonetheless, tribal Indians
    were held to be excluded from its effect on the ground that they were
    autonomous, political communities. Although many Indians became
    citizens before 1924 by reason of the Allotment Act and other special
    measures,9 it was not until that year that citizenship was conferred on
    all native bom Indians by the Indian Citizenship Act.10 Indians born
    outside of the United States could not be naturalized until 1940.11
    As citizens, Indians now enjoy, with some exceptions, the same rights
    and privileges in relation to Federal and State Governments as do other
    Americans. The principal exception is that the Federal Government
    holds much of their real property, and sometimes personalty, in trust or
    under some other form of control. For this reason Indians are not
    generally required to pay taxes on real property.
    Many of the laws that denied Indians some of the attributes of citizenship
    were repealed by the Indian Reorganization Act of 1934. Others
    were repealed thereafter. In addition, legislation (such as the Indian
    Liquor Law), and laws imposing upon Indians disabilities not shared by
    white citizens (such as the right to sue the Government in the Court of
    Claims), have in large degree been repealed.
    The first Indian liquor law was passed in 1802 on the recommendation
    of Jefferson. It authorized the President to regulate the sale of
    liquor among the Indian tribes. The validity of such legislation was
    frequently upheld by the Supreme Court. In 1953 Indians, when off
    the reservation, were put in the same category as non-Indians except in
    States having Indian liquor laws of their own.12 Indians were also given
    the right of local option on their own reservations.
    Legislation of 1863, denying Indians the right to prosecute tribal
    claims based on treaties, in the newly established Court of Claims was
    effectively offset by the Indian Claims Commission Act of 1946. Set
    up largely to adjudicate land grievances, the Claims Commission originally
    was to remain in existence for 1 o years. However, because of the
    volume of cases, the act has been extended until 1967.13
    Despite the trend toward erasing from the statute books legislation
    imposing special restrictions upon Indians, they continue, as was pointed
    out earlier in this chapter, to find social, economic, and legal impedi-
    127
    ments to full equality. In housing, employment, education, public
    accommodations, and in the administration of justice, the Indian encounters
    the kind of discrimination suffered by other minority groups.
    If he remains on the reservation his position is ambivalent. He is citizen,
    ward, and tribal member. He is buffeted between the Federal
    Government and the States. States often have refused Indians services
    afforded other citizens (welfare is a prime example) on the ground that
    Indians are a Federal responsibility. Often when the Federal Government
    has terminated its supervision of an Indian tribe and ceded jurisdiction
    to a State, the State has been slow to assume its responsibilities.
    The Indian as a Federal"ward”
    The term “ward” has had a special magic of its own ever since Chief
    Justice Marshall declared that Indian tribes bore a relationship to the
    United States resembling that of a ward to a guardian.14 Acts and
    policies otherwise apparently unjustifiable have been upheld in the name
    of guardianship. As the Supreme Court once said, “from [the Indian’s]
    very weakness and helplessness . . . there arises a duty of protection
    and with it the power.” 18 The duty to protect arose, in many
    instances, from promises made in the various treaties with Indian tribes,
    including the promise to protect Indians from unauthorized appropriation
    and use of their lands. It often included the affirmative duty of
    providing money and services, education, welfare, and the like in compensation
    for land cessions.
    As now applied, wardship is an imprecise and misleading term except,
    perhaps, as used to describe the Federal-Indian relationship with respect
    to Indian lands. But even here, as some Indian spokesmen maintain,
    the Federal Government is more a trustee than a guardian. The
    distinction is of some importance since a guardian has a wider range of
    power over his ward than a trustee has with respect to a beneficiary.
    Whatever the proper nomenclature, the forms of Indian “ownership”
    fall into three categories: 19
    i. Trust patent—the Federal Government holds the title of the property
    in trust for the Indian who “owns” it. The Indian is unable to
    alienate this land without the approval of the Secretary of the Interior.
    2. Restricted fee—the Indian has been given title to the land but
    cannot alienate it without the consent of the Government.
    3. Tribal lands—the individual member of the tribe has no vested
    interest in tribal property, but based on his membership, he has the right
    to participate in the enjoyment or use of communal holdings of the tribe
    in such manner as may be provided by tribal authority.
    As a rule, tribal lands cannot be sold except by statutory authorization.
    An Indian desiring to sell land which he “owns” individually by trust
    128
    patent or restricted fee must apply to the Secretary of Interior for permission
    to do so. In disposing of the application the Secretary will
    consider such things as the competency of the Indian to manage his
    own affairs, the identity of the buyer, the relationship of the land to the
    reservation, and the current use of the land. A policy of freely granting
    permission to sell is likely to meet strenuous objection from tribes
    seeking to preserve the reservation as a unit.
    One of the consequences of these restrictions is to be found in the
    field of taxation. While it is popularly thought that Indians are exempt
    from all taxation, there are, in fact, a variety of taxes, including
    income taxes, imposed by all levels of Government, to which Indians,
    including reservation Indians, are subject. However, as noted earlier,
    it is generally true that Federal, State, and local taxes are not applicable
    to lands, funds derived from land, or other personalty, owned by Indians
    where there are restrictions upon the sale or use thereof.
    The question whether the Indians are “wards” of the Federal Government
    in matters other than those involving land has been raised in
    a number of cases of fairly recent origin. One such case concerned
    the right of Indians to vote in Arizona. A 1928 decision of the Arizona
    Supreme Court held that the Arizona Constitution did not permit
    persons under guardianship to vote.17 In 1948 the issue came up
    again.18 Expressly overruling its 1928 decision in Porter v. Hall, the
    Arizona Supreme Court held that Indians had never been placed under
    judicially established guardianship by any legal act, were citizens and
    thereby entitled to the franchise. The court, through Justice Levi
    Udall, declared: 19
    No superintendent or other official or employee of the United
    States has custody of the person of the plaintiffs. They are not
    confined to the reservation and may leave it at any time they so
    desire. The plaintiffs are under no duty to follow the advice or
    instruction of any Federal officials in selecting a place to live. The
    power of the Commissioner of Indian Affairs, or of the local superintendent,
    to decide what people might visit an Indian reservation
    and meet the Indians thereon was abolished in 1934. . . . The
    plaintiffs have full and untrammeled right to utilize their own property
    (except their interest in land or other property to which the
    Federal Government has a trustee’s title) as they see fit and to
    receive and expend income therefrom without Federal interference.
    A . . . beneficiary of a trust estate who is a white person does not
    thereby become a person “under guardianship”. . . .
    A more recent case in California upholds the right of reservation Indians
    to receive directly county relief payments, the denial of which violates
    the 14th amendment.20 In the lower court in the aforesaid case,
    129
    the Superior Court of California in and for the county of San Diego,
    Judge Mundo declared: 21
    . . . The fact that laws are passed for the protection of seamen
    and Indians, as well as other classes of citizens, does not mean
    that they become wards in the true sense of the word, nor do these
    special enactments operate to impair other rights which they enjoy
    as citizens.
    There are other contexts in which the term “ward” is used, two of
    which deserve mention. Indians are sometimes said to be the recipients
    of “unearned bounties” at the hands of the Federal Government, a
    condition that led some to describe them as “charity wards.” In reality
    most services rendered to Indians were, in the first instance, the quid
    pro quo for land cessions or for maintaining peace. In most cases
    the quid pro quo was defined in terms of money. Since the Indians
    had little use for money, it was often placed in trust and spent, as the
    Indians might wish, for food, stock, farm implements, education, medical
    services, and the like. When the funds were expended, Congress thought
    it wise to continue these services and appropriated funds to do so. (With
    the possible exception of medical service, most Federal services rendered
    to Indians—schools, road building and, in some instances, welfare—are
    services which other citizens receive from their respective States. The
    amount of Federal money spent for economic assistance to Indians is
    relatively small. It is bound to increase however as programs of economic
    development take effect.) In recent years, however, the tendency
    has been to turn over the responsibility for maintaining certain public
    services to the tribes or to the States.
    The other sense in which the term wardship is used connotes the submission
    of Indians to congressional legislation and administrative control.
    As had been said, quite apart from its power to regulate commerce
    among the Indian tribes, the power of Congress to legislate in matters
    affecting Indian tribes was expressly recognized in many early treaties.22
    By virtue of the combination of the treaty power and the commerce
    power, Congress has been able to regulate Indians to a degree and in
    a manner which, if applied to non-Indians, might well have been held
    unconstitutional. The class legislation for Indians contributed to the
    notion that Indians were in a special category for which, given the
    depressed and economic state of many tribes the term “wardship” seemed
    a convenient and, sometimes, an apt description.
    Plainly the meaning of the term “ward” as applied to Indians is
    imprecise. It is true that Indians were at one time subject to special
    supervision and control in many areas of their lives. They still are, to
    some extent, particularly with respect to “trust property.” It is also true
    that, because of their low economic status, they often require more
    130
    assistance than most other Americans. But this does not constitute
    wardship in any orthodox sense. Moreover, the cure for whatever
    passes for “wardship” seems to consist of promoting responsibility and
    integrity, in supplying the economic tools and the social climate by which
    responsibility is translated into meaningful action.
    An ironic anomaly
    The subtleties of the Indian’s legal status are nowhere more evident than
    in the area of the Bill of Rights. For while neither Congress nor the
    States may infringe the basic civil rights of Indians—in this respect, they
    enjoy the same status as other citizens—Indians are not so protected
    against the actions of tribal governments. As has been noted in Talton
    v. Mayes,23 the Supreme Court held that the fifth amendment applied
    only to acts of the Federal Government and did not extend to the government
    of the Cherokee Nation. Since the government of the Cherokees
    was recognized by the Federal Government, but not created by it,
    the court reasoned that the judicial authority of the Cherokees was
    not subject to the limitations imposed upon the Federal Government
    by the Constitution. The Talton case is still the law. In effect, this
    means that the Bill of Rights is not applicable to the relationship between
    Indians and their tribal governments. Moreover, a memorandum from
    the solicitor of the Interior Department supports the notion that the
    amendment’s guarantee of religious liberty does not limit the action
    of a tribal council.24
    It is true, of course, that the Bill of Rights does not apply to the
    States except insofar as they have been read into the 14th amendment
    by the Supreme Court.25 Yet even with respect to these read-in protections
    Indians are not protected from tribal authorities. For it has
    been held that while States are precluded from infringing on the free
    exercise of religion, Indian tribes may do so with legal impunity. Two
    recent cases illustrate the contrast.
    The first concerned an action brought by six Jemez Pueblo Indians
    of various Protestant faiths against the Pueblo Indian Government,
    charging it with subjecting them to indignities, threats and reprisals
    because of their Protestant faith.26 Specifically the Pueblo were accused
    of refusing the six the right to bury their dead in the community
    cemetery; denying them the right to build a church of their own
    on Pueblo land; prohibiting them from using their homes for church
    purposes; and refusing to permit Protestant missionaries to enter the
    Pueblo freely at reasonable times. The plaintiffs further alleged that
    the officials of the Pueblo had threatened them with the loss of their
    homes, birthrights, and personal property unless they accepted the Catholic
    religion. The plaintiffs contended that the acts of the Pueblo were
    131
    in direct violation of an ordinance validly adopted by the Pueblo which
    permitted freedom of worship as the conscience dictates.
    The action was brought under a Civil Rights Act which makes any
    person, acting under color of any “State statute, ordinance, regulation,
    custom, or usage of any State or territory” who deprives another of
    his constitutional rights liable to the person injured. The plaintiffs
    claimed their freedom of worship was protected by the first amendment.
    In holding that it had no jurisdiction to hear the complaint,
    the Federal District Court for the district of New Mexico said: 27
    It has, indeed, been held that the powers of an Indian tribe
    do not spring from the United States although they are subject
    to the paramount authority of Congress [citing Talton v. Mayes],
    Their right to govern themselves has been recognized in such statutes
    as the Indian Reorganization Act of 1934. Consequently,
    there is no basis for holding that the conduct of the defendants
    of which the plaintiffs complain was done under color of State
    law, statute, ordinance, regulation, custom, or usage.
    Although the court made mention of the fact that the plaintiffs relied
    on the first amendment, it dismissed the case for want of jurisdiction
    without further comment on the constitutional issue. In effect, the
    court held that no basis existed for labelling the abuses of a tribal government
    as “State action.” Thus, if tribal actions cannot be classed as
    “State action,” and if, according to Talton v. Mayes, tribal governments
    are not subject to constitutional limitations imposed upon the Federal
    Government by the first 1 o amendments, they are, in effect, free to
    treat individual members of a tribe in ways that vary from the standards
    prescribed in the Bill of Rights and the 14th amendment.
    In contrast, the second case involved a suit by the State of Arizona
    against Mary Attaki, an Indian.28 She was charged with violation of
    a State statute which made it a crime to possess and use peyote, a nonhabit
    forming stimulant derived from cactus plants. Some Indians use
    peyote as part of their religious ritual. The peyote rite is said to be one
    of prayer and quiet contemplation. Its use in the religious context is
    complex. Something of a sacrament, its consumption is thought to bring
    the user into closer communion with the Almighty. Peyote, is therefore
    an essential ingredient of the “Peyote” religion. The court found
    the use of the “drug” not harmful and further held that the statute
    which made its possession illegal was unconstitutional as applied to the
    defendant in the conduct of her religious beliefs.
    Since constitutional limitations apply to the Federal Government and
    to States but not to Indian tribes, tribal governments may regulate the
    behavior of individual members in ways in which the Federal and State
    Governments may not. (The fact that they can does not, of course,
    mean that all do.) Comparable limitations could be imposed on
    tribal governments by constitutional amendment or, very likely, by
    congressional action. Limitations may yet be found, in an appropriate
    case, by the courts. Whether and to what extent such limitations are
    desirable involves (as in so many Indians affairs) a delicate balancing of
    values—between civil rights and liberties on the one hand, and the
    benefits of tribal autonomy on the other.
    Summary
    In summary, then the Indian wears three legal “masks”, tribal, citizen,
    and “ward”, and bears relationships to three legal authorities, Federal,
    State, and tribal. The relationships are complex and not always uniform.
    As will be seen, they sometimes conflict or leave gaps which give
    rise to denials of “equal protection,” particularly in the fields of education,
    welfare, and the administration of justice.
    599614—61------10 133

    3. Status as a Minority
    It was not possible, however, for the Commission to conduct more
    areas—voting, public education, administration of justice, public welfare,
    housing, employment, and public accommodations. Though the degree
    of denial varies, the Commission has found evidence of current or recent
    discrimination in each area.
    It was not possible, however, for the Commission to conduct more
    than a limited review of the extent to which the deprivation of civil
    rights prevails. A field investigation was made, tribal delegations were
    interviewed, and conferences were held with experts on Indian affairs.
    Conferences on Indian problems were also held by State advisory committees.
    While no testimony was taken under oath, evidence obtained
    from the activities described above show sufficiently widespread denials
    of civil rights to warrant concern and fuller inquiry.
    The 1960 census reported on five racial minorities. In order of population
    size, they were as follows: Negroes, 18,871,831; American
    Indians, 523,591; Japanese, 464,332; Chinese, 237,292; and Filipinos,
    176,310. Indians are thus the second largest “racial” minority in the
    United States. As a minority, Indians fall into three general categories—
    reservation, nonreservation, and off reservation. The civil
    rights problems of the latter, sometimes referred to as “relocated” Indians,
    are not specially treated in this study. There is little reason to
    doubt however that this group suffers many of the denials inflicted on
    other Indians.
    There is some evidence of discrimination, albeit sometimes only on a
    spotty basis, in all of the 25 States with substantial groups of Indians.
    The degree of hostility in communities adjoining Indian reservations is
    usually in inverse proportion to the distance of the locality from reservation
    boundaries. The larger cities are often too far away from reservations
    to provide ready access to reservation Indians and yet big enough,
    in most cases, to absorb a sparse Indian population. To be sure, the
    Indian still runs into discrimination in cities, but it does not seem to be
    as staunch a kind as that which finds expression in smaller communities
    adjacent to reservations.
    In the recent past, signs, such as “Indians Not Allowed,” were commonplace
    in many small communities near reservations. Most of these
    135
    have disappeared, but the prejudice they expressed remains. For example,
    the city commission of Chamberlain, a small community in
    South Dakota 60 miles from a reservation, passed a resolution in 1954
    stating that its citizens were “opposed to the city being made an Indian
    town and are opposed to having Indians in our schools or living in
    unsanitary conditions about the city . . 1
    Hostility is sometimes found in bordering towns even where the
    Indian population is large and potentially holds the balance of political
    power, as in South Dakota where thousands of destitute Indians reside
    off reservations.
    Because of poverty, lack of education and, in some cases, uncleanliness
    and poor dress, it is sometimes difficult to determine whether the
    hostility is directed against Indians as a race or the Indian as an individual.
    Moreover, Indians tend to keep to themselves and do not venture
    into areas where they are likely to experience discrimination. Consequently
    the Indian often may not know whether he will encounter
    discrimination if he seeks to broaden the scope of his community existence.
    Those who were interviewed frequently could not state whether
    hotels or restaurants refused admission to Indians. Their people had not
    sought to patronize “all white” establishments and therefore did not
    know whether service was available on an equal basis.
    The right to vote
    As a citizen of the United States and of the State wherein he resides
    the Indian has a right to vote which is subject to the same qualifications
    and limitations imposed on other citizens. By virtue of the 15th
    amendment, this right is protected against denial by reason of race or
    color. For the most part, today’s Indian does not suffer under any
    widespread or substantial restrictions upon his exercise of suffrage.
    There are no statistics available for nonreservation Indians, but in 1956,
    the latest election for which figures are available, of the 143,078 Indians
    over 21 years of age living on reservations, 57,818 were qualified to
    vote and 25,582 actually cast a ballot in the previous general State
    election.2
    The right to vote, however, did not come automatically. In 1938, 14
    years after Indians were made citizens, 7 States still enforced statutes
    and constitutional provisions which denied Indians the franchise.
    The justification for the refusal invariably rested on one or all of three
    grounds: that Indians on reservations were members of tribes with a
    considerable amount of sovereignty independent of State governments;
    that the Federal Government maintained a high degree of control and
    supervision over Indians; and that Indians were not required to assume
    the same burdens of citizenship (i.e., pay real property taxes) and did
    not have the same interest in local political affairs. By 1947, however,
    136
    the number of States refusing the franchise was reduced to two—
    Arizona and New Mexico—each with large Indian populations. As a
    result of judicial decisions, both States withdrew their prohibitions in
    1948.3 (There was a recent flurry in New Mexico, however, when a
    defeated candidate brought suit contesting the right of the Navajo
    Indians to vote on reservations for State offices. The suit has not yet
    been decided. )3a In 1956, Utah revived a statute which, in effect, prohibited
    Indians living on reservations from voting. The statute provided
    that Indians were not to be considered residents of Utah for
    voting purposes unless prior residence in the State, other than on a
    reservation, had been established. In a class action, Preston Allen, a
    reservation Indian, brought suit in the Utah Supreme Court contending
    that the statute deprived Indians of the right to vote because of race
    in violation of the 14th and 15th amendments.4 The court denied the
    contention and upheld the validity of the statute on the ground that
    the separate classification of Indians was reasonable. Said the court: 5
    This conclusion is based upon their continued tribal sovereignty; the
    influence and control, actual and potential, of the Federal Government
    over them; the fact that they enjoy the benefits of Governmental
    services without bearing commensurate tax burden, and are
    not as conversant with nor as interested in Government as other
    citizens.
    The Supreme Court of the United States granted certiorari. However,
    a motion to vacate the judgment was granted upon stipulation of counsel,
    that the case had become moot.6 Utah had repealed its statute, and
    expressly provided that residence on an Indian reservation should not
    result in loss of voting rights.
    Such on and off attempts to restrict or challenge the right of Indians
    to vote arise, in part, from the irritation occasioned by awareness of
    the Indian’s partial exemption from State legal processes. The 1959
    case of Williams v. Lee 7 is an example. In that case, a white trader
    sued a Navajo Indian in an Arizona State court to collect a debt for
    goods sold. The Navajo contested the suit on the ground that the tribal
    court and not the State court had jurisdiction since the transaction
    which gave rise to the suit occurred on the Navajo Reservation. A
    judgment was nonetheless entered in behalf of the white trader and
    affirmed on appeal to the Arizona Supreme Court. The U.S. Supreme
    Court reversed, however, on the ground that Arizona had no jurisdiction
    over Indians on the reservation even where the transaction was between
    a white man and an Indian.
    The decision became the subject of heated discussions throughout Arizona,
    culminating in a formal opinion issued by the State Attorney
    General that Indians could not vote on reservations because they were
    137
    not amenable to the laws of the State.8 The Attorney General reasoned
    that law and order could not be maintained at polling places on reservations
    and ballot boxes could not be protected against stuffing. Legislation
    was introduced to remove all polling places from reservations.
    Because of the vastness of the Indian land, the removal of polling places
    would have disenfranchised all but a few of the reservation Indians.
    The legislation did not pass, however.
    At the present time, most, if not all, of the legal obstacles specifically
    barring Indians from voting have been removed. And Indian leaders
    as well as officers of National Indian associations are of the opinion that
    the right is generally secure both on and off the reservation. The few
    stumbling blocks that do remain are of a more general nature. In a
    few States, Indians have been inhibited from large scale participation in
    the voting process by the poll tax and the literacy test. The latter may
    be a cause of the low Indian registration in States with literacy tests since
    some reports indicate that the Indian literacy rate approximates 50 percent.
    9 The rate of illiteracy is of course in large part a product of the
    inadequate schooling of the older generation of Indians. It is not,
    however, the sole cause of Indian nonvoting. Two related factors which
    are advanced by many persons, are the Indian’s intimate concern with
    tribal affairs, and his indifference to the white man’s politics. Moreover,
    the Indian often recognizes the Bureau of Indian Affairs as the
    “government,” and seeks what protection, guidance and good he can
    from its local and Washington representatives. Such factors as these
    combine to produce occasional extreme examples of seeming political
    apathy. One, taken at random, is the case of the Choctaws of Mississippi.
    Of 1,278 adults on reservations, only 27 were eligible to vote and
    only 9 voted in 1956.10
    In recent years some Indians appear to have taken long strides in the
    use of the ballot and have thereby increased their political effectiveness.
    In New Mexico the percentage of Indian registered voters increased
    substantially between 1952 and 1956, largely as the result of a voter
    education program. Similar increases were found for some tribes in
    Montana, South Dakota, and Washington.
    In summary, there do not seem to be any current instances of denials
    of voting rights to Indians because of race. The failure of Indians to
    vote in substantial numbers are not attributable to direct discrimination.
    It is no doubt due, in some measure, to lack of interest and to mixed
    loyalties, the deepest of which is to the Indian way of life. Whatever
    the cause, it is clear that years of distress and political confusion have
    not bred the kind of respect for the white man’s institutions that encourages
    the pursuit of social betterment through the medium of the
    ballot box.
    138
    Public education
    As with Indian land, the Federal Government has played a dominant
    role in Indian education. The role has not been an easy one either for
    the Government or the Indian. What is difficult enough in itself became
    doubly so since Indian youth were the products of a culture alien
    to the one to which the classroom introduced them.
    The first Federal action in the field of Indian education was the
    incorporation of education provisions in the 1794 treaty with the Tuscaroras.
    Thereafter the inclusion of similar provisions in treaties became
    the general practice until 1871 when treaty making was abandoned.
    The first congressional legislation in the field was the act of March 30,
    1802, authorizing the expenditure of $15,000 a year “to promote civilization
    among the aborigines.” 11
    In 1819, at the urging of President Monroe, Congress passed an act
    which provided that the President could: 12
    . . . employ capable persons of good moral character to instruct
    them (the Indians) in the mode of agriculture suited to their situation;
    and for teaching their children in reading, writing, and
    arithmetic. . . .
    A sum of $10,000, later called the “civilization fund,” was appropriated
    to accomplish the purposes of the act. Most of it went to establish
    and support mission schools whose aim it was to christianize as well as
    “civilize” the Indian. These were private, sectarian schools organized
    by missionary societies. However, in the latter part of the 19th century,
    opposition to Federal support for sectarian education grew and in 1897
    (again in 1917) Congress passed legislation prohibiting the use of Federal
    funds for the education of Indian children in sectarian schools.13
    While the total impact of mission education was slight, it was largely
    through mission efforts that schooling became the accepted method
    for bridging the gap between the Indian and white civilization. It
    also gave rise to the somewhat disputed device of the boarding school
    to which Indian children were sent to be freed from the inhibitions of
    tribal culture.
    The first Federal Indian school was established in 1890, and from that
    time on, the number increased each year. Following the pattern set
    by mission schools, the course of instruction included domestic science,
    farming, the industrial arts, reading, writing, and arithmetic. The
    next 20 years saw a mushrooming of Indian schools operated by the
    Federal Government, though the supply never quite kept pace with the
    demand. The new schools were often of the boarding variety, among
    them Carlisle, Pa., and Lawrence, Kans. (Haskell Institute).14 To
    meet the shortage, Congress passed the act of 1882 15 which authorized
    J39
    the conversion of abandoned army forts for school purposes. Several
    of these were still in use as late as 1956.
    In 1890, the old Office of Indian Affairs began a policy of enrolling
    Indians in public schools, which were often reimbursed for the increase
    in cost incurred by instructing the Indian children. Several factors however
    inhibited State acceptance of a responsibility for Indian education.
    The reservation was one. Not only did the reservation remove Indians
    from contact with the States, it also provided a financial roadblock to
    State supported education since Indian lands were not taxable. Moreover,
    Indians were not citizens and were felt to be the responsibility of
    the Federal Government.
    The grant of citizenship in 1924 together with the continued policy
    of reimbursing States for the cost of educating Indian children helped
    allay the resistance of the States. The policy of reimbursement was expanded
    in 1934 by the Johnson-O’Malley Act which authorized the
    Secretary of Interior to enter into contracts with the various States,
    colleges and schools for the “education, medical attention, agricultural
    assistance, and social welfare . . . of Indians.” In 1953, Congress took
    a further step toward assimilating Indian children into public schools by
    authorizing the transfer of Federal Indian schools to the States, with the
    consent of the Indians, and providing further that the schools be equally
    accessible to Indians and non-Indians alike.16
    As a result of these measures, there has been a considerable shift in
    Indian education from federally operated schools to State supported ones.
    In 1900, there were 26,451 Indians in school, only 246 of them in State
    public schools. By i960, more than 125,000 reservation and nonreservation
    Indians between the ages of 6 and 18 were in schools of one
    sort or another. Sixty-four percent of the total were in State schools,
    27 percent in Federal schools and 9 percent in mission schools.
    For many years the Federal policy in education was committed to the
    acculturation of the American Indian, a policy that was not entirely
    successful. In 1928, the Meriam Study found that only 8 percent of
    Indian school children were at or ahead of the normal grade for their age
    whereas 27 percent were retarded by 5 years or more.17 One reason for
    the lag was felt to be that Federal education had not realistically taken
    into account the needs of Indians and Indian children. For one thing,
    the boarding school approach was thought to represent too keen, quick
    and unrewarding a break with tribal life and culture. Among other
    taboos, boarding schools forbade the use of Indian language. For
    another, Federal education had undermined Indian pride in Indianness
    without adequately preparing students for effective postschooling assimilation.
    For a third, the Indian suffered under severe disabilities of
    poverty and disease which made education more difficult.
    As has been said, the Johnson-O’Malley Act of 1934 reversed past
    Federal policy with respect to many Indian problems. Among them was
    140
    Indian education. The cohesiveness of tribal life was now recognized to
    be an important element in a child’s education. At the same time, the
    backwardness of some tribes was at least recognized as a liability to be
    reckoned with. Education, therefore, was to be directly pointed to the
    needs of Indians—to help them gain the skills needed to function in the
    white man’s world without, at the same time, destroying their own. The
    boarding school gave way to the day school. Acculturation as an end in
    itself was softened. Children were to be schooled within their home environment
    by persons who were to be trained in Indian lore. The use of
    the native language was no longer forbidden and the Indian heritage was
    not looked upon as a scourge.
    While much has thus been done to improve Indian education in the
    past 30 years, much more remains to be done. About 8,000 Indian
    children of school age are not in school.18 Overage school children are
    a persistent problem. The drop out rate among teenagers is appalling.19
    Only 24 of the 285 Federal schools offered full-time high school courses
    in 1959. Over 100 Bureau schools offer only 1 to 5 years education
    and many of the in have no more than 2 grades. As a result, the
    educational level of the Indian is much lower than the national average.
    More than any immigrant group, Indians persistently adhere to their
    native tongues, a persistence that makes education even more difficult
    than it normally is. As recently as 20 years ago, close to 30 percent of
    all Indian children entering Federal Indian schools came from families
    in which only an Indian language was spoken. In some areas, the
    proportion of Indian children raised in homes where no English is
    spoken ran as high as 97 percent.20
    Another problem area is compulsory attendance, which has had a
    turbulent and sometimes disastrous history. In 1891 and again in 1893
    Congress provided statutory authority for the issuance of compulsory
    attendance regulations.21 However, the zeal with which governmental
    officials enforced regulations created strong Indian resentment. Indian
    children of tender years were often taken from their parents and transported
    hundreds and sometimes thousands of miles to attend Government
    schools. Occasionally, families were never reunited. In the face
    of mounting criticism, the policy was modified but not before it had
    adversely influenced the attitude of Indians towards compulsory
    education.
    At present, the Secretary of the Interior is authorized to make and
    enforce regulations to insure the regular attendance of Indian children
    at Indian schools and public schools. The Bureau has tried, with some
    success, to avoid the mistakes of the past and to overcome the residue of
    ill will. Presently it encounters much less opposition to compulsory
    education from Indian tribes.22
    The hostility to compulsory education that still exists usually comes
    from Indians in remote sections of reservations whose children, too far
    141
    from reservation schools to make the daily trek, are required to live in
    boarding schools at least 5 days a week and often for the entire school
    year. The Bureau has tried to meet this difficulty by locating trailer
    schools at the more remote sections of larger reservations. Another,
    though lesser, factor in the Indian resistance to compulsory education is
    the need for farm help in the spring and fall.
    Some Indians have achieved a professional status through education,
    yet too many others have had meager schooling. As the Commission on
    the Rights, Liberties, and Responsibilities of the American Indian pointed
    out in its 1961 Summary Report23 many Indians still live in grimy
    poverty in communities where English is neither liked nor spoken. The
    Report noted that Indian parents, without a tradition of formal education
    behind them, find it hard to understand its need or benefits. It
    found that poor families, struggling for a livelihood, are “loath to surrender
    the potential wage the children might earn.” A child brought
    up in such surroundings, in an alien culture, with a partial command of
    the English language faces tremendous handicaps, and is not likely to
    overcome them without incentive and special instruction. As complex
    as community life has now become, the uneducated man has little chance
    to make his way through the labyrinth. If, in addition to being uneducated,
    he is Indian (or Negro, or Mexican, for that matter), his chances
    are less than slim.
    For the Indian child whose education the Federal Government provides
    through Federal schools, the problem is the adequacy and availability
    of the education. Where civil rights problems have arisen is with
    respect to the States. Although reservation Indians enrolling in public
    schools have encountered hostility, the Federal policy of paying grants
    or subsidies to public schools for admitting reservation Indians helped
    to break down policies of exclusion. In some school districts, the per
    capita payments by the Federal Government exceed the cost per capita
    of the States. Hence, apart from the South, the exclusion of reservation
    Indians from public schools is rare. However, the Federal Government
    does not compel States to admit Indian children to public schools, let
    alone admit them on a nonsegregated basis. Its position is that eligibility
    for reservation Indian enrollment in public schools is a matter for
    State determination. Thus discrimination can and does occur in some
    areas.
    As for reservation Indians the Bureau of Indian Affairs reported to
    the Commission in 1958 it had some difficulty enrolling children on a
    nondiscriminatory basis in Louisiana, Mississippi, and North Carolina.24
    An Oklahoma Choctaw engaged in missionary work among the Mississippi
    Choctaws recently complained to the Bureau of Indian Affairs
    that he was not allowed to enroll his daughter in the public elementary
    school in Philadelphia, Miss., because of her race. He accused the
    Bureau of acquiescing in racial discrimination. In its reply the Bureau
    142
    stated that there was nothing it could do.25 While there are some
    Choctaws in white schools in Mississippi, the bulk of Choctaw children
    suffer from the exclusionary policy of local public schools. This is
    true also of the Cherokee Indians in North Carolina. In i960 only 91
    of 992 Choctaw children in Mississippi and only 136 of 1053 Cherokee
    children of school age were in white public schools.26 The remainder
    were in Federal Indian schools.
    The Mississippi statute 27 authorizes separate schools for Indians, but
    does not prohibit the admission of Indians to white schools as in the
    case of Negroes. North Carolina provides separate schools for Indians
    not supervised by the Federal Government. A Delaware statute28
    requires the State board of education to establish schools for Indians
    and prohibits the attendance of white or colored children in such schools
    without the permission of the State board of education. There is, however,
    just one Indian school, the Nanticoke Indian School at Millsboro,
    in the State of Delaware. As of May 1961 it had an enrollment of
    20 pupils all of whom are Indians.29
    Some Indian tribes are not considered a Federal responsibility and
    hence the States wherein they reside have the primary duty of providing
    schooling. It is often provided on a segregated basis in Southern States.
    In nine North Carolina counties, for example, there are three separate
    sets of public schools—for whites, Negroes, and Indians. One of the
    nine, Robeson, reportedly has a fourth school reserved for mixed bloods.
    Another, Person, takes some Indian students from Virginia. In the 9
    counties there are 19 separate schools for Indians, 100 for whites and
    70 for Negroes, serving 10,771 Indians, 32,895 Negroes and 46,465
    whites. All of the Indian schools are public schools operated with
    State aid and State paid teachers under county boards of education.
    In 1959, Indian students of Harnett County sought admission to the
    all-white high school in the county. Harnett County has an Indian
    elementary school (78 students in i960), but no high school. Its high
    school students must travel 70 miles daily round trip by bus to East Carolina
    Indian School near Clinton in Sampson County. They were refused
    admission by the Harnett County Board.80
    In i960, attorneys for three of the Indian Harnett County students
    filed suit in Federal district court asking that the three and “other Indian
    children who may seek admission” be admitted to public schools in Harnett
    County. Once again the claim was made that they were being
    denied equal protection in that they were required to attend an Indian
    high school 35 miles away. After decreeing their admission, the Federal
    district judge changed his mind and ordered a full hearing to
    determine whether, in fact, discrimination was being practiced.31 On
    June 21, 1961, however, it was reported that the Harnett County Board
    143
    of Education had voted unanimously to admit 20 Indian children to
    the previously all-white Dunn High School in September.32
    As a result of refusals to admit Indian children to white public
    schools, and the general indisposition of States to spend money on the
    education of Indians residing on tax-exempt lands, the Indian Bureau
    has had to build schools on reservations in Southern States at a time
    when its policy favored assimilation of Indian children into local public
    school systems. In some cases it has had to send Indian students long
    distances because of State policies. For example, Bureau schools in
    Mississippi go only to the 10th grade and Choctaw Indian students
    wishing to complete high school must transfer to Bureau schools over
    a thousand miles away. Local exclusion policies, therefore, work a
    considerable hardship on Indian teenagers and their parents.
    Segregation may crop up elsewhere than in the South. Until 1958
    there was a segregated school system in Round Valley, Calif., with Indian
    children attending one public school and white children another. A
    forceful school superintendent consolidated both and reportedly lost
    his job as a result.
    The withdrawal of white children from the public school in Cedarville,
    Calif., because of its integrated character was described by Mr.
    Erin Forrest at a Commission hearing in California in January i960.
    Mr. Forrest testified that white children were permitted to transfer to
    another school district some distance away to avoid integration in the
    Cedarville school. Funds were also “transferred” from Cedarville to
    the school receiving the white transferees. According to Mr. Forrest,
    the State Department of Education unwittingly encourages
    discrimination.33
    In summary, State public schools have accepted a fair proportion of
    reservation Indian children on a nondiscriminatory basis—not always
    without special money inducement from the Federal Government.
    Most other Indian children are educated by the Federal Government
    in Federal schools. Some “Federal-Indian” children are admitted by
    some States only to segregated schools and, in some cases, they are not
    admitted to local public schools at all. Most nonreservation Indian
    children in Southern States attend separate public schools.
    It is therefore apparent that, with respect to non-Federal schooling,
    Indians in some States are denied equal protection of the laws.
    The administration of justice
    The power of an Indian tribe to administer justice is historically rooted
    in its status as a sovereign entity, and, except as the Federal Government
    has expressly limited it, the civil and criminal jurisdiction of a tribe is
    roughly akin to that of any sovereign State.
    144
    For the most part, Federal jurisdiction and law enforcement apply
    to io major criminal offenses involving Indians or Indian property—
    murder, manslaughter, burglary, arson, rape, incest, serious assaults,
    and the embezzlement of tribal funds. Most other offenses committed
    by Indians on reservations, as well as many civil actions, fall within
    the purview of tribal law and are tried by tribal courts. State laws do
    not generally extend to Indians on reservations or their holdings except
    where Congress has expressly specified otherwise. When off the reservation,
    Indians are subject to the same laws applicable to other persons.
    There have been recent deviations from the general rules of jurisdiction,
    however, as part of the termination process pursuant to House Concurrent
    Resolution 108. Public Law 280,34 passed in 1953, as amended,
    permits State laws to supersede Federal and tribal laws with respect to
    reservation Indians in Alaska, Wisconsin, Minnesota (excepting the Red
    Lake Reservation), Nebraska, California, and Oregon (excepting the
    Warm Springs Reservation). Limitations are, however, incorporated
    in the law to protect Indian property from taxation and to protect Indian
    hunting and fishing rights. The statute permits States, on their own
    initiative, to extend their civil and criminal laws to Indians without
    consulting the Indians, a provision which led President Eisenhower to
    criticize the law when he signed it.
    Only a few States have taken advantage of the invitation to extend
    their jurisdiction to reservation Indians. Nevada, the first to act, adopted
    legislation in 1955. South Dakota offered to do so, but only with the
    proviso that the Federal Government defray the cost, something the
    statute does not allow. The first attempt in Washington met with strong
    Indian opposition and was defeated. Thereafter, in 1957, a bill was
    passed, with the support of the Indians, which permits Washington to
    assume jurisdiction only after a tribe has requested it to do so. Eleven
    tribes have made that request.35
    Where law and order is the responsibility of Indians it is administered
    by tribal courts under tribal codes of law. There are two types of
    Indian courts, those established by tribal ordinance or resolution, and
    a Court of Indian Offenses established by the Department of Interior.
    One difference between the two is that the latter operates under rules
    and procedures prescribed by the Federal Government, while the former
    operate under rules prescribed by the courts themselves or by the
    tribal councils.
    Indian courts are conducted by one or more judges, who usually have
    no legal training. The courts have both civil and criminal jurisdiction,
    the latter being limited for the most part to misdemeanors. As a rule,
    professional attorneys are not permitted to practice before them. In
    May of 1961, however, the Court of Indian Offenses revoked the prohibition
    against attorneys.36 As for tribal courts, party litigants may
    employ lay “counsel.”
    145
    Indian courts are said to render a good brand of justice except, perhaps,
    where offenders require treatment rather than punishment, as
    is the case with many juvenile delinquents and some adults. Most Indian
    courts have neither the personnel nor the other resources to cope with
    offenders of this sort.37
    The majority of Indian reservations have their own tribal police who
    function independently of the tribal court system, and whose duty it is
    to enforce tribal law. In some instances tribal police are special deputies
    of the sheriff of the county; more frequently, local white police
    officers are deputized as special tribal police to give them authority to
    make arrests in Indian country. Although the tribal police owe their
    loyalty to the tribal council and are not responsible to the Bureau of
    Indian Affairs, there are a considerable number of Indian police employed
    by the Bureau with appropriated funds with whom tribal police
    are said to work closely.
    Among the problems that arise from the jurisdictional complex is one
    that relates to the enforcement of the civil judgments of tribal courts.
    At present, there is no simple procedure for enforcing such judgments
    outside of the reservation and, as a result, the effectiveness of the only
    courts to which Indians of some tribes may go for redress is severely
    limited. Another has to do with procedural rights. An Indian defendant
    in a tribal court may be tried before a layman judge without
    the right of counsel or the right of appeal. The same is not true, of
    course, of Indians tried in State and Federal courts.
    It must be remembered that many of these problems owe their being
    to the uniquely diverse legal status of Indians. Both the jurisdictional
    complex and the differences in rights enjoyed by Indians are worthy of
    an extended examination which the Commission, in this preliminary
    study, has not been able to make.
    For the most part complaints of Indians with respect to law and order
    go to two extremes. On the one hand the charge is made that law and
    order is not adequately maintained on Indian reservations; on the other,
    there are frequent and widespread complaints that law enforcement
    officials in the white communities with substantial Indian populations,
    “throw the book” and sometimes more at Indian violators.
    A Nez Perce tribal delegation, for instance, contended that in local
    white communities minor juvenile offenses by Indian youths are ignored
    by police officials until there is a serious offense, whereupon Indian
    youths are sent to industrial schools without benefit of probation. As
    a result, they said, while the tribes constitute less than one-half of i
    percent of the Idaho population, 20 percent of the industrial school
    inmates are Indian.88
    Tribal delegations from the States of South Dakota, Montana, and
    Washington concurred in a complaint voiced by the Nez Perce that
    local police officers refuse to enforce truancy laws against Indian chil-
    146
    dren. The truant officers, it was said, often take the position that Indian
    children who attend public schools are the responsibility of the Federal
    Government.89
    The delegations from these States expressed great concern over their
    inability to control their children and the lack of assistance toward this
    end from official resources.
    With respect to the complaint that Indians, when off the reservation,
    receive more severe sentences for crimes than do whites, an attorney
    for several Indian tribes in Arizona has stated that the pattern of severe
    sentences for all offenses including traffic violations is the bitterest concern
    among Indians in the State.40
    It has been reported that at times the law enforcement officers and
    jurists of Cortez, Col., appear to be overzealous in jailing Indians and
    giving them heavy fines.41
    There is widespread opinion in California among Indians and those
    close to them that police are more prone to arrest Indians off the reservation
    than they are whites.42
    A charge was made that South Dakota Indians are not treated fairly
    by the courts. The fact that Indians constitute 34 percent of the inmate
    population at the State penitentiary while they represent only 5 percent
    of the State population is advanced as evidence of this.43
    In South Dakota it is also said that there is frequent use of a sentencing
    technique which involves the imposition of a fine or imprisonment with
    suspension of the sentence on condition that the offender leave town for
    a specified period of time. This is known as a “floater sentence,” generally
    recognized as illegal under South Dakota’s sentencing statutes. It
    would seem to be a denial of equal protection of the laws. The “floater
    sentence” is alleged to be rarely used except against Indians.44
    A spokesman from the Oglala Sioux (South Dakota), told a representative
    of the Commission that Indians who are arrested for minor
    offenses are required to do manual labor during their incarceration
    while white prisoners are not. He alleged that in one community the
    police force refuses to provide protection or to respond to phone calls
    from the Indians in the Indian quarter of town.
    A complaint that seems to come from all jurisdictions is that the local
    police officials tend to ignore Indian offenses against Indians but are
    very severe when Indians become involved with white persons.
    Another common complaint concerns the exposure of Indians to
    violence, either by law enforcement officials, or by private citizens. It is
    said that white citizens sometimes take the law into their own hands, treat
    Indians violently and thereafter escape the full rigor of the law. There
    have also been reports that police officers were quick to use their weapons
    far beyond reasonable need where Indians are concerned.
    The charge is often made that Indians arrested for drunkenness are
    jailed, then “rolled” by the police. The Winnebago Tribe of Nebraska
    reported that Indians arrested for excessive drinking who have money
    are jailed and “rolled;” those without are released; that the jail itself, a
    wretched place, is an “Indian jail”—it takes no white prisoners; that the
    local Indian policeman was reportedly advised to arrest Indians who had
    been drinking, but not whites. On the one occasion the Indian policeman
    took a drunken white in tow he was allegedly advised by the Chief
    of Police that his services would no longer be needed if it happened
    again. The complaint that Indians are often “encouraged” to drink,
    jailed, then “rolled” was also made quite often.45
    Similar complaints of mistreatment were made in Montana, North
    Dakota, Wyoming, Oklahoma, and New Mexico. In Elder, Mont., it
    was reported that Indians were often held incommunicado after arrest,
    exposed to police violence which occasionally required hospital treatment
    for the victim.
    Many Indians complained that local authorities did not provide adequate
    police protection in Indian quarters of towns and cities. In one
    Montana community, city fathers were accused of ignoring a request for
    police protection and, as a result, it is said that virtual lawlessness
    prevails.46 Military personnel are said to speed through the Indian section
    of town, discharging weapons and shouting obscenities. There were
    also said to have been instances of the abduction of Indian women for
    immoral purposes. Requests for police assistance though numerous, are
    said to have fallen on deaf ears and Indian citizens have had to assume
    the duty of preserving their own peace.
    Under Public Law 280, the Federal Government relinquished to
    Nebraska criminal and civil jurisdiction of the Omaha and Winnebago
    Reservation. However, the local governments nearby claim they do not
    have the funds to maintain station deputy sheriffs on the reservation.47
    Consequently, the reservation must rely upon the sheriff to answer calls as
    he is able. Similar problems appear to exist for reservations in California,
    Minnesota, Oregon, Wisconsin, and Alaska as a result of the withdrawal
    of Federal law and order and inadequate expansion of State
    jurisdiction.
    Most of the foregoing complaints of discrimination allege denials of
    equal protection of the laws that fall within the purview of the Commission’s
    jurisdiction. How extensive, how valid they are could not be determined
    in this preliminary study. Yet the repetitive nature of the
    charges emanating from different sources suggests that discrimination
    in the administration of justice is a serious concern. If true, the charges
    amount to a substantial denial of civil rights for an important segment
    of the population.
    Public welfare
    Because of their generally impoverished state, Indians are vitally concerned
    about their eligibility for welfare benefits. As a matter of law,
    148
    insofar as such benefits are extended by a State to its needy citizens,
    they must equally be available to Indians, since Indians are citizens of
    the States wherein they reside whether on or off the reservation.
    As for public assistance programs under the Social Security Act48—
    old-age assistance, aid to the blind, aid to the dependent children, total
    and permanent disability compensation—Indians, whether on or off the
    reservation, receive the same benefits as do other citizens. These programs
    are administered by the States, and in order to secure Federal
    funds, each State must submit a plan to the Federal Government for
    approval. Moreover, the plan must be in effect throughout the State
    and this is taken to include Indian reservations.49 State plans are not
    required, however, to cover all of the specific categories of public assistance
    under which one may receive benefits. In some cases, it is said
    that a State may exclude a particular category of assistance in order to
    escape the responsibility of extending it to Indians living on reservations.
    For example, Arizona’s program does not include aid to the permanently
    and totally disabled, reportedly because the State did not want to be
    responsible for reservation Indians.50
    While Indians do receive the same benefits under Federal-State
    social security programs as do other citizens, this is not always the case
    with respect to general assistance programs administered by States or their
    subdivisions. (General public assistance is the catchall category under
    which aid is given to the needy who do not fall into any of the categories
    under social security.) These programs are financed by the States
    and/or the localities themselves. And since the Federal Government
    has no such program of its own, it does not supply funds to the States
    for theirs.
    Most States and counties with significant Indian populations do not
    extend their general assistance programs to reservation Indians. The
    arguments against doing so are familiar ones. Indians, it is contended,
    are Federal “wards,” and the duty of care, it is said, is well placed since
    the plight of the Indian is largely of the Federal Government’s own
    making. Moreover, it is contended that since the legal power of a
    State does not extend to reservation Indians—Indian lands, for example,
    are exempt from State taxation—its legal duty to provide the same
    measure of care to Indians that it does to its other citizens is thereby
    diminished. Nor are these the only arguments. Some States are irritated
    by the fact that, in many instances, destitute Indians who apply
    for public assistance are the owners or heirs of land held in trust for
    them by the Federal Government. In other instances, though an individual
    Indian might himself be destitute, the tribe to which he belongs
    is comparatively well off. In such cases, it is felt that the tribe in whose
    assets the Indian has an interest, rather than the State, should assume
    the duty of care. Where States or their subdivisions do not provide aid
    to needy reservation Indians and where the tribe to which the needy
    599614—61----11 149
    Indian belongs is without sufficient resources to do so, the Bureau of
    Indian Affairs steps in with a program of its own.
    As for off-the-reservation Indians, their eligibility to receive aid under
    State and county assistance programs is often a matter of potluck.
    Whether or not they do depends on the locality, the number of destitute
    Indians applying for aid and the solvency of the agency dispensing it.
    In some counties, Indians find it difficult to secure relief and, because
    the Bureau of Indian Affairs has no special program for them, destitute
    off-the-reservation Indians often find the going rough.
    Complaints alleging discrimination in the dispensation of welfare aid
    have come to the Commission from a variety of Indian sources covering
    a number of States. Several of the Indian delegations interviewed expressed
    the view that the discrimination was widespread both as to
    eligibility and amount of welfare payments received.
    The State of Arizona, for example, has refused welfare aid to Indians
    residing on reservations. A few years ago the Arizona State Welfare
    Board, on appeal, did allow a claim made by a reservation Indian for
    general assistance, but specifically ruled that the decision would not
    control future cases.51
    Indians from the State of Washington have complained that they are
    now required by the State, and encouraged by Bureau personnel, to
    turn over titles to their properties in order to get welfare benefits. They
    contend this to be a sharp and unlooked-for change in Bureau policy.
    As a result, they say, some Indians have had their homes and land sold at
    auction.
    A Fort Berthold Indian delegation from North Dakota contended that
    some counties deny aid to Indians living off the reservation on the
    grounds that they are without funds. The Indians claim that the lack of
    funds applies only to them.
    Under the poor relief law of South Dakota,52 a county may require
    a new resident to sign a poor relief affidavit to the effect that he will not
    become a public charge on the county within a period of i year. An
    Indian moving from one county to another, or into the city from a reservation
    who is served with notice of the requirement for filing such an
    affidavit, becomes ineligible for relief for a period of i year. It is said
    to be the practice in South Dakota, particularly in Pennington County,
    to continue serving notices on the same Indians year after year in order
    to keep them from getting relief.53 The law has been in effect since 1919
    but is now allegedly used primarily against Indians. While the i-year
    requirement may be legal, the practice of serving a second, third, and
    fourth notice to prevent them from acquiring a full year’s residence
    would, if applied to Indians alone, amount to a denial of equal protection
    of the laws.
    In California, a county welfare agency refused assistance to an Indian.
    On appeal, the court held that the Indian was entitled to welfare bene-
    150
    fits as a citizen of the State.54 Despite this clear holding, however, the
    charge is made that discrimination against Indians exists in California
    on the county level in many areas.
    Most Indians interviewed by the Commission staff claimed they were
    often discouraged from applying for public welfare. They contended
    that welfare workers are reluctant to approve their applications for various
    forms of benefits. It is probably within this area of administrative
    discretion that the greatest amount of discrimination occurs. However,
    it is difficult to find clear evidence.
    In summary, where States administer programs under social security,
    benefits are available to Indians and non-Indians alike. Civil rights
    deprivations do arise, however, with respect to State and local assistance
    programs not under social security. These, it appears, are not uniformly
    available to Indians, particularly reservation Indians. Insofar as a given
    State explicitly refuses to extend its program to Indians, the refusal
    would seem to amount to a clear denial of equal protection of the laws.
    As for the more subtle kinds of discrimination, where, for example, the
    refusal of welfare benefits to a particular Indian falls within the area of
    local administrative discretion, the fact of discrimination is more difficult
    to establish. Nonetheless, if the refusal is on racial grounds, it, too,
    amounts to a denial of equal protection of the laws.
    Housing and employment
    The Commission’s survey of Indian civil rights problems did not include
    a detailed examination of discrimination in the areas of housing and
    employment. However, on the basis of preliminary reports and interviews,
    it appears that Indians suffer extensive denials in both areas
    analogous to those confronting Negroes and other minority groups.
    As one might expect from the low economic status of Indians, the
    quality of reservation housing is far below the national average. There
    was general agreement among the Indians interviewed that there is a dire
    need for improved housing on the reservations. However poor and
    inadequate reservation housing is, it does not involve civil rights issues.
    Indians seeking housing off the reservation encounter the same obstacles
    that Negroes do, though to a lesser degree. While some Indians
    have been unable to buy new homes where their ability to pay is not
    in question, most, because of their low economic level, do not reach
    the point of seeking and being denied a home because of race. For
    this reason discrimination in the purchase of homes built with Federal
    assistance does not seem to present a significant problem to Indians at
    present. However, as the economic status of Indians improves, their
    demand for housing, and their exposure to whatever patterns of discrimination
    exist, may be expected to expand.
    15*
    A frequent explanation given for the absence of Indians from work
    forces in areas where they might be expected is that Indians have poor
    work habits. Judged by the white man’s standards, some Indians may
    deserve the criticism. Yet the result of applying a judgment against
    some Indians to all Indians is to erect unfair barriers against those whose
    habits are as good as any white man’s and to discourage others whose
    inclination is to acquire them. Moreover, some Indians do possess special
    skills that white employers do not hesitate to use when they are
    needed. The skill and ease of some Indians in working on bridges and
    other high structures is well known.
    With few exceptions, the Indians with whom the Commission has had
    contact, expressed resentment over their inability to find suitable employment
    in private industry. Some also complained that, despite its
    announced policy of preferential employment for Indians, the Bureau
    of Indian Affairs frequently favors whites for jobs on Indian reservations.
    There were also reported instances of “State” discrimination.
    Some schools, it was said, urged by parents not to hire “squaws” to
    teach their children, have avoided taking on qualified Indian teachers.
    It was also reported that State employment offices often aid and abet
    discrimination by accepting and processing “don’t send me an Indian”
    job orders.
    Even so preliminary a study as this strongly suggests that the pattern
    of job and housing discrimination applies to Indians as it does to other
    minority groups. To document the extent and import of the discrimination,
    particularly in governmentally connected areas, further study
    is required.
    Public accommodations
    In many areas Indians, like Negroes, are refused access to accommodations
    which are open to the general public. Unlike Negroes, however,
    Indians do not seem to be denied entry to any accommodations
    that are “State connected” in such a way as to involve the 14th amendment.
    A brief review of State statutes fails to uncover any that require
    the segregation of Indians in hotels, restaurants, inns, and other public
    places. (However, State laws forbidding discrimination by public
    places because of race unquestionably apply to Indians.) And, while
    Negroes are still refused equal access to transportation facilities—terminal
    waiting rooms, restrooms, and restaurants—in sections of the
    South, Indians are not so disabled. (Representatives of the Choctaw
    Indians of Mississippi, for example, have advised the Commission that
    they use “white” waiting rooms in the segregated intrastate bus terminals
    of that State.) Nor has any evidence come to the Commission’s
    attention that Indians cannot freely use the facilities connected with
    courthouses, postoffices, and other government buildings. The only
    152
    instance of discrimination which may involve State action and, hence, a
    denial of equal protection, concerns the posting of “No Indians or Dogs
    Allowed” signs in small towns. Signs of this kind have been reported
    in the Southwest, notably Arizona.
    Discrimination does exist on a spotty basis in many rural communities
    throughout the Nation in restaurants, taverns, hotels, and similar places.
    But refusal to serve in places such as these does not, under present law,
    amount to a denial of equal protection of the laws.
    While further study might reveal more extensive bias of the sort condemned
    by the 14th amendment, nothing gleaned in this preliminary
    study indicates that the area of discrimination in public accommodations
    is a matter of significant concern to Indians, their leaders, or spokesmen.
    153

    4. Conclusions
    Limited as was the Commission’s study of American Indians, it disclosed
    sufficient evidence of unequal treatment under law to warrant action in
    certain areas and more searching investigation in others. It showed,
    for example, that some Indians are segregated in schools, and that in
    some instances needy Indians are denied welfare benefits in programs
    administered and financed by State and local government. Repeated
    complaints of unfair treatment by police and courts, and complaints of
    inadequate law enforcement on reservations in States to which the Federal
    Government has relinquished jurisdiction, indicate serious problems
    exist in the administration of justice. While no definitive investigation
    was made in the areas of housing and employment, such information as
    was received revealed that in both areas Indians run into barriers
    similar to those confronting the American Negro. Ironically, the study
    disclosed also that Choctaw Indians use waiting rooms designated
    “Whites Only” in Mississippi bus stations, while some towns in the
    Southwest still are marked by signs reading: “No Indians or Dogs Allowed.”
    The significance of this incidental information lies in what it
    suggests: There is nothing exclusive about insults to human dignity.
    In substance then, the civil rights problems of Indians are for the
    most part the same as those confronting other minorities. Yet Indians
    have some unique problems. Their cultures and history; their close,
    changing and at times turbulent relationship to the Federal Government;
    their battle to preserve reservation land—set them apart from others.
    Unlike other minorities, tribal Indians are members of semisovereign nations
    enjoying treaty rights with the Federal Government. They are
    also, however, citizens entitled to the rights and privileges of citizenship.
    Similarly, they are entitled to equal protection of the laws. Particularly
    with respect to land, tribal Indians bear a dependent relationship to the
    Federal Government often described, though erroneously, as that of
    “ward” to guardian.
    The manifestations of their unique status are varied. Indians, for
    example, are in some respects beyond the reach of Federal and State law,
    including the Constitution itself. Tribal governments are not subject
    to the limitations imposed on governmental authority by the Bill of Rights
    155
    and the 14th amendment. Indian land is, for the most part, held in
    trust by the Federal Government; it is tax exempt, and the Government’s
    consent is required before it can be sold. Some Indians go to Federal,
    some to State, and some to mission schools. They may be subject to
    three kinds of law and legal procedure. They have, it appears, a strong
    tendency to preserve their own identities and ways of life, a tendency
    which is most concretely expressed in the Indian tie to reservations.
    Some States resent the fact that while on a reservation, Indians are
    beyond the reach of State law; this resentment is occasionally expressed
    in attempts at “retaliation.” For example, when in 1959 the Supreme
    Court held that Arizona had no jurisdiction over a transaction that
    occurred on the Navajo reservation, even though it was between a white
    man and an Indian, the State sought to remove all polling places from
    the reservation. Arizona’s Attorney General issued an opinion declaring
    that Indians could not cast their ballots on reservations because they were
    not amenable to State laws. As a practical matter the removal of polling
    places would have disfranchised all but a few reservation Indians, for
    the size of the reservation would have compelled most Indians to travel
    great distances to cast their ballots. Though legislation was introduced to
    implement the Attorney General’s opinion, it did not pass. The incident
    illustrates the Indian’s ambivalent legal status, and the frustrations to
    which it gives rise.
    Nor is it the only one. As has been noted, Indians are citizens of the
    United States and, as such, one would expect them to enjoy the significant
    protections from government encroachment contained in the Bill
    of Rights. They do with respect to Federal and State action, but not
    with respect to tribal action. Thus tribal governments can (as indeed
    one has) prevent tribal members on an Indian reservation from freely
    pursuing the religion of their choice.
    Despite the recent problem in Arizona and a similar one still unresolved
    in New Mexico, the Indian’s right to vote appears to be more
    secure than his other rights. Yet Indians have not gone to the polls in
    great numbers. A variety of explanations is offered. The high illiteracy
    rate among Indians (estimated to be at 50 percent) restricts registration
    in States that require literacy tests. Another, and more important
    factor, appears to be that tribal Indians are more concerned with
    tribal government than with white man’s government. A third has to
    do with their close relationship to the Federal Bureau of Indian Affairs.
    As to education, States with Indian populations have accepted a fair
    proportion of tribal children from reservations as students in public
    schools on a nondiscriminatory basis, although not always without special
    inducement by the Federal Government. As of i960 about 60 percent
    of the 125,000 Indians of school age were in State schools; 27 percent
    were in Federal schools and 9 percent in mission schools. In some States,
    however, Indians are accepted in public schools only on a segregated
    156
    basis. The Bureau of Indian Affairs has reported difficulty in securing
    admission of Indian children to public schools on a nondiscriminatory
    basis in Louisiana, Mississippi, and North Carolina. However, some
    Choctaw children in Mississippi and some Cherokee children in North
    Carolina do go to public schools with white children.
    Apart from matters of civil rights, Indian education suffers from other
    limitations. Some reservations are so big and so thinly populated that
    it is not practical to provide schools accessible to all Indian children.
    Moreover, there is still some tribal resistance to compulsory education,
    largely because of past Federal policies under which Indian children
    were sent to boarding schools, forbidden to speak their native tongues
    and otherwise encouraged to sever tribal and cultural ties. (In some
    cases, families were never reunited.) A third factor is the poverty of
    many Indians and the reluctance to surrender wage earners to the classroom.
    Another is the lack of a tradition of formal education.
    Complaints by Indians of discrimination in employment are similar
    to those of Negroes. A preliminary survey indicates some State employment
    offices accept and process discriminatory job orders. There are
    also charges that the Bureau of Indian Affairs frequently ignores its
    announced policy of preferential employment for Indians. Some schools,
    it is said, urged by parents not to permit “squaws” to teach white children,
    have resisted hiring qualified Indian teachers. As to private employment,
    many Indians express resentment over the reluctance of some employers
    to hire them for suitable jobs.
    Indian complaints of unequal treatment in the administration of
    justice include charges that law and order are not adequately maintained
    on reservations in States to which jurisdiction has been ceded, and
    that there is outright ill-treatment by police and courts in towns adjacent
    to Indian reservations.
    A final area of unequal treatment is that of public welfare—a matter
    of vital concern for Indians because of their general poverty. In this
    preliminary study there were no complaints of discrimination in the administration
    of public assistance programs operated by States with Federal
    funds. Complaints were received, however, of unequal treatment
    in the administration of programs financed from State and local revenue.
    Investigation disclosed that some States with large Indian populations
    do not extend their general assistance programs to Indians living on
    reservations. Indians, it is argued, are the special responsibility of the
    Federal Government. And since the legal power of a State does not
    ordinarily extend to Indians living on reservations—for example, Indian
    lands are exempt from State taxes—some States insist that their legal
    duty to provide care for reservation Indians is limited. Another argument
    is that while some individual Indians may be destitute, the tribes
    to which they belong are well off and should take care of their needs.
    I57
    Thus the denial of equal protection of the laws to Indians appears to
    be severe and widespread. Some of the denials (those concerning welfare,
    the administration of justice and, in the recent past, voting) stem
    at least in part from the unique legal and political status of Indians.
    Others stem from the fact that, as a minority, Indians are subject to the
    same kinds of discrimination inflicted on other minorities. Whatever
    their source, the denials deserve full-fledged investigation.
    Over and above matters of civil rights, we still face the problem of
    redeeming the past by preparing for the future, of providing Indians
    with the tools by which they may become economically, socially, and
    democratically secure. As this is done, some, if not many, of the civil
    rights denials will in all probability diminish. It is toward both ends
    then—protecting Indian rights and promoting Indian economic health—
    that the Federal Government should strive.
    FINDINGS
    General comments
    Much of what concerns the Indian is outside the specific scope of this
    Commission’s jurisdiction—for example, his desire to retain “home
    rule,” his worry over the loss of tribal lands, his fear that the Federal
    Government will abruptly end its “trusteeship,” his need for economic
    development. Most of these were covered by the recent report to the
    Secretary of the Interior by the Task Force on Indian Affairs. For the
    present, it appears that the policy of terminating Federal supervision and
    special services to Indians held in abeyance in recent years, has been
    abandoned. The Interior Department indicates it will adopt a “new
    trail” for Indians stressing economic development.
    Within the area of the Commission’s jurisdiction, there is evidence
    of some serious Indian civil rights problems. But in view of the tentative
    nature of its study, the Commission does not offer recommendations
    particularly directed to such matters. However, several recommendations
    made elsewhere in this report would serve Indians as well as
    others. The following findings suggest several areas warranting further
    study and possibly action by appropriate Federal agencies.
    i. Despite recent attempts to make it difficult for Indians on two
    reservations to vote, by and large Indians are free to register and cast
    their ballots. However, a high illiteracy rate among older Indians, and
    a preoccupation with tribal affairs apparently keep Indian registration
    figures well below the national average.
    158
    2. While the bulk of Indian children have been accepted in white
    public schools (although not without Federal inducement), some States
    have denied Indians admission to State schools because of race. With
    appropriate authorization by the President or Congress, the Department
    of Justice or the Department of the Interior might take legal action to
    end this discrimination against Indian children.
    3. Although Indians are afforded welfare benefits much the same
    as other Americans in programs administered by States with Federal
    aid, reservation Indians in some areas have been openly denied general
    public assistance in localities administering programs financed out
    of local and State revenue. The extent to which this occurs is a matter
    for further study. Where it does occur, the Department of Justice or
    the Department of the Interior could, with appropriate authorization
    by the President or Congress, take legal action to end such discrimination.
    4. Some State and local governments reportedly use administrative
    discretion as a device to prevent both reservation and nonreservation
    Indians from receiving welfare benefits for which they are qualified.
    Further study would be required to verify these reports, and to determine
    the extent of the practice.
    5. In some cases, reservation Indians have not been provided with
    adequate law enforcement by the States to which the Federal Government
    has ceded civil and criminal jurisdiction. Further study would be
    needed to determine the exact extent of this problem. The problem
    could be dealt with in part by requiring a firm State commitment that
    all governmental services will be provided as a prerequisite of any future
    withdrawal of Federal responsibility.
    6. Reservation and nonreservation Indians are treated unfairly by
    police and courts in many localities, particularly those adjoining large
    reservations. Indian neighborhoods are sometimes not given adequate
    police protection by local authorities. Further study would be required
    to determine the extent of this problem.
    7. Reservation housing is generally bad. With respect to nonreservation
    housing, Indians face the same kinds of discrimination confronting
    other minorities.
    8. Employment opportunities for Indians appear to be as restricted
    as they are for Negroes. Some State employment offices reportedly
    accept discriminatory job orders and some State agencies are reluctant
    to hire qualified Indians.
    9. Unlike Negroes, Indians do not seem to be denied access to transportation
    and terminal facilities. (The Choctaw Indians of Mississippi,
    for example, use white waiting rooms.) Discrimination against Indians
    does exist, though on a limited basis, in many rural communities
    with respect to other public accommodations such as taverns, hotels, and
    restaurants.
    159
    io. Many American Indians are members of semisovereign tribes.
    They are also citizens of the United States entitled to the rights and
    privileges of citizenship. Indian tribal governments are not at present
    subject to the limitations imposed on State and Federal Governments
    by the Bill of Rights and the 14th amendment. Tribal governments
    are thus free to inhibit and have in fact in some instances inhibited
    the free exercise of religion by tribal members.
    160
    Part IX. The Need for Broader Action
    A Concluding Statement to the 1961 Report
    This report has shown that despite substantial progress the national
    objective of equal opportunity for all, regardless of race, faith, or ancestry,
    is not yet fully achieved. At home, delay frustrates legitimate
    private hopes, impedes important national programs, and seriously
    hinders development of our national strength. Abroad, as President
    Kennedy has said: “the denial of constitutional rights to some of our
    fellow Americans on account of race . . . subjects us to the charge of
    world opinion that our democracy is not equal to the high promise of
    our heritage.” 1
    The effort to achieve that promise must be based on full understanding
    of the challenge that confronts us. In this report the Commission
    has attempted to contribute to that understanding, and to suggest some
    guidelines for action. The report deals separately with civil rights problems
    in different areas, and suggests differing remedies. Yet these areas
    are not wholly separate from each other; through all of them run certain
    common threads which form a single web of discrimination. So also,
    there are some common premises underlying many of the Commission’s
    recommendations.
    The Commission’s studies indicate that civil rights problems occur in
    complex settings from which they cannot readily be isolated. Discrimination
    in one context is apt to be interlinked with discrimination in other
    contexts. Inferior schooling, for example, makes it difficult for Negroes
    in some areas to achieve the vote—and, combined with restriction to
    menial jobs, makes it difficult for them to assert other rights.2 Similarly,
    there can be no doubt that inequalities in educational opportunity
    necessarily produce inequality of employment opportunity;3 and, to
    complete the circle, a choice of careers that is restricted by discrimination
    undercuts the hope that might lead the minority group youth to
    pursue his education to the full extent of his capabilities.4 It is also clear
    that racial restrictions in the housing market help to produce segregation
    in the schools,5 and that this in turn generally means inferior schools
    for minority group children.6 Discrimination in housing also often
    161
    limits the choice of employment for its victims. Thus the Personnel Director
    for North American Aviation told the Commission: “When we
    move into new areas . . . there tends to be a lack of appropriate housing
    for minority groups and as a result it is difficult for us to transfer
    people into these areas . . . they can’t find appropriate housing at a
    price they can pay so they will turn the job down, maybe even give up
    the job altogether.” 7 Finally residential segregation tends to produce
    and perpetuate slums, a breeding-ground for juvenile delinquency and
    crime, which in turn invite police misconduct.8
    United Auto Workers’ President Walter Reuther described this ring
    of discrimination in the Commission’s Detroit Hearing: 9
    Discrimination begins . . . long before the Negro approaches
    the hiring stage. In most cases it begins when he is born into a
    family enjoying about half the annual income of the average white
    family ....
    In most cases . . . the Negro child is born into a black ghetto,
    a slum or near slum of overcrowded, inadequate housing. All
    too frequently he goes to a school that by any standard is inferior
    to that attended by the average white child in the same city. All
    too frequently he drops out of school too soon—either because his
    family needs whatever money he can earn or because he knows that,
    even if he continues through high school and college, his opportunities
    of getting employment of as high a level and rewarded
    with as much pay as a white person with the same educational
    accomplishments are very limited.
    These relationships suggest that no single, limited approach will bring an
    end to discrimination. While attention to one civil rights problem at a
    time may achieve substantial progress, simultaneous action on many
    fronts is far more promising. Thus the Commission’s studies of Southern
    black belt counties suggest that assuring the right to vote, fundamental
    as that is, will not quickly assure equal protection of the laws in
    other aspects of the Negroes’ life. Similarly the opening of new career
    opportunities to a particular minority will be of little use if its members
    have had no opportunity or reason to prepare themselves for such careers—
    or if they are barred from living near the “new” places of work.
    The need for broader action is underlined by the fact that problems
    of discrimination are often intimately related to other problems. For
    example, the slums that blight our urban areas pose problems of major
    concern to a Nation whose future lies increasingly in the cities. Urban
    renewal is not in itself a civil rights problem, yet discrimination—in
    housing, in education, and in employment—contributes in major degree
    to the creation and preservation of the slums. If they are to be abolished,
    discrimination will also have to go. Metropolitan planning, health,
    162
    welfare, recreation, transportation, and related programs not primarily
    concerned with civil rights objectives may fail if they do not deal with
    questions of discrimination as well.
    The close relationship of civil rights to other areas of public concern
    may also mean that measures not directly aimed at discrimination may
    be helpful in eliminating it. The Commission’s black belt study, for
    example, strongly suggests that economic measures to expedite transition
    from a one-crop agricultural economy to agricultural diversity and
    industry may ultimately do more than lawsuits to improve the economic,
    political, and legal status of black belt Negroes. Measures to broaden
    economic and educational opportunities for all may help solve civil
    rights problems throughout the Nation.
    In short a variety of approaches are needed. The methods that are
    most suitable may vary from place to place. The Southern rural black
    belt, for instance, is generations as well as miles apart from the Northern
    cities where the Nation’s minority population is now concentrating.
    In both places there are serious deprivations of civil rights, but they are
    manifested in different ways, and against different social, political, and
    economic backgrounds; the remedies may not be entirely interchangeable.
    In all circumstances, however, action of many sorts by many
    agencies—private, local, State and Federal—is needed.
    In accordance with its statutory duty this Commission has focused
    principally on the role of the Federal Government. The latter does not
    and, in the Commission’s views, should not bear exclusive or even initial
    responsibility for the achievement of equal opportunity for all. Nonetheless,
    it bears a heavy responsibility, and one that—despite great strides
    in recent years—it has not yet discharged. Accordingly, the Commission
    has made a number of recommendations for Federal action, but
    these by no means exhaust the needs or possibilities for improvement.
    Several of the Commission’s recommendations have been directed not
    to measures that in themselves would remedy civil rights deprivations,
    but to the collection of information that would make such remedies
    more easily and effectively applied. Thus the Commission has recommended
    the collection of statistical information on race, color, religion,
    and national origin in the fields of voting,10 education,11 Federal employment,
    12 and housing.12a It has found a need for such data in its own
    studies, and believes that they are often necessary for planning and
    evaluating local, State, and Federal programs as they affect equality of
    opportunity. The Commission is aware that many agencies which
    formerly recorded racial information have abandoned the practice,
    largely from fear that keeping of racial records creates or facilitates discrimination,
    and it recognizes that such records may indeed in some
    cases invite discrimination. The Commission has also found, however,
    that the lack of such information often makes it difficult to ascertain
    the extent of discrimination. The Commission’s recommendations in
    163
    this line are premised on the belief that until discrimination is no longer
    a problem of its present dimensions, more rather than less statistical
    information is needed in some areas; and that means can be found
    to obtain such information without rendering it susceptible to
    discriminatory use.13
    With regard to remedial measures intended to achieve the objective
    of nondiscrimination, the Commission has made recommendations for
    three kinds of action. It has recommended invoking the power of the
    law to enforce the requirements of the Constitution: by new statutory
    requirements,14 and by measures to facilitate enforcement of existing
    law.15 In proposing such action the Commission is not expressing a
    special confidence in punitive sanctions, but in the creative and instructive
    role that law can play—and has played—in American society.
    A number of recommendations have also been made regarding the
    use of public money. These are based on the principle recently stressed
    by President Kennedy that “Federal money should not be spent in any
    way which encourages discrimination, but rather ... [to encourage]
    the national goal of equal opportunity.” 16 On the one hand, the Commission
    has suggested in several instances that Federal financial support
    should be withheld from programs which are so administered as to discriminate
    on racial grounds.17 On the other hand, it has repeatedly
    recommended augmentation of existing programs, or establishment of
    new ones, to expand the opportunities of all citizens in education,18
    job-placement,19 vocational training,20 and housing.21
    Finally, the Commission has made several recommendations calling
    for the exertion of leadership by the President and others in the National
    Government;22 and it reiterates the need and worth of such leadership
    in the general recommendation that follows. These recommendations
    are based on the belief that the Presidency, and indeed the whole Federal
    establishment, is preeminently a place for moral leadership. The
    Commission has been impressed with the influence which those in responsible
    positions can exert on the civil rights climate of the Nation.
    By using the instruments for education and persuasion which are available
    to them they can stir the conscience of the country. By the example
    of their own conduct they can exert an influence far beyond the
    immediate occasion.
    Of course the need for forceful, enlightened leadership is not confined
    to the Federal Government. At every level of civic life—from the
    President down through mayors and police chiefs to school boards; from
    the chairman of the board to the shop superintendent; among religious
    leaders, union officials, and journalists—leadership plays a vital role
    in making clear the legal and moral obligations of the citizens of a democracy.
    Where such leadership is lacking there has been little progress—
    and sometimes regression to violence. Where it is present, there
    is no challenge that cannot be met.
    164
    GENERAL RECOMMENDATION TO THE PRESIDENT
    The Commission recommends that the President utilize his leadership
    and influence and the prestige of his office in support of equal protection
    of the laws for all persons within the jurisdiction of the United States in
    all aspects of civil and political life: by explaining to the American
    people the legal and moral issues involved in critical situations when they
    arise; by reiterating at appropriate times and places his support for the
    Supreme Court’s desegregation decisions as legally and morally correct;
    by undertaking the leadership of an active effort to stimulate the
    interest of citizens in their right of franchise; and by all other means at
    his disposal marshaling the Nation’s vast reservoir of reason and good
    will in support of constitutional law not only as a civil duty but as essential
    to the attainment of the national goal of equal opportunity for all.
    599614—61----12 165
    A STATEMENT BY COMMISSIONER HESBURGH
    This is not the usual minority statement to express a difference of
    opinion. Despite our wide diversity of backgrounds, all of the six
    Commissioners are in very substantial agreement regarding this report
    and its recommendations. It has occurred to me, having been a member
    of the Commission since its inception, that the Commission is becoming,
    more and more, a kind of national conscience in the matter of civil
    rights. As a conscience, its effectiveness depends quite completely upon
    whether it is heard, and whether the Nation and national leaders act
    accordingly.
    I am filing this personal statement because of a personal conviction
    that Federal action alone will never completely solve the problem of
    civil rights. Federal action is essential, but not adequate, to the ultimate
    solution. In the nature of the problem, no single citizen can
    disengage himself from the facts of this report or its call to action.
    Leadership must come from the President and the Congress, of course,
    but leadership must also be as widespread as the problem itself, which
    belongs to each one of us. May I then say just a few words about
    what the Commission Report, as a conscience, seems to be saying. I
    claim no special wisdom. This is just one man’s extra step beyond the
    facts of the report and its recommendations.
    To anyone who reads this report on the present status of civil rights
    in America there must come mixed emotions—some joy and satisfaction
    at the demonstrable progress that the past few years have seen, and a
    deep frustration at the seemingly senseless and stubborn pockets of
    resistance that remain all across our land. Then comes the really
    significant question: Why?
    To ask why is to become philosophical, even theological, about the
    matter. Why does America, the foremost bastion of democracy, demonstrate
    at home so much bitter evidence of the utter disregard for
    human dignity that we are contesting on so many fronts abroad? Americans
    might well wonder how we can legitimately combat communism
    when we practice so widely its central folly: utter disregard for the
    God-given spiritual rights, freedom, and dignity of every human person.
    This sacredness of the human person is the central theological and
    philosophical fact that differentiates us from the communistic belief
    that man is merely material and temporal, devoid of inherent inalienable
    rights and, therefore, a thing to be manipulated, used, or abused for
    political or economic purposes, without personal freedom or dignity,
    defenseless before the state and the blind laws of economic determinism.
    It is not enough to reject this inhuman communistic doctrine. We
    must demonstrate that we have something better to propose in its stead,
    166
    and that this something works better, and is better for all mankind,
    here and everywhere. The most depressing fact about this report is its
    endless tale of how our magnificent theory of the nature and destiny
    of man is not working here. Inherent in the depressing story is the
    implication that it is not working because we really do not believe in
    man’s inner dignity and rightful aspiration to equality—unless he
    happens to be a white man.
    Some white men in very recent years have kicked, beaten, or shot a
    Negro to death and have not even been indicted because of a jury’s
    prejudice or a legal technicality, while “among these rights are life,
    liberty, and the pursuit of happiness.”
    The pursuit of happiness means many good things in America: equal
    opportunity to better one’s self by a good education; equal opportunity
    to exercise political freedom and responsibility through the vote; equal
    opportunity to work and progress economically as all other Americans do;
    and equal opportunity to live in decent housing in a decent neighborhood
    as befits one’s means and quality as a person. If the pursuit of happiness
    does not mean at least these things to Americans reading this report,
    then they have not recognized the splendor of the American dream or the
    promise of the American Constitution.
    Now read the pages. They are filled with a record of people, again
    good, intelligent people, working with all their energy and talent to
    make a travesty of this dream and this promise. These people who are
    trying to pervert our Western ideal of the dignity, the freedom, and the
    rights of every human person are not Communists. They are Americans,
    but white Americans denying what they enjoy, and I trust cherish, to
    Negro Americans.
    Some of the sorry efforts are crude: like the reign of terror to deter
    Negroes from registering and voting (vol. i, pp. 163-64), or the application
    of double standards in the matter: one for whites and the other
    for Negroes (vol. 1, pp. 86, 161-62). Other efforts are heartless:
    denying the Negro American decent schooling on all levels—even industrial
    and agricultural training—which means another long generation
    of menial jobs and wasted talents and blighted hopes, all to America’s
    loss (vol. 2, pp. 79-98; vol. 3, pp. 97-101). Still other efforts are
    sentimental: a way of life, right or wrong, is more important than what
    happens to other human beings and to our country in the process. Perhaps
    we could establish a stronger alliance against these outrages if we
    were to meditate more deeply on the true import of our Christian heritage.
    Could we not agree that the central test of a Christian is a simple
    affirmative response to the most exalted command mankind has ever
    received: “Thou shalt love the Lord thy God with thy whole heart, and
    thy whole soul, and thy whole mind, and thy neighbor as thyself ” No
    mention here of a white neighbor. There was another similar statement,
    167
    “Whatsoever you did (good or evil) to one of these, my least brethren,
    you did it to Me.” We believe these truths or we do not. And what we
    do, how we act, means more than what we say. At least, the Communists
    admit that they do not believe as we do. At least they thus
    avoid hypocrisy.
    Lest I seem to be unduly harsh on the South, let me underline another
    story often repeated in these pages, which is a specialty of the
    North and East and West. There is the sophisticated approach of the
    financial community which says its concern in financing housing is
    purely economic as though this might somehow cancel out the moral
    dimension of what their lack of moral concern causes to happen to
    human beings, fathers, mothers and children, not Martians, but Americans,
    who live in blighted neighborhoods with no hope of the most
    elemental physical well-being without which human dignity and decent
    lives become impossible. Then there are the unspoken, but very effective
    conspiracies of builders, real estate brokers, and good neighbors who are
    downright arrogant in preserving the blessings of democracy for their
    own white selves alone (vol. 4, pp. 2-3, 122-26).
    Well, if the report says anything it demonstrates that we are reaping
    the effects of our many discriminatory practices. We spend billions of
    dollars trying to convince the uncommitted nations of the world (about
    90 percent non white) that our way of life is better than communism,
    and then wipe out all the good effects by not even practicing “our way”
    in our own homeland. We are all excited about Communist subversion
    at home while we perpetuate a much worse and studied subversion of
    our own Constitution that corrodes the Nation at its core and central
    being—the ideal of equal opportunity for all. What can we expect for
    the future, if one-tenth (and predictably at the end of this century, onefifth)
    of our population are second-rate citizens, getting a second-rate
    education, living in second-rate houses in second-rate neighborhoods,
    doing all of the second-rate jobs for second-rate pay, and often enough
    getting second-rate justice. What can we expect if this continues? I
    suspect that we will have a fifth of the Nation being second-rate citizens,
    and the rest of us can hardly be expected to be classed first rate by the
    rest of the world in allowing this, especially while we continue to profess
    a strong belief in equal rights and equal opportunity.
    Personally, I don’t care if the United States gets the first man on the
    moon, if while this is happening on a crash basis, we dawdle along here
    on our corner of the earth, nursing our prejudices, flouting our magnificent
    Constitution, ignoring the central moral problem of our times,
    and appearing hypocrites to all the world.
    This is one problem that needs more than money. Basically, it needs
    the conviction of every American, of every walk of life, in every corner
    of America. We have the opportunity in our time to make the dream
    168
    of America come true as never before in our history. We have the challenge
    to make the promise of our splendid Constitution a reality for all
    the world to see. If it is not done in our day, we do not deserve either
    the leadership of the free world or God’s help in victory over the inhuman
    philosophy of communism. Even more fundamentally than
    this, we should as a Nation take this stand for human dignity and make
    it work, because it is right and any other stance is as wrong, as un-
    American, as false to the whole Judeo-Christian tradition of the West
    as anything can be.
    Maybe more constructive action will come sooner if we allow ourselves
    the unfashionable and unsophisticated taste of moral indignation:
    when known murderers go untried and unpunished with the studied
    connivances of their fellow citizens (vol. 5, ch. 3); when brutal fear
    is forced even upon women and children in America (vol. 5, ch. 3);
    when economic reprisals are used to prevent qualified American citizens
    from voting, but they are not exempted from paying taxes and serving
    in the Armed Forces (vol. 1, pp. 91-97); when little children are stoned
    by a vicious mob because they dare to go to a decent school long denied
    them {The New Orleans School *Crisis p. 16); when people are intimidated,
    embarrassed, and jailed because they presume to eat in a
    public place with other people (see vol. 1, p. 4; vol. 5, ch. 3); when
    a place for homes becomes, by neighborhood action, an empty park
    because Americans think they will be contaminated by Americans (vol.
    4, pp. 133-34); when Negro Americans help pay for a new hospital
    and then are told there is no place in it for them (vol. 4, p. 84); when,
    God help us, even at death Negro Americans cannot lay at rest alongside
    of other Americans (California Hearings, p. 704).
    You may think by now that I have taken considerable license with
    the mandate of our Commission “to appraise.” Perhaps I have, and
    if these remarks seem intemperate, the facts that support them are all
    between the covers of this report, and in other publications of the
    Commission.
    I believe, as my fellow Commissioners do, that a report should be
    objective and factual. But, unless there is some fire, most governmental
    reports remain unread, even by those to whom they are addressed:
    in this case, the President and the Congress.
    I have no illusions of this report climbing high on the bestseller list,
    because much of what it says is unpleasant, unpopular, and to sensitive
    people, a real thorn in the conscience. My words then are simply to
    say that I have a deep and abiding faith in my fellow Americans: in
    their innate fairness, in their generosity, in their consummate good will.
    My conviction is that they simply do not realize the dimensions of this
    *Report of the Louisiana State Advisory Committee to the Commission
    on Civil Rights.
    169
    problem of civil rights, its explosive implications for the present and
    future of our beloved America. If somehow the message, plain and
    factual, of this report might reach our people, I believe they would see
    how much the problem needs the concern and attention of every
    American—North, South, East, and West. If this were to happen,
    then the problem would be well on its way to a solution. But without
    the personal concern of all Americans, the problem of civil rights is well
    nigh insoluble in our times. If so, not just Negro Americans, but all
    of us, and all the world, will be the losers.
    170
    Documentation—Book 5
    Part VII—EQUAL JUSTICE UNDER LAW
    NOTES: JUSTICE, Chapter i
    i. National Commission on Law Observance and Enforcement, Report
    on Lawlessness in Law Enforcement 4 (1931).
    2. The President’s Committee on Civil Rights, To Secure These Rights
    25-27(1947).
    3. United States v. U.S. Klans, 194 F. Supp. 897, 902 (M.D. Ala.,
    1961).
    4. See discussion in ch. 3 at 41, infra.
    5. The President’s Committee on Civil Rights, op. cit. supra, note 2,
    at 24.
    6. The Civil Rights Act of 1957, sec. 104(a) (2) (3), 71 Stat. 635, 42
    U.S.C. sec. 19750(a) (2) (3) (1958). A more lengthy discussion
    of the Commission’s jurisdiction is found in ch. 2 at 25, infra.
    J. Norris v. Alabama, 294 U.S. 587 (1935).
    8. See dicta in Johnson v. Y eilding, 165 F. Supp. 76 (M.D. Ala.,
    1958).
    9. See, for example, United States v. Lynch, 94 F. Supp. 1011, 1014
    (N.D. Ga. iggo),aff’d, 189 F. 2d 476 (5th Cir. 1951), cert, denied,
    342 U.S. 832 (1951).
    10. United States v. Konovsky, 202 F. 2d 721 (7th Cir. 1953); United
    States v. Lynch, supra, note 9; also see United States v. Trierweiler,
    52 F. Supp. 4,7 (E.D. Ill. 1943).
    171
    NOTES: JUSTICE, Chapter 2
    1. In two of the incidents described in the text the officers were convicted
    in a Federal civil rights prosecution—the Screws case infra,
    at 6 and the Clark case infra, at 14. Since the Civil Rights Section
    of the Department of Justice became a Division in December
    1957, it has obtained police brutality convictions from juries in four
    cases, while in two cases the defendant officers entered pleas of
    nolo contendere. See ch. 4 at 66 inf ra. In none of these cases were
    the victims known to be minority group members, except in the
    Clark case wherein the victim was a Canadian born Indian.
    2. Federal Bureau of Investigation, Uniform Crime Reports—1960 at
    Io5 The total for 3,779 cities with a total population
    of 103,493,753 is 195,109, which figure includes civilian employees.
    3. Id. at 1.
    4. Id. at 19 and 104.
    5. Id. at 106.
    6. Record, p. 109, Screws v. United States, 325 U.S. 91 (1945).
    7. Id. at 114.
    8. 14 Stat. 27 (1866), 18 U.S.C. sec. 242 (1958).
    9. Screws v. United States, supra, note 6.
    10. A full discussion of the statute, the Screws case, and other aspects
    of the enforcement of the Civil Rights Acts are found in ch. 4 infra.
    11. United States v. Screws, Crim. No. 1300, M.D. Ga., Nov. 1, 1945.
    12. Record, supra, note 6, at 171.
    13. Id. at 60.
    14. This description is based primarily on the testimony of these white
    eyewitnesses: Mr. A. B. Edwards (id. at 79-82), Mrs. A. B. Ledbetter
    (id. at 83-85), Mr. A. B. Ledbetter (id. at 85-89), Mrs. Mabel
    Burke (id. at 105-106), and Mrs. Ollie Jernigan (id. at 89-92).
    15. AZ. at 93.
    16. Id. at 120.
    17. Id. at 67-68.
    18. Special Agent Marcus B. Calhoun of the FBI office testified at the
    trial that, “Mr. Screws . . . told me that he had had trouble with
    Bobby Hall, that he seemed to be a leader or denominated himself
    as such and that when a Negro got in trouble with the law that he,
    Bobby Hall, would advise him as to what action he should take.”
    Record, supra, note 6, at 78.
    19. Information from the Department of Justice, as quoted in Carr,
    Federal Protection of Civil Rights 107(1947).
    20. See ch. 6 at 79, infra.
    21. The description of the Brazier case is largely based on evidence
    gathered in an investigation by Commission representatives in late
    August, i960 and incorporated into a Commission document en-
    172
    Notes: Justice, Chapter 2—Continued
    titled Report on Field Investigation In Terrell County, Georgia.
    Four Negro eyewitnesses to various parts of the Brazier incident
    were interviewed and statements taken from them. In addition,
    statements were received from other Negro eyewitnesses who were
    not then available to be interviewed. Four white people were interviewed
    regarding the case.
    In addition to the Brazier incident other cases in Terrell County
    involving alleged police brutality to Negroes were investigated on
    this field trip. The evidence supporting complaints in these cases
    was not as strong as that in the Brazier case.
    22. Id. at 10-12.
    23. This information comes from the Certificate of Death of James
    Brazier and from an interview with a doctor who attended the
    victim at the Columbus Medical Center, Report on Field Investigation
    in T err ell County, Georgia, supra, note 21, at 18.
    24. Affidavit of Mrs. Hattie Bell Brazier, and Report on Field Investigation
    In Terrell County, Georgia, supra, note 21, at 14. Although
    their hourly wages were not high, Mrs. Brazier explained, she had
    three jobs and her late husband, two. They sometimes worked at
    menial tasks from early morning until late at night. This allowed
    them to purchase the automobiles. Interview With Mrs. Hattie Bell
    Brazier, Albany, Ga., August 23, i960.
    25. Affidavit of Mrs. Hattie Bell Brazier, and Report on Field Investigation
    in Terrell County, Georgia, supra, note 21, at 12-13.
    26. Earlier in the Spring of 1958 Mrs. Brazier alleged that Officer “X”
    saw the Brazier’s new car and asked them how they managed to
    purchase it. James Brazier replied flippantly, “I works for what I
    gets.” And “X” countered in a threatening tone, “You’ll never remember
    paying for it.” Mrs. Brazier said that this took place in
    her presence, and it is set out in her affidavit and in Report on Field
    Investigation In Terrell County, Georgia, supra, note 21, at 14.
    27- Affidavit of Mrs. Hattie Bell Brazier and Report on Field Investigation
    in Terrell County, Georgia, supra, note 21, at 15.
    28. Affidavit of Mrs. Hattie Belle Brazier, Affidavit of James Brazier,
    Jr. (aged 10), and Report on Field Investigation in Terrell County,
    Georgia, supra, note 21, at 16. Mrs. Brazier explained in a subsequent
    interview that the shock of this incident brought on a nervous
    condition in James, Jr., and forced her to send the boy to live with
    his grandmother in the North. Interview With Mrs. Hattie Bell
    Brazier, Albany, Ga., August 23, i960.
    29. In addition to the affidavit of Mrs. Brazier this story is supported by
    several colored eyewitnesses interviewed by Commission representa-
    W3
    Notes: Justice, Chapter 2—Continued
    tives in Georgia. Report on Field Investigation in Terrell County,
    Georgia, supra, note 21, at 16.
    30. See note 35, infra.
    31. Affidavit of Mrs. Hattie Bell Brazier, and Report on Field Investigation
    in Terrell County, Georgia, supra, note 21, at 20. Mayor James
    Griggs Raines of Dawson reported in an interview with two Commission
    representatives that he felt that Sheriff Mathews was a bad
    influence on Dawson policemen. “In my opinion the Sheriff,
    Mathews, is unfit and has violated the Civil Rights Acts. I’ve seen
    him beat a pregnant Negro woman. He’s unfit to hold office. You
    can quote me,” the Mayor stated. Id. at 40.
    32. Washington Post, June 8, 1958, p. A-12.
    33. Atlanta Constitution, June 9, 1958, pp. 1-5; June 10, 1958, pp. 1, 8.
    34. The Government contended that the officers had violated 18 U.S.C.
    sec. 242 because by these acts of brutality they had “under color of
    law” interfered with the constitutional rights of the victims.
    35. Although Marvin Goshay was subpenaed by the Federal Government
    to testify before the grand jury sitting in Macon, he did not
    appear. In his sworn statement to a Commission representative
    Goshay explained that shortly after he received the subpena, Officer
    “Y” found him walking on the street in Dawson and ordered him
    to jail. When the Negro asked why he was being incarcerated, “Y”
    replied, “You just need to be in jail.” The young man was kept
    prisoner for 1 week, during which time the Federal grand jury met
    and refused indictments. One week later, “Officer [“Y”] came in
    and told me I could go on home,” Goshay explained. “I never was
    brought to . . . court during this time. I just stayed in jail. I
    can only guess, although no one ever told me, that the only reason
    I was locked up was because they didn’t want me to go to Macon.”
    Goshay was slated to be a witness in a pending Federal civil suit
    for $177,000 brought by Mrs. Brazier against Officer “Y” and
    others. On March 14, 1961, Marvin Goshay was found dead—
    apnarently of asphyxiation—in a Dawson undertaking parlor. An
    FBI investigation failed to uncover evidence of foul play.
    36. Those rural, southern counties which have a high percentage of
    non whites in their population are the subject of a separate and detailed
    analysis in this report. See part HI, supra.
    37. Report on Field Investigation in Terrell County, Georgia, supra,
    note 21, at 5.
    38. In addition to the Brazier case, there are recent cases containing
    similar allegations in the files of the Commission. Some of these
    have been referred to the Department of Justice for possible prosecutive
    action.
    174
    Notes: Justice, Chapter 2—Continued
    39. Report of the Mississippi Advisory Committee to the Commission on
    Civil Rights, The 50 States Report 315, 317 (1961). The following
    two cases, which came to the attention of the Commission from
    sources other than the Mississippi Advisory Committee, are illustrative
    of reports from that State.
    On August g, 1958, about midday, Theodore R. Nash was stopped
    by a deputy sheriff 5 miles north of Winona, Miss., on a charge of
    reckless driving. In the car with Nash were his wife, Geraldine,
    his daughter, Pearlie Mae Boatman, and four small children under
    6 years of age—all Negroes. Nash was a native of Mississippi but
    had lived in Milwaukee, Wis., since 1950. When this incident
    occurred, he and his family were on a vacation trip. The Nashes
    reported to the Commission that the following events took place:
    The deputy sheriff roughly ordered Nash to the nearby office of a
    justice of the peace. While outside the office, an altercation developed.
    The officer allegedly kicked Mrs. Nash, because she protested
    that they had not been speeding; and the justice of the peace
    is alleged to have struck her on the side of the head with his fist and
    to have dragged her along by her arms and hair because Mrs. Nash
    replied “No”—without adding a “Sir”—to a question from the
    justice. At one point the officer cocked his pistol and threatened
    Mr. Nash: “I just wish you would make any kind of an attempt, I
    would blow your damn brains out here in the street, and I wouldn’t
    have anything to do except to write out a statement that you are
    tempting the law, and there won’t be nothing done about it.”
    When the babies in the car started to cry, the officer told Nash’s
    daughter, “If you don’t quiet them, I’ll take this pistol handle and
    beat their damn brains out into the seats and there won’t be enough
    of them left to try to bury.” Mrs. Nash was placed in jail but was
    soon released after fines of $19 (for resisting arrest) and $34 (for
    reckless driving) were paid on the spot. The officers then told the
    family to “Get out of here—and don’t be caught in here any more”
    on pain of death. “They told us that they were going to stop us
    northern niggers from coming down there. They said these niggers
    get up here in the northern state[s] around these damn rich Jews,
    saying ‘Yes’ and ‘No’ and think that they can come down there in
    Mississippi doing the same thing, but before they would take that
    they would kill every nigger that comes down here and kill them
    and nothing would be done whether they were in the right or
    wrong. They said they make the laws and they break them as they
    see fit to do.”
    This information comes from (1) an affidavit executed by
    Theodore Nash on October 4, 1958, and (2) a statement given to a
    W5
    Notes: Justice, Chapter 2—Continued
    Commission representative on January 27, 1961, by Mr. Nash, Mrs.
    Nash, and Pearlie Mae Boatman, their daughter. This case was investigated
    by the Department of Justice. No prosecution was authorized
    because no corroboration beyond the story told by the Nash
    family regarding the violence was available. The officers alleged
    that Mrs. Nash attacked them and had to be subdued. Interview
    with Civil Rights Division attorney.
    In early April 1961, a wire service photograph appeared in newspapers
    and magazines across the country. Life, April 7, 1961, p. 30.
    It showed policemen in Jackson, Miss., armed with clubs moving
    into a crowd of retreating, well-dressed Negroes. A German
    Shepherd dog on a leash had leaped upon a Negro and seemed
    about to bite his arm. The man was later identified to the Commission
    as Reverend S. Leon Whitney, the Pastor of the Farish
    Street Baptist Church and one of the most prominent Negro clergymen
    in Jackson. He suffered a severe laceration of his arm from
    the dog’s attack. Other Negroes in the crowd also suffered injuries
    including an elderly man, W. R. Wren, whose arm was
    broken. The incident started when a group of Negroes applauded
    nine Negro students who were going into court to be tried in connection
    with Mississippi’s first sit-in demonstration which had occurred
    in a public library. The applauding Negroes did not commit
    or threaten violence. After driving them away with clubs and
    dogs, the officers returned and asked a nearby crowd of approximately
    70 white persons to disperse. United Press Intemationl dispatch
    as reported in the N.Y. Times, March 30, 1961, p. 19.
    40. Detroit Hearings 433 (attributed to a Negro columnist in the Statement
    of Judge Victor J. Baum).
    41. In five of the six successful police brutality prosecutions under section
    242 by the Civil Rights Division, Department of Justice since
    January 1, 1958, the officers apparently were primarily motivated
    by a desire to punish for other than racial reasons. In only one of
    these five cases—the Clark case, described at 14, infra—was the
    victim known to be a minority group member; and in that case this
    did not appear to be a major factor. The facts in the other four
    “punishment” cases are as follows: (This information comes from
    interviews with Civil Rights Division attorneys and from the indicated
    annual Reports of the Attorney General.)
    In United States v. Koch, Crim. No. 18,850, E.D. Ill., June 17,
    1958, complaints were made to the Department of Justice alleging
    that prisoners of the St. Clair County Jail in East St. Louis, Ill.,
    had been subjected to sadistic punishment for such offenses as violation
    of jail rules. Three deputy sheriffs were indicted and on
    176
    Notes: Justice, Chapter 2—Continued
    June 17, 1958, pled guilty. See Annual Report of the Attorney
    General of the United States for the Fiscal Year Ended June 30,
    1958 at 177-78, and ch. 4, note 194, infra.
    In United States v. Saxon, Crim. No. Cp. 2091, M.D. Ala., June
    11, 1958, the sheriff of Coosa County, Ala., was charged with having
    beaten two men with his fists and a blackjack at a filling station in
    Goodwater, Ala. The sheriff, H. Pierce Saxon, was reportedly annoyed
    at a remark one of the men made concerning Saxon’s bright
    headlights. A Federal grand jury indicted Saxon on September
    11, 1957, but trial in November 1957 resulted in a hung jury. On
    July 11, 1958, Sheriff Saxon entered a plea of nolo contendere (no
    contest). See Annual Report of the Attorney General of the United
    States For The Fiscal Year Ended June 90, 1958 at 177, and ch. 4,
    note 194, infra.
    In United States v. Barber, Crim. No. 1428, M.D. Ga., Mar. 18,
    1959, a police officer of Nashville, Ga., was convicted on evidence
    that he had beaten John Lester Teal, the manager of a Valdosta
    jewelry store. Barber, while off duty and in plain clothes, had
    beaten Teal because he had insulted Barber’s daughter in the
    course of an attempted repossession of a ring. As the beating was
    taking place, another officer, Hancock, arrived but did nothing to
    stop it. At the station house later Hancock allegedly held Teal
    while Barber beat him again. Hancock was tried but acquitted.
    Barber was convicted on March 18, 1959. See Report of the Attorney
    General Of the United States for the Fiscal Year Ended June 30,
    1959 at 187, and ch. 4, note 193, infra.
    In United States v. Payne, Crim. No. 55,788, N.D. Ga., Mar.
    25, T959> evidence indicates that Herbert C. Payne, a police
    officer of the town of Lyerly, Ga., incited a mob to beat the victim
    on two separate occasions. The victim was known as the town
    drunk, a ne’er-do-well, and had a reputation for beating his children.
    The announced purpose of the attacks was to force him to
    leave town. Payne and a nonofficial member of the mob
    were indicted under section 242 and under 18 U.S.G. sec. 371 for
    conspiracy to violate section 242. Payne was convicted on
    March 25, 1959, under the conspiracy charge. See Annual Report
    of the Attorney General of the United States For the Fiscal Year
    Ended June 30, 1939 at 188, and ch. 4, note 193, infra.
    42. See discussion of “Force Permissible” in Orfield, Criminal Procedure
    From Arrest to Appeal 26-27 (J947)-
    4*3 National Commission on Law Observance and Enforcement, Report
    on Lawlessness in Law Enforcement 190 (1931).
    44. Detroit Free Press, Sept. 10, 1959, pp. 1, 3.
    Notes: Justice, Chapter 2—Continued
    45. Detroit Free Press, Sept. 13, 1959, p. A-i. The testimony of Commissioner
    Hart of this incident is found in Detroit Hearings 392-93.
    46. Detroit Free Press, supra, note 45.
    47. Ibid.
    48. Ibid.
    49. Prosecutor Olsen’s description of his investigation of this incident is
    found in Detroit Hearings 502-503.
    50. Information on this case was obtained from Department of Justice
    attorneys in the Civil Rights Division.
    51. The prosecution was based on 18 U.S.C. sec. 242.
    52. Information on this case comes from interviews with Civil Rights
    Division attorneys and from a review of the extensive trial transcript
    in the files of the Department of Justice.
    53. There were 23 indictments alleging (1) that the defendants were
    guilty of conspiracy under 18 U.S.C. sec. 241 and (2) were further
    guilty under 18 U.S.C. sec. 371 by conspiring to violate 18 U.S.C.
    sec. 242. Section 371 is the general Federal conspiracy statute.
    54. Record, p. 2838-39, United States v. Dunn, Crim. No. 11,205,
    S.D. Fla., Aug. 8, i960.
    55. Id. at 2840.
    56. Id. at 2843.
    57. Id. at 4634. The precise legal issues in the Raiford case and in
    similar cases are discussed in ch. 4, infra.
    58. National Commission on Law Observance and Enforcement, op.
    cit. supra, note 43, at 4.
    59. Brown v. Mississippi, 297 U.S. 278,285-86 (1936).
    60. Brown v. Mississippi, supra note 59; cases set forth in app. VII,
    table 1; U.S. Const, amend. V.
    61. Orfield, Criminal Procedure from Arrest to Appeal 34 (1947). For
    a compilation of State statutes relating to prompt arraignment and to
    confessions made prior to arraignment, see Hearings on Confessions
    and Police Detention Before the Subcommittee on Constitutional
    Rights of the Senate Committee on the Judiciary, 85th Cong., 2d
    sess., 669-748 (1958).
    62. See, for example, the Hearings cited in note 61, and Illinois Division,
    ACLU, Secret Detention by the Chicago Police 5, 24-28 (1959) >
    also see the article by Harold Norris, “Arrests Without Warrant,”
    as reproduced in Detroit Hearings 481-84.
    63. Illinois Division, ACLU, op. cit. supra, note 62, at 14-15. A review
    of the cases listed in app. VII, table 1 reveals that lengthy detention
    was a common circumstance surrounding coerced confessions.
    64. See app. VII, table 1.
    65. Blackburn v. Alabama, 361, U.S. 199, 206 (i960).
    178
    Notes: Justice, Chapter 2—Continued
    66. The two cases were Rochin v. California, 342 U.S. 165 (1952), and
    Reck v. Pate, 367 U.S. 433 (1961). In the Rochin case, the victim’s
    stomach was pumped to obtain narcotics he had swallowed.
    The brutality in the Reck case actually occurred in 1936. See app.
    VII, table 1.
    67. See app. VII, table 1.
    68. Report of the Alabama Advisory Committee to the Commission on
    Civil Rights, The 50 States Report, 10-11 (1961). The Report
    stated:
    As regards the question of the use of the “third degree” by
    the police to extort confessions from persons who were arrested
    on suspicion without any legal evidence, 24—or roughly 50
    percent of our respondents—reported that police in their area
    allegedly have been known to make use of force and intimidation
    in order to extort confessions from prisoners. Among the
    “third degree” methods mentioned by these respondents were
    some of the standard practices of police brutality. At least 14
    of the respondents indicated that police were known to slap victims
    in the face. Thirteen reported the alleged use of assault
    by the police in kicking or mugging victims. Twelve of the
    respondents cited the alleged use of lashing, whippings, beatings,
    sluggings with fists, and scourging with weighted rubber hoses.
    An almost equal number cited the “third degree” practice of
    hours-long questioning under strong lights. Ten referred to the
    strong-arm methods of twisting of arms and 7 reported alleged
    other excessive punishments used by police in the “third-degree”
    method. Two cited alleged instances where police made use of
    electricity, either in batteries or in live wires, to shock victims in
    order to extort confessions.
    In its study the Alabama Committee sent questionnaires to 120
    State citizens; 46 questionnaires—25 from Negroes and 21 from
    whites—were returned in time to be used in its Report. Id. at 4-5.
    69. This conviction was appealed to the Ninth Circuit—Pool v. United
    States, 260 F. 2d 57 (1958)—which upheld the district court. The
    evidence indicated severe and protracted beating; it is summarized in
    260 F. 2d at 59-63.
    70. This was the case of United States v. Lowery, Crim. No. 13,235 S.D.
    Tex., Feb. 19, 1958; also see Report of the Attorney General of the
    United States for the Fiscal Year Ended June 30, 1958 at 177, and
    ch. 4, note 193, infra.
    71. Interviews with Civil Rights Division attorneys.
    72. This is a forthcoming study by Arnold S. Trebach, Defendants and
    Defenders, dealing with the realities of the criminal process. The
    179
    Notes: Justice, Chapter 2—Continued
    breakdown on the prisoners interviewed was as follows: New Jersey
    State Prison, 146; Bordentown Reformatory, N.J., 99; Holmesburg
    Prison, Philadelphia, 39; Federal Penitentiary, Lewisburg, Pa., 75.
    73. Trebach, op. cit. supra, note 72. Seventy-five Federal prisoners were
    interviewed, many of whom were arrested by agencies other than the
    FBI such as Treasury Agents, Postal Inspectors, and Military Police.
    In general, Federal police agencies—with the exception of the
    Military Police—fared better in the written and spoken opinions
    of the prisoners than did State or local police agencies.
    In the process of explaining the methods by which the FBI
    maintains its excellent record on convictions without coercion, Director
    J. Edgar Hoover stated, “Civil rights violations are all the
    more regrettable because they are so unnecessary . . . Technical
    crime-detection methods have greatly reduced arbitrary intrusions
    on civil liberties. The apprehended suspect ‘won’t talk’: Thirddegree
    methods, the ill-trained officer might think, perhaps a severe
    beating, will force a confession. But the trained officer, schooled
    in the latest techniques of crime detection, will think otherwise—he
    will go to work locating a latent fingerprint, a heel-print in the mud,
    or a toolmark on the safe.” Quoted in Frank and Frank, Not
    Guilty 185 (1957)- See also, Statement of FBI, ch. 6, note 59,
    infra.
    74. Trebach, op. cit. supra, note 72, table 19.
    75. Trebach, op. cit. supra, note 72.
    76. Detroit Hearings 370.
    77. Ibid.
    78. Id. at 370-71.
    79. Id. at 371.
    80. Id. at 321-22.
    81. Id. at 329.
    82. 365 U.S. 167 (1961). See discussion in ch. 5 at 72-73, infra.
    83. These are the words of Justice Frankfurter in dissent, 365 U.S. at
    203-204.
    84. Information on this case comes from conferences with officials at
    the Department of Justice and also from The Cleveland Call and
    Post, Sept. 12, 1959, p. 1.
    85. Cleveland Press, Sept. 7, 1959, p. 8.
    86. Cleveland Plain Dealer, April 22, i960, p. 9.
    87. Statement in Commission files entitled “Document No. 7 on Human
    Rights in Alabama.” There have now been 14 such “Documents,”
    issued by the Inter-Citizens Committee of Birmingham, dealing with
    alleged police brutality and interracial violence in Alabama, primarily
    in the Birmingham-Bessemer area.
    180
    Notes: Justice, Chapter 2—Continued
    88. The statute invoked was 18 U.S.C. sec. 242.
    89. This was the language of the original determination as explained in
    a subsequent letter from H. S. Kendrick, Adjudication Officer,
    Montgomery Regional Office, Veterans Administration to Theotis
    Crymes, January 18, 1961.
    90. Letter From A. H. Monk, Associate Deputy Administrator, Veterans’
    Administration to the Commission, May 15, 1961.
    91. Letter From A. H. Monk to the Commission, June 30, 1961.
    92. The statements that follow in the text are taken from the decision
    of the Philadelphia Police Advisory Board in this case: Complaint
    of Mr. Eugene Hutchins against Policeman [name omitted], No.
    4119, and [name omitted], No. 4026, October 5, i960, DN No. 83.
    93. Ibid. [Emphasis added]. A rehearing was held on this case
    because the officers claimed that there was new evidence to
    support their defense. The Board sustained its original findings
    and the Police Commissioner of Philadelphia indicated his intention
    to impose the recommended punishment. Commission field notes.
    A brief field trip was made to Philadelphia to study, among other
    things, the operation of the Advisory Board. See ch. 6 at 83, infra.
    94. These reports have emphasized that intelligent and articulate policemen
    can manipulate people who might resort to violence so as to
    prevent it. Regarding the criminal element, a New Orleans police
    training pamphlet quotes an officer as saying: “Well, let’s say that
    you are dealing with hoodlums. You have to fight fire with fire.
    You cannot talk ‘sweet talk’ to hoodlums. You have to be firm
    and decisive. You cannot show the least sign of softening or indecision.
    That doesn’t mean that you have to ‘hit them’, but you have
    to let them know that you are in command of the situation.” New
    Orleans Police Department, Human Relations and Effective Police
    Action 8 (1952). Martin Barol, executive director of the Philadelphia
    Police Advisory Board, related that, “In speaking to many
    of the older men in the Department. ... I was pleasantly surprised
    to hear statements such as: Tn my eighteen years on the Force, I
    have only had occasion to pull my gun twice,’ or, ‘I pulled my gun
    only once in my years on the Force and that includes five years in
    homicide.’ ” Barol, Police Training in Human Relations 2 (1961)
    (unpublished paper).
    95. Detroit Hearings 328.
    96. Detroit Hearings 372. [Emphasis added.]
    97. Kephart, “The Negro Offender: An Urban Research Project,” 60
    Am.], of Sociology 46-50 (1954).
    98. Westley, “Violence and the Police,” 59 Am. J. of Sociology 34, 38
    (1953). This study took place in an industrial city of about 150,-
    599614—61——13 l8l
    Notes: Justice, Chapter 2—Continued
    000 population. Seventy-three policemen, approximately half of
    the total police force, were asked: “When do you think a policeman
    is justified in roughing a man up?” Thirty-seven percent of the
    officers thought it was justified when an individual showed disrespect
    for the police.
    99. For example, it was alleged that in May 1961 several of the Negro
    “Freedom Riders,” including a 19-year-old girl, were struck by
    Mississippi jail officials for not saying “Sir” to them. When
    Reverend Cordy T. Vivian of Nashville was released after posting
    bond, a photograph was taken showing “the bloodstains on the
    clerical clothes he was wearing when attacked by the jailer.” Norfolk
    Journal and Guide, June 17, 1961, p. 10. Also, see the Nash
    case, supra, note 39. There are other statements in Commission
    files alleging such practices.
    100. See p. 8, supra.
    101. See p. 11, supra, and ch. 6 at 83, infra.
    102. See chs. 4 and 5, infra.
    103. See, e.g., Screws v. United States, 325 U.S. 91 (1945)-
    104. Seech. 1 at 2, supra.
    105. This view was set forth as dictum in the Slaughterhouse Cases,
    83 U.S. (16 Wall.) 36 at 81 (1873). Later cases (see notes 106
    and 107 infra) definitely give a far broader meaning to the equal
    protection clause.
    106. Catlette v. United States, 132 F. 2d 902, 906-907 (4th Cir. 1943).
    107. Lynch v. United States, 189 F. 2d 476, 479 (5^ Cir. I95 )’ cert,
    denied, 342 U.S. 831 (1951).
    1
    108. The seriousness of the problem of police brutality in quantitative
    terms is documented by the cases described in this Report; by many
    similar reports in Commission files not included in this Report; by
    the many complaints received by the Department of Justice, see
    app. VII, tables 2 and 3; and by the opinion of Department of
    Justice officials that many acts of brutality are not reported to
    officials due to apathy, fear, or ignorance, see ch. 4 at 58, infra.
    In qualitative terms the problem must be considered serious because
    any act of unlawful violence, especially by an official, is
    harmful to our society. The effect of such acts on the Negro
    community is described in Willis Ward’s testimony, p. 27, infra.
    The seriousness of this situation is also suggested by this excerpt
    from a recent study by Bullock entitled The Houston Murder
    Problem 80-81 (1961):
    Negroes also have a “Bully” image of Houston’s policemen.
    Whenever one hears about the police descending upon a
    group of Negroes, there is always raised this question: “How
    182
    Notes: Justice, Chapter 2—Continued
    many heads were whupped?” The reasons for this attitude
    grow out of the spread of reports concerning instances of
    police brutality. * * *
    Gradually and insidiously, these reports seep into the minds
    of Negroes and reinforce ugly images about all of Houston’s
    policemen. Therefore, when Negroes are asked what they
    think of policing in Houston, their response is a series of
    negative attitudes that are heavily laden with disrespect. We
    asked this question of more than five hundred (500) people,
    and we got attitudinal patterns that were generally negative.
    109. See ch. 6 at 82 and 87, infra.
    110. See ch. 4 at 57-58, infra.
    in. Harold R. Tyler, Jr., former Assistant Attorney General in charge
    of the Civil Rights Division, wrote the Commission on October 18,
    1961, in this connection:
    As most lawyers are aware, there has been an increasing tendency
    over the years for defendants and their counsel in criminal cases,
    particularly those of the common law variety, to raise by way
    of defensive matter the issue of coercion or improper treatment
    at the hands of the police. I feel that this phenomenon has
    some impact upon the nature, number, and type of complaints
    received by the Department of Justice. Further, Department
    attorneys must keep this in mind when evaluating complaints.
    The Department cannot be expected to prosecute complaints
    which are motivated by a desire on the part of the complainants
    to “use” the Government to raise defensive matters collaterally,
    even in those situations where the facts prima facie might support
    a Section 242 prosecution. Then, too, the Government
    should not be expected to litigate, at least in most instances,
    those complaints of criminal defendants which necessarily will
    be aired before the courts in the complainants’ own cases.
    Other ramifications of this point are too detailed for profitable
    discussion here, but the point remains that this tendency on the
    part of criminal case defendants, though not susceptible to statistical
    evaluation, is often a real problem in evaluating and
    acting upon complaints.
    112. See app. VII, table 3.
    113. Referring to brutality connected with the third degree, the Wickersham
    Commission wrote that there was “little evidence of the
    practice among Federal officials.” National Commission on Law
    Observance and Enforcement, op. cit. supra, note 43 at 4.
    114. Detroit Hearings 381.
    183
    NOTES: JUSTICE, Chapter 3
    1. Downie v. Powers, 193 F. 2d 760, 764 (1 oth Cir. 1951). The complaint
    in this case alleged that the Chief of Police of Duncan, Oklahoma
    had been present but had done nothing during a mob attack
    on a group of Jehovah’s Witnesses, id., at 762-63.
    2. See ch. 1 at 2, supra.
    3. See the order of Federal district Judge Frank M. Johnson, Jr., p. 32,
    infra; and the language from the Downie case at the beginning of
    this chapter, p. 29, supra.
    4. United States v. Lynch, 94 F. Supp. ion, 1015 (N.D. Ga. 1950),
    aff’d, 189 F. 2d 476 (5th Cir. 1951), cert, denied, 342 U.S. 831
    (1951); Catlette v. United States, 132 F. 2d 902 (4th Cir. 1943).
    5. United States v. Lynch, supra, note 4.
    6. This statement is based on a review of many cases of threatened
    mob violence where local policemen took prompt and vigorous
    action to control the mob. See, for example, the effective actions
    of the Atlanta Police Department, ch. 6 at 87, infra, and of that
    in Little Rock, ch. 6 at 87, infra, and Chicago, p. 40, infra.
    7. Telegram, May 23, 1961, from the U.S. Attorney General to Alabama
    Representatives and Senators, as published in The Washington
    Post, May 24, 1961, p. A-6.
    8. Howard K. Smith, Weekly News Analysis, CBS News, May 21,
    1961. Fields is a young chiropractor who writes anti-Semitic and
    anti-Negro literature and who “has now settled on Birmingham as
    headquarters” because, as he claimed to Smith, “ ‘It is a perfect
    place for my kind of work.’ ” Ibid.
    9. Ibid. In the Birmingham News, May 15, 1961, p. 1, it was stated
    that:
    . . . yesterday hoodlums took over a section of Birmingham.
    They clustered in small groups, they drove around in cars, they
    all but swaggered. They were not afraid, they were sure of
    themselves, they knew about the “freedom riders” and the
    buses they were supposed to come in on, and they had the
    place staked out—both the Greyhound bus terminal and, a
    bit more than two blocks away, the Trailways bus terminal.
    Others knew this situation existed, Commissioner Eugene
    Connor apparently knew it. He was on duty at City Hall.
    10. Ibid.
    11. Ibid.
    12. Id. at 8. The Department of Justice subsequently sought a Federal
    injunction against the Ku Klux Klan as well as Birmingham and
    Montgomery police officials to prevent them from interfering with
    travel in interstate commerce, United States v. U.S. Klans, note 18,
    184
    Notes: Justice, Chapter 3—Continued
    infra. While the Federal judge issued a preliminary injunction
    against the Klan and Montgomery police officials, he did not include
    the Birmingham officials. (Most witnesses at the hearing testified
    regarding the Montgomery incident.) The Birmingham officials,
    however, remain as defendants in the suit which has not yet been
    tried on the merits. Information from Department of Justice.
    13. Id. at 1.
    14. N.Y. Times, May 15, 1961, p. C-i; Washington Post, May
    21, 1961, p. A-7.
    15. Montgomery Advertiser, May 21, 1961, p. A-4.
    16. Ibid.
    17. Confidential statement from an eyewitness in Commission files.
    18. United States v. U.S. Klans, 194 F. Supp. 897, 900-901 (M.D. Ala.
    1961). Some of the exact details of the purposeful failure of the
    Montgomery police to provide protection are found in the following
    statement, from which the quotation in the text above is excerpted:
    This Court further finds that on May 20, 1961, it was a matter
    of public knowledge in Montgomery, Alabama, and was
    known to the Montgomery Police Department in Montgomery,
    Alabama, that a Greyhound bus carrying a group of
    white and Negro college students (which students had announced
    the purpose of riding through the State of Alabama,
    including Montgomery, on an interstate carrier, to determine
    whether they could use the instrumentalities of interstate commerce
    on such trip without racial segregation, or other illegal
    discrimination, and to demonstrate against any such discrimination
    should it occur) was en route from Birmingham to
    Montgomery. This Court finds that the Montgomery, Alabama
    Police Department was advised, through Spencer Robb,
    an agent of the Federal Bureau of Investigation of Montgomery,
    Alabama, that the bus carrying these passengers had
    left Birmingham at approximately 8:30 a.m.; and that this advice
    was given Acting Chief Marvin Stanley of the Montgomery
    Police Department by this agent of the Federal Bureau of
    Investigation at approximately 9:30 a.m. on the morning of
    May 20, 1961. The Court further finds that the Montgomery
    Police Department was aware of the fact that this bus had
    left Birmingham and was aware of the fact that certain difficulties
    had been encountered in Birmingham, Alabama, on
    May 14, 1961, when a similar group had arrived in Birmingham,
    Ala. This Court further finds that a Montgomery Police
    Department officer, Detective Shows, stated to a reporter
    for the Montgomery Advertiser on the morning of May 20 that
    185
    Notes: Justice, Chapter 3—Continued
    the Montgomery police “would not lift a finger to protect”
    this group. The evidence is abundantly clear and this Court
    specifically finds that Lester B. Sullivan, as Police Commissioner,
    was advised by Floyd Mann, Director of the Alabama
    Department of Public Safety, on the morning of May 20,
    1961, that the bus in which this group was riding was en route
    from Birmingham to Montgomery, Ala., and had reached a
    point 12 to 14 miles from the city limits of Montgomery, Ala.,
    at approximately 10:00 a.m. The likelihood of violence was
    known to the Department of Public Safety, and that Department,
    acting through its head, Floyd Mann, had taken the
    necessary precautions to protect this bus from Birmingham
    to the city limits of Montgomery, Ala., by assigning 16 highway
    patrol cars and one airplane to accompany this bus from
    city limits to city limits. Through various sources, Sullivan
    and the Montgomery Police Department, through Sullivan,
    were aware of the explosive situation that existed in this area
    with reference to these riders, and with that knowledge did not
    take any of the usual precautionary measures to keep down
    violence in the city of Montgomery upon the arrival of this bus.
    Police Commissioner Sullivan, with this information—according
    to Police Officers Swindle, Moody, Lofton, Smith, Parham,
    and others—had not even alerted the Montgomery City Police
    Department to ensure the safety of the group of students, to
    prevent unlawful acts of violence upon their persons, and to
    ensure the safe conduct of these groups of interstate travelers.
    This Court specifically finds that the Montgomery Police Department,
    under the direction of Sullivan and Ruppenthal
    (Acting Chief Stanley, upon behalf of Ruppenthal) willfully
    and deliberately failed to take measures to ensure the safety
    of the students and to prevent unlawful acts of violence upon
    their persons. This lack of protection on the part of the city
    police of Montgomery continued even after the arrival of the
    bus. From the testimony of witnesses and the radio log of the
    Police Department, no police car was dispatched to the area
    of violence until car No. 19 (with two officers) was sent at
    10:33 a-m- £ Blachly and Oatmen, “Approches to Governmental
    Liability in Tort: A Comparative Survey,” 9 Law and Contemporary
    Problems 181,213 (1942).
    I
    20. N.Y. Court of Claims Act, sec. 8:
    The state hereby waives its immunity from liability and action
    and hereby assumes liability and consents to have the same determined
    in accordance with the same rules of law as applied to
    actions in the supreme court against individuals or corporations,
    provided the claimant complies with the limitations of this
    article. . . .
    See generally, 38 Am. Jur. Municipal Corporations sec. 620 (1936)
    for the proposition that the doctrine of sovereign immunity is
    generally the rule throughout the States. However, Florida, p. 81,
    infra, and Illinois, p. 82, infra, have recently overturned the doctrine
    through court decision. New Jersey has breached the doctrine
    slightly by holding the municipality liable for torts of its policemen
    where it can be shown that the municipality indulged in “active
    negligence.” Kelley v. Curtiss, 102 A. 2d 471 (N.J. 1954). The
    elements of the doctrine of “active negligence” consist of a wrongful,
    affirmative act by a public employee plus notice to the proper
    city authorities and continued acquiesence to the acts by the city.
    21. Bernadine v. City of New York, 62 N.E. 2d 604 (N.Y. 1945),
    makes it clear that municipalities also may be sued.
    22. See New York cases cited in note 18, supra.
    23. Schuster v. City of New York, 180 N.Y.S. 2d 265 (1958).
    24. McCrink v. City of New York, 71 N.E. 2d 419 (N.Y. 1947).
    25. See New York cases in notes 17 and supra.
    26. Hargrove v. Town of Cocoa Beach, supra, note 11.
    27. Id. at 132. The earliest decision on municipal immunity is Russell
    v. Men of Devon, 2 Durn. and East 667, 100 Eng. Rep. 359
    (1788).
    28. Hargrove v. Town of Cocoa Beach, supra, note 11, at 132. The
    court held, however, that this repudiation of the doctrine did not
    apply to legislative and judicial officials.
    29. Molitor v. Kaneland Community Unit District No. 302, 163 N.E.
    2d 89 (Ill. 1959).
    235
    Notes: Justice, Chapter 6—Continued
    30. Peters v. Bellinger, 19 Ill. 2d 367 (1959), rev’d on other grounds,
    166 N.E. 2d 581 (Ill. i960).
    31. But see, Muskopf v. Corning Hospital Dist., 29 U.S.L. Week 2366
    (Jan. 27, 1961) (Cal.); Williams v. Detroit, 30 U.S.L. Week 2150
    (Sept. 22, 1961) (Mich.).
    32. Chicago Police Department General Order 16.
    33. Chicago Field Study, ch. 3, note 65, at 15-16, supra.
    34. Letter From John McKnight, Executive Director, Chicago Branch,
    American Civil Liberties Union to the Commission, July 28, i960.
    35. Chicago Field Study, ch. 3, note 65, at 6, supra. The following
    chart represents a Commission staff analysis of brutality complaints
    received by the Chicago branches of the ACLU and the NAACP
    over a 3-year period. Racial designations of victims were not
    available from the ACLU. All complaints received by the
    NAACP involve Negro victims.
    1958 1959 i960
    ACLU_________________________ 17 23 6
    NAACP________________________ 9 9 4
    Total______________________ 26 32 10
    The Chicago Police Department since April i960 has kept its
    records of police brutality complaints in its Division of Internal
    Inspection. From April i960 to Jan. 1, 1961, these records disclosed
    that 109 complaints of “police brutality” had been received.
    Many involved complaints stemming from disputes within officer’s
    families and allegations of misconduct by off-duty policemen as
    well as alleged brutality by police during the course of duty. In
    17 cases the division’s investigation had disclosed enough evidence
    of misconduct to result in some disciplinary action being taken.
    Id. at 15-16.
    In characterizing the improvement in the police brutality problem
    in Chicago, an editor of a Negro newspaper stated that prior to Wilson’s
    administration, the paper received several hundred complaints
    a year from Negro citizens alleging police brutality. Since Wilson
    took office, according to this source, the paper has received few if
    any complaints. He attributes this to Wilson’s vigorous leadership
    and the systematized complaint investigation system set up by him
    since taking office. Id., app. A.
    36. Detroit Hearings 305 (Testimony of Arthur L. Johnson, Executive
    Secretary, Detroit Branch, NAACP).
    37. Id. at 388 (Testimony of Willis Ward).
    38. (Philadelphia, Pa.) Sunday Bulletin, Oct. 27, 1957, p. 24.
    39. Ibid.
    236
    Notes: Justice, Chapter 6—Continued
    40. The description that follows in the text is based on information
    gathered in a 2-day field investigation, the results of which are incorporated
    in a Commission document entitled Report on Field
    Investigation in Philadelphia. The survey conducted in March
    1961 had two objectives. The first was to study the operation of
    the Philadelphia Police Advisory Board. The second was to obtain
    information on the research program being conducted by a
    team of psychologists aimed at establishing the requirements for
    effective police training in human relations. This latter program
    is a joint endeavor of the Philadelphia Police Department and the
    Philadelphia Commission on Human Relations. Persons interviewed
    included the police commissioner, the executive director of
    the commission on human relations, the executive director of the
    police advisory board, the psychologist in charge of the police
    human relations research project, and representatives of the Philadelphia
    branches of the ACLU and the NAACP.
    41- In 957 City Councilman Henry W. Sawyer III stated that the
    Philadelphia Police Trial Board did not always permit attorneys
    to appear with complainants. Sunday Bulletin, supra, note 38.
    *
    Criticism of lack of counsel and of cross-examination privileges
    has been made of the police hearing board in Cincinnati. Testimony
    of Cincinnatians for a Police Advisory Board (before the public
    welfare committee), The Case for a Police Advisory Board 5
    (i960) (mimeo).
    42. Report on Field Investigation in Philadelphia, supra, note 40, at 27—
    28. In two cases the police commissioner did not wish to follow the
    recommendation of the board as to punishment, and the matters
    were adjusted in discussions between the board and the commissioner.
    The board has never recommended dismissal from the
    force, the most severe penalty recommended being a 2 weeks’ suspension.
    Letter From Martin S. Barol, executive director, Philadelphia
    Police Advisory Board, to the Commission on Apr. 25, 1961.
    The total number of complaints received by the board from Oct. 1,
    J95^, until Aug. 31, i960 was 107. (By Mar. 7, 1961, when a
    field investigation was conducted in Philadelphia, the total had
    reached 152.) The Second Annual Report of the Police Advisory
    Board of the City of Philadelphia, Appendix “A” (i960). Of
    the total of 107 complaints, there were 46 which alleged brutality;
    28, harassment; and 33, illegal arrest or search and seizure. Hearings
    were held in 22 cases, with 12 decisions for the complainant
    and 10 for the policemen. Three of the 10 hearing cases decided
    for the policemen were won virtually by default since the complainants
    failed to appear. Report on Field Investigation in Philadelphia,
    supra, note 40, at *20-21
    237
    Notes: Justice, Chapter 6—Continued
    43. Id. at 20.
    44. Id. at 29.
    45. Id. at 30-33. The board has had the additional effect of increasing
    public confidence that citizens’ complaints are impartially
    handled; it has also apparently increased public confidence in the
    police department itself. Among the board’s strong supporters
    today are officials and groups who are not always on the same side
    of civil rights issues: the mayor, the police commissioner, and the
    Philadelphia branches of the American Civil Liberties Union and
    of the National Association for the Advancement of Colored People.
    Id. at 19,29-33.
    46. For example, see Testimony of Arthur L. Johnson, Detroit Hearings
    305; Statement of Judge Victor J. Baum, id. at 429; and Statement
    of American Civil Liberties Union, id. at 485. At this hearing
    Police Commissioner Herbert W. Hart of Detroit outlined his
    objections to an advisory board. Id. at 423-24. Police Commissioner
    Albert Brown of Philadelphia indicated his disagreement
    with most of these objections in a March 1961 interview. Report
    on Field Investigation in Philadelphia, supra, note 40, at 31.
    47. See ch. 2 at 6, 9, supra.
    48. See ch. 2 at 18-25, supra.
    49. See ch. 2 at 24, supra.
    50. Fernelius v. Pierce, 138 P. 2d 12 (Cal. 1943). The court upheld
    a complaint alleging that the city manager and the chief of police
    were liable for a death which resulted from an assault by jail guards
    who were known by the defendants to have previously beaten many
    prisoners.
    51. McCrink v. City of New York, supra, note 24. Patrolman Anderson
    of the New York City Police Department shot two people, killing
    one and permanently injuring the other. He was off-duty and
    drunk at the time. In 1928 and in 1936 the officer had been found
    guilty of drunkenness. And in 1937 he was found guilty of intoxication
    while on duty. Despite this record, he was not discharged.
    The court said that the city “may not with impunity retain in service
    an employee from whose retention danger to others may reasonably
    be anticipated.” Id. at 422. The New York statute waiving
    State immunity to suit in such cases is discussed on p. 81, supra.
    52. Bobo v. City of Kenton, 212 S.W. 2d 363 (Tenn. 1948). This
    case involved a shooting by a police chief who allegedly was known
    to be insane and dangerous. But the city was held not liable under
    the doctrine of sovereign immunity.
    238
    Notes: Justice, Chapter 6—Continued
    53. Peters v. Bellinger, 159 N.E. 2d 528, 529 (Ill. 1959). The court
    stated, “No one checked into the record of the policeman before he
    was hired.” Ibid.
    54- V and er slice v. Shoemake, supra, note 17; Anderson v. Vander slice,
    supra, note 18.
    55. A few police departments in the United States require that recruits
    pass a psychological test. The Los Angeles Police Department is
    one of these. California Hearings 334.
    56. Flanagan, “Psychological Requirements of the Airline Pilot,” 18
    Journal of Aviation Medicine 521-27 (1947). Elbert, Glaser, and
    Hanes, “Research on Problems of Selection of Personnel for Duty
    at Isolated Stations,” American Institute for Research (1957).
    57. Address by Inspector Robert R. J. Gallati, Annual Conference, International
    Association of Chiefs of Police, October 1958. Recent
    textbooks in the field of police administration call for psychological
    testing and psychiatric examination as part of the regular procedure
    in sifting candidates for police departments. German, Police Personnel
    Management 46-48 (1958); Wilson, Police Planning 236
    (2d ed. 1957) • But as pointed out by one authority, progress in devising
    such tests has been slow. “We are in dire need of constructive
    valid tests of emotional stability for police officers.” Mirich, “The
    Qualified Policeman,” 50 J. Crim. L., C. and P.S. 315, 316 (1959).
    58. This program is being financed primarily by two private foundations—
    the Russell Sage Foundation and the Rockefeller Brothers
    Fund. A team of social scientists from the American Institute for
    Research is conducting the study. See the research proposal submitted
    by the American Institute for Research entitled A Comprehensive
    Study of Problems Encountered by Members of a Metropolitan
    Police Department and the Implications of the Findings
    for Selection and Training Programs (1959) (mimeo).
    59. J. Edgar Hoover recently stated:
    Inadequate budgets have become a perennial problem with far too
    many law enforcement agencies.
    * * *
    This is not just a problem of big cities or small towns. It exists
    in communities of all sizes—in every part of the nation. One
    large Southern community pays its patrolmen a starting salary of
    $279 a month, and the minimum work week is 48 hours. In
    this same city, 18-year-old stenographers can find government
    positions offering $337 a month salary for a 40-hour week!
    In a medium-sized Western city, the situation is even more
    ludicrous. Here the starting salary of patrolmen is $175 per
    239
    Notes: Justice, Chapter 6—Continued
    month. The Chief of Police of this “enlightened” community
    earns $400 a month and, again, a minimum 48-hour workweek
    is required.
    When conditions such as these persist, it is no wonder that
    many police departments have trouble recruiting qualified personnel
    and retaining competent officers.
    Address by FBI Director J. Edgar Hoover, International Association
    of Chiefs of Police, October 3, i960. Regarding the selection and
    training of FBI personnel Mr. Hoover, in response to an inquiry from
    this Commission, said {Statement of the Views of the Federal Bureau
    of Investigation on Civil Rights Investigations, ch. 4, note 131,
    infra, at 1-2):
    In regard to your inquiry as to the lack of complaints of brutality
    on the part of Special Agent personnel, such may be attributed
    to the following factors: Selection of personnel; Training; Discipline;
    and the Nature of the functions of this Bureau.
    With respect to personnel, Special Agents must be college graduates
    and the majority have had postgraduate training in courses
    such as law or accounting. All are thoroughly investigated before
    being offered an appointment.
    All Agents before being assigned to investigative work in the
    field receive a thirteen-week period of training which includes
    extensive instruction in such pertinent matters as constitutional
    law, law of arrests, searches and seizures, confessions and evidence.
    As to discipline, Agents of this Bureau clearly understand that
    duress or brutality of any type is absolutely forbidden. The use
    of such tactics or any other improper conduct toward subjects of
    investigation by an FBI Agent is grounds for severe disciplinary
    action including dismissal. This rule is vigorously enforced and
    any complaint of misconduct against an Agent is immediately
    and thoroughly investigated.
    Another factor to be considered is the functions of the FBI
    compared to those of state and local law enforcement officers.
    This Bureau is primarily an investigative agency, whose arrests
    in most instances are made after investigation and upon warrant.
    The uniformed police officer, on the other hand, is principally
    concerned with patrol duty, maintenance of order and the protection
    of life and property rather than investigation. He is,
    therefore, necessarily exposed to many more situations where
    complaints may arise.
    240
    Notes: Justice, Chapter 6—Continued
    Mr. Hoover’s statement continued:
    This Bureau also engages in educational activities which have
    a direct bearing on the problems of police misconduct at the state
    or local level. The FBI National Academy provides special
    training for police officers, tuition free, twice a year for a period
    of twelve weeks. This course, like that given to FBI Agents,
    includes instruction in constitutional law, law of arrests, searches
    and seizures, and the rules of evidence, as well as other matters.
    This Bureau also conducts or assists in conducting police training
    schools throughout the country. During the past fiscal year
    there were 3,464 such schools attended by 88,111 law enforcement
    officers. Training of policemen appears to have a direct
    bearing on their conduct as officers of the law.
    Also, see the remarks on the subject of pay by the Chief of Police of
    Los Angeles, Calif., Parker, The Police Role in Community Relations
    11-13 (1955).
    60. See ch. 2, note 73, supra.
    61. By 1955 awareness of the need to squarely face these problems was
    so strong that a national meeting—the first Police Community Relations
    Institute—was held at Michigan State University. Since
    that time numerous such meetings, in cooperation with the National
    Conference of Christians and Jews, have been held throughout
    the country. According to Prof. A. F. Brandstatter, director
    of the School of Police Administration at Michigan State University,
    the purpose of these institutes is to develop “a keener awareness
    on the part of the police leadership of our country for the
    need to have a greater understanding of the underlying causes of
    tension occurring in a community, thus hoping police administrators
    will take action to prevent the eruption of violence.” Letter
    From A. F. Brandstatter to the Commission, July 1, i960.
    62. New York Herald Tribune, July 10, i960, p. 1. Regarding the
    Philadelphia research program in human relations, see note 40,
    supra, and Siegal and Baker, Applied Psychological Services, Police
    Human Relations Training (i960).
    63. As quoted by Assistant Chief Charles Batchelor, Dallas Police Department,
    at a panel discussion on “The Police and Minority
    Groups,” National Police-Community Relations Institute (Proceedings)
    i960. Police Commissioner Albert Brown of Philadelphia
    stated that the new human relations training course will convince
    many recruits to have the proper attitude on civil rights matters;
    the “hard core” man who won’t be convinced will be told that he
    must act as if he was for eight hours a day. Interview with Police
    Commissioner Albert Brown in Philadelphia, March 1961.
    241
    Notes: Justice, Chapter 6—Continued
    64. See ch. 3, supra.
    65. See the “segregation or subordinate status” category of police brutality
    in ch. 2 at 6-12, supra.
    66. See ch. 3 at 29, supra.
    67. See p. 82, supra.
    68. Norfolk (Va.) Journal & Guide, Jan. 14, 1961, p. 20.
    69. Investigation of Administration of Justice in Atlanta, Georgia 18.
    This study was made by a Commission investigator between Apr. 14
    and Apr. 21, 1961. During this period a total of 26 persons were
    interviewed. Among those interviewed was Mayor William B.
    Hartsfield; Chief of Police Herbert T. Jenkins; Mr. Ralph McGill,
    editor of the Atlanta Constitution & Journal; representatives of
    local and Federal law enforcement organizations, officials of the
    local and Federal courts; and leading members of the white and
    Negro community.
    70. Id. at 17-21.
    71. See Time, Aug. 25, 1961, p. 40; N.Y. Times, Aug. 31, 1961, pp. 1
    and 15; Atlanta Constitution, Sept. 2, 1961, pp. 1 and 4.
    72. N.Y. Times, Aug. 31, 1961, p. 10.
    73. Cooper v. Aaron, 358 U.S. 1 (1958).
    74. McMillan, Racial Violence and Law Enforcement 28-29 (i960).
    A graphic discussion on the Little Rock situation and the impact
    of leadership on violence is found in the testimony of J. Gaston
    Williamson and Virgil Blossom, Gatlinburg Transcript 75-99.
    75. The Washington Post, Sept. 11, 1961, p. 6A.
    242
    NOTES: JUSTICE, Chapter 7
    1. Strauder v. West Virginia, 100 U.S. 303, 307-308 (1880); Ex
    parte Virginia, 100 U.S. 339, 344-45 (1880); Virginia v. Rives,
    100 U.S. 313, 318 (1880); Slaughter House Cases, 83 U.S. (16
    Wall.) 36, 70-72 (1873).
    2. Some enforce the law—the police, prison administrators, parole
    and probation officers. Others dispense justice under the law—
    judges, with widely varying jurisdictions, and grand and petit
    juries. Still others assist in the dispensation of justice—the numerous
    subordinate officials of the courts, the prosecutors, and the nonofficial
    members of the bar. Each of these agencies, composed of
    a variety of groups performing countless specialized tasks, operates
    at the city, county, State, and Federal levels.
    3. Civil Rights Act of 1875, ch. 114, sec. 4, 18 Stat. 336, 18 U.S.C.
    sec. 243 (1958).
    4. Prior to 1961 there were at least 18 decisions of the Supreme Court
    upsetting convictions of State courts because of exclusion of jurors
    by reason of race. Eubanks v. Louisiana, 356 U.S. 584 (1958);
    Reece v. Georgia, 350 U.S. 85 (1955); Hernandez v. Texas, 347
    u-s- 475 (1954); ^ery v. Georgia, 345 U.S. 559 (1953);
    Shephard v. Florida, 341 U.S. 50 (1951); Cassell v. Texas, 339
    U.S. 282 (1950); Brunson v. North Carolina, 333 U.S. 851
    (1948) (five cases); Patton v. Mississippi, 332 U.S. 463 (1947);
    Hilly. Texas, 316 U.S. 400 (1942); Smith v. Texas, 311 U.S. 128
    (1940); Pierre v. Louisiana, 306 U.S. 354 (1939); Hale v. Kentucky,
    303 U.S. 613 (1938); Hollins v. Oklahoma, 295 U.S. 394
    (T935); Norris v. Alabama, 294 U.S. 587 (1935); Carter v.
    Texas, 177 U.S. 442 (1900); Bush v. Kentucky, 107 U.S. no
    (1882); Neal v. Delaware, 103 U.S. 370 (1881); Strauder v.
    West Virginia, supra, note 1. The defendants in all but one of
    these cases were Negroes. The Hernandez case involved a defendant
    of Mexican descent.
    5. Ibid.
    6. Strauder v. West Virginia, supra, note 1, at 308-309; Brown v.
    Rutter, 139 F. Supp. 679 (W.D. Ky. 1956).
    7. Anderson v. Alabama, 366 U.S. 208 (1961).
    8. United States ex rel. Goldsby v. Harpole, 263 F. 2d 71, 78—79
    (5th Cir. 1959), cert, denied, 361 U.S. 838, rehearing denied, 361
    U.S. 850 (1959).
    9. Anderson v. Alabama, supra, note 7.
    10. Anderson v. State, 120 So. 2d 397, 399 (Ala. 1959) •
    11. Ibid.
    12. Ibid.
    243
    Notes: Justice, Chapter 7—Continued
    13. Staff investigator’s notes on interviews in Selma, Alabama, May
    19, i960.
    14. Anderson v. State, supra, note 10 at 398-99.
    15. Id. at 402.
    16. Id. at 406.
    17. Id. at 404.
    18. Id. at 405.
    19. Ibid.
    20. Id. at 407.
    21. Id. at 412.
    22. Id. at 406.
    23. Id. at 413. The Court pointed to the fact that the trial judge
    might have found it significant that Rev. Anderson had failed to
    produce the jury rolls of Dallas County, which would have been
    the best evidence on the issue. The Court also stated as its “reasons”
    for affirmance, the fact that the trial judge was entitled to
    consider his own personal knowledge of the jury roll, of the number
    of Negroes appearing on the venire, and of the number of
    Negroes appearing before him in criminal cases. As further considerations
    that possibly influenced the trial judge’s decision, the
    Court cited the undisputed testimony of the law enforcement officers
    about the higher crime rate among Negroes, and the failure
    of the defendant to show that Negroes called were coerced into
    seeking to be excused (ibid.).
    24. Anderson v. State, 120 So. 2d414 (Ala. i960).
    25. Anderson v. Alabama, supra, note 7. The Court simply declared,
    “The judgment is reversed,” and cited Pierre v. Louisiana,
    Cassell v. Texas, and Hernandez v. Texas, supra, note 4.
    26. Montoya v. People, 345 P. 2d 1062 at 1063 (Colo. 1959).
    27. Ibid.
    28. Ibid.
    29. Ibid.
    30. Ibid. The Colorado Court indicated that reversal was required
    by the presence of the same three elements that required reversal
    in Norris v. Alabama, 294 U.S. 587 (1935), viz. (1) the
    existence of a class constituting a substantial segment of the county,
    (2) members of that class who were qualified to serve as jurors,
    and (3) token representation or none of the class on the jury lists
    over an extended period of time.
    31. People v. Salvatore, No. 118, N.Y. Ct. App., July 7, 1961. The
    Court ruled that there was no showing of discrimination and noted
    that “special efforts” had been made to obtain Puerto Ricans as
    jurors.
    244
    Notes: Justice, Chapter 7—Continued
    32. Telephone conversation with Shad Polier, Esq., Sept. 19, 1961.
    Mr. Polier is counsel for defendant Agron. See N.Y. Times, July
    21, 1961, p- 6.
    33. United States ex rel. Goldsby v. Harpole, supra, note 8 at 73, 75.
    34. Id. at 74, 75.
    35. See id. at 74-76.
    36. Id. at 79.
    37. Id. at 78.
    38. Ibid.
    39. Ibid. [Emphasis added.]
    40. Miss. Code Ann. sec. 1762 (1942).
    41. United States ex rel. Goldsby v. Harpole, supra, note 8 at 78.
    42. Bailey v. Henslee, 287 F. 2d 936 (8th Cir. 1961).
    43. United States ex rel. Goldsby v. Harpole, supra, note 8, at 82.
    44. Ibid.
    45. Ibid.
    46. See discussion in pt. Ill, at 179, supra.
    47. The Negro and the Instrumentalities of Justice in Birmingham,
    Alabama (a Commission Staff Report) 58-60. This report incorporates
    the results of a field investigation of the Birmingham
    area on March 7-19, 1961. Seven white and seven Negro professional
    men, active in the Birmingham area, were interviewed;
    two Negro and seven white professional men familiar with the
    administration of justice in Birmingham, but residing outside
    Jefferson County, were also interviewed.
    48. U.S. Bureau of the Census, U.S. Census of Population: ig6o,
    Advance Reports: General Population Characteristics PC (2B)-
    23 (Ala.) (1961).
    49. In The Negro and the Instrumentalities of Justice in Birmingham,
    Alabama, supra, note 47, at 58-59, it is stated that—
    It was the unanimous view of white and Negro attorneys interviewed
    in Birmingham that, although some Negroes may be summoned
    for jury service and although as many as three Negroes
    have been known to appear on a 24-man panel, colored jurors are
    seldom actually sworn in as members of the 12-man jury. All
    further agreed that this fact could be attributed to a common
    agreement among local attorneys that Negroes will be stricken
    from the 24-man panel. Such agreements are easily carried out
    because each side first exhausts its challenges for cause, and then
    still has six peremptory challenges (for which no reason is
    stated). . . . One of these lawyers declared that the bailiff notes
    which members of the panel are Negroes and transmits this in-
    599614—61----17 245
    Notes: Justice, Chapter 7—Continued
    formation to counsel. A Negro attorney stated that he is always
    apt to lose a jury case “unless it is very clear-cut.”
    50. Id. at 59. This complaint was made during an interview with a
    staff attorney in Birmingham on March 16, 1961.
    51. N.Y. Times, Aug. 23, 1961, p. 31. The article reported that
    “the list of prospective jurors for the trial includes 51 whites and
    2 Negroes. Mr. Kunstler [counsel for appellant], who is white,
    noted that Hinds County had 31,548 white and 16,139 Negro
    males of voting age. Only male voters are eligible for jury duty
    in Mississippi.” The article also reported that 3 Negro witnesses,
    registered for 30, 36 and 14 years respectively, “testified they had
    never been called for jury duty.”
    52. Ibid.
    53. Ibid.
    54. Desegregation of the Instrumentalities of Justice in the Baltimore
    Metropolitan Area (a Commission Staff Report) 25-27. The report
    contains the findings of a staff investigation in the Baltimore
    area from Dec. 20, i960, through Feb. 21, 1961.
    55. Cassell v. Texas, supra, note 4, at 286-87.
    56. Desegregation of the Instrumentalities of Justice in the Baltimore
    Metropolitan Area, supra, note 54, at 27 (based on an interview
    with Jury Commissioner, Supreme Bench of Baltimore City)
    on Jan. 11, 1961.
    57. Cassell v. Texas, supra, note 4.
    58. Desegregation of the Instrumentalities of Justice in the Baltimore
    Metropolitan Area, supra, note 54, at 25 (based on an interview
    with Clerk of Court, United States District Court for the District
    of Maryland, Baltimore, Jan. 11, 1961).
    59. U.S. Bureau of the Census, U.S. Census of Population: ig6o, Advance
    Reports: General Population Characteristics PC (22B)-
    19 (Md.) (!961)-
    60. Desegregation of the Instrumentalities of Justice in the Baltimore
    Metropolitan Area, supra, note 54, at 26 (based on interviews with
    two judges on the Supreme Bench of Baltimore City, Jan. 11 and
    12, 1961).
    61. Ibid, (based on interviews in Baltimore, Jan. 19 and Feb. 21,
    1961).
    62. Ibid, (based on interview with the Jury Commissioner, Supreme
    Bench of Baltimore City, Jan. 11, 1961).
    63. 62 Stat. 951 (1957), 28 U.S.C. sec. 1861 (1958).
    64. 103 Cong. Rec. 13154 (1957).
    65. See discussion at p. 92 and note 40, supra.
    66. See, e.g., 30 Ala. Code tit. 30, sec. 21 (Supp. 1958).
    246
    Notes: Justice, Chapter 7—Continued
    67. The Judicial Conference of the United States, The Jury System
    in the Federal Courts 20 (i960).
    68. Id. at 19-20.
    69. Cassell v. Texas, supra, note 4.
    70. Avery v. Georgia, supra, note 4.
    71. Patton v. Mississippi, supra, note 4.
    72. Civil Rights Act of 1875, ch. 114, sec. 4, 18 Stat. 336, 18 U.S.C.
    sec. 243 (1958).
    73. 100 U.S. 303 (1880).
    74. 100U.S. 339 (1880).
    75. 103 U.S. 370 (1881).
    76. Id. at 387. Federal law provides for the removal of suits from
    State to Federal courts when a party “is denied or cannot enforce
    in the courts of such State” his rights under the civil rights statutes
    (Rev. Stat. sec. 641 (1875), 28 U.S.C. sec. 1443 (1958)). The
    Court held that there was no proof that the plaintiff could not enforce
    those rights in the courts of Delaware (103 U.S. at 393).
    77. 162 U.S. 565 (1896).
    78. Carter v. Texas, 177 U.S. 442 (1900).
    79. 294 U.S. 587 (1935).
    80. Id. at 590-92. See Hernandez v. Texas, 347 U.S. 475, 480
    (I954)-
    81. Cassell v. Texas, 339 U.S. 282, 289 (1950); Hill v. Texas, 316
    U.S. 400, 404 (1942); Smith v. Texas, 311 U.S. 128, 131-32
    (1940).
    82. Akins v. Texas, 325 U.S. 398, 403 (1945); see Fay v. New York,
    332 U.S. 261, 291 (1947).
    83. Cassell v. Texas, supra, note 81, at 287.
    84. Akins v. Texas, supra, note 82, at 403.
    85. Hernandez v. Texas, supra, note 80, at 477.
    86. Ibid.
    87. See also Thiel v. Southern Pae. Co., 328 U.S. 217 (1946).
    88. See statute set forth at p. 95, supra.
    89. Jordan v. Massachusetts, 225 U.S. 167, 176 (1912) (dictum);
    Maxwell v. Dow, 176 U.S. 581, 602 (1900); Hurtado v. California,
    110 U.S. 516, 538 (1884).
    90. Fay v. New York, supra, note 82, at 288 (dictum); Snyder v.
    Massachusetts, 291 U.S. 97, 105 (1934) (dictum); Jordan v.
    Massachusetts, supra, note 89, at 176 (dictum); Maxwell v. Dow,
    supra, note 89, at 603 (dictum); Missouri v. Lewis, 101 U.S. 22,
    31 (1880) (dictum).
    91. Akins v. Texas, supra, note 82, at 400, and cases cited therein.
    92. Ibid.; cf. Watson v. Maryland, 218 U.S. 173, 179 (1910).
    247
    Notes: Justice, Chapter 7—Continued
    93. Cf. Watson v. Maryland, supra, note 92; Gibson v. Mississippi,
    supra, note 77, at 589.
    94. Fay v. New York, supra, note 82, at 270; Gibson v. Mississippi,
    supra, note 77, at 589.
    95. Ibid.
    96. Fay v. New York, supra, note 82, at 293 (dictum).
    97. Ex parte Virginia, 100 U.S. 339, 345 (1880).
    98. Cassell v. Texas, supra, note 81, at 286-87; Akins v. Texas, supra,
    note 82, at 404; Neal v. Delaware, supra, note 75, at 394. And
    see discussion at p. 96, supra.
    99. People v. Dukes, 169 N.E. 2d 84 (Ill. i960); People v. Harris,
    161 N.E. 2d 809 (Ill. 1949); People v. Roxborough, 12 N.W.
    2d 466, 473 (Mich. 1943), cert, denied, 323 U.S. 749 (1944).
    100. See Strauder v. West Virginia, supra, note 73, at 305-306. See
    also Fay v. New York, supra, note 82, at 282-84.
    101. Ibid.
    102. See discussion at p. 99, infra.
    103. See Commonwealth v. Wright, 79 Ky. 22 (1880). (White person
    objected unsuccessfully to exclusion of Negroes from grand
    jury that indicted him.) See also dictum in Fay v. New York,
    supra, note 82, at 287, and cases cited therein.
    104. United States ex rel. Jackson v. Brady, 133 F. 2d 476, 480 (4th Cir.
    1943), cert, denied, 319 U.S. 746 (1943).
    105. Hill v. Texas, supra, note 81, at 404; Norris v. Alabama, supra,
    note 79, at 598; United States ex rel. Goldsby v. H ar pole, supra,
    note 8, at 78.
    106. But see United States ex rel. Goldsby v. Harpole, supra, note 8,
    at 79-84.
    107. Patton v. Mississippi, supra, note 71, at 465—66; Hill v. Texas,
    supra, note 81, at 404; Norris v. Alabama, supra, note 79, at 590-
    91; United States ex rel. Goldsby v. Harpole, supra, note 8, at
    78-79-
    108. Brown v. Rutter, 139 F. Supp. 679, 681 (W.D. Ky. 1956).
    109. Brown v. Allen, 344 U.S. 443, 481-82 (1953).
    110. Id. at 482-87, 552.
    in. Id. at 548-60, dissenting opinions of Justice Black (with whom
    Justice Douglas joined) and of Justice Frankfurter (with whom
    Justice Black and Justice Douglas joined).
    112. United States ex rel. Jackson v. Brady, supra, note 104, at 477-78,
    affirming, F. Supp. 362 (D. Md. 1942).
    113. Akins v. Texas, supra, note 82, at 403.
    114. United States ex rel. Jackson v. Brady, supra, note 104, at 478;
    United States v. Fujimoto, 105 F. Supp. 727, 732 (D. Hawaii
    248
    Notes: Justice, Chapter 7—Continued
    1952), writ of prohibition or mandamus denied, 344 U.S. 852
    (i952)-
    115. United States ex rel. Jackson v. Brady, supra, note 104, at 478.
    116. Brown v. Allen, supra, note 109, at 474.
    117. Strauder v. West Virginia, supra, note 73, at 310.
    118. United States ex rel. Goldsby v. Harpole, supra, note 8, at 7I—73
    (by implication).
    119. Fla. Stat. Ann. sec. 40.01 (1951).
    120. See note 40, supra.
    121. S.C. Code Ann. sec. 38-52 (1952).
    122. United States ex rel. Goldsby v. Harpole, supra, note 8.
    123. See pt. HI, ch. 4, at 179, supra.
    124. See discussion at p. 93, supra.
    125. See note 49, supra.
    126. The Negro and the Instrumentalities of Justice in Birmingham,
    Alabama, supra, note 47, at 60.
    127. Ibid. Statements made by two white lawyers practicing in the
    Birmingham courts.
    128. See discussion at p. 97 and note 99, supra.
    129. The question of judges encouraging and assisting counsel in their
    challenges to exclude racial minorities from jury service appears
    never to have arisen in reported cases. A judge however, is “an
    officer” subject to section 243 and is thereby forbidden to exclude
    jurors because of race or color. Moreover, the judge acts
    in the name of the State while presiding over the challenging
    of prospective jurors, and thus, insofar as his cooperation with
    counsel in their exercise of challenges constitutes deliberate racial
    discrimination on his part, it is State action violative of the equal
    protection clause of the 14th amendment.
    130. See Fay v. New York, supra, note 82, at 287-88; Glasser v. United
    States, 315 U.S. 60, 84-85 (1942).
    131. See, e.g., 28 U.S.C. secs. 1861 and 1863 (1958). Section 243
    of the United States Criminal Code applies to selection of both
    State and Federal jurors.
    132. Fay v. New York, supra, note 82, at 287. See, id. at 294.
    133. The selection of jurors by State officials, whether for criminal or
    civil proceedings, is clearly State action subject to the restrictions
    of the 14th amendment. Moreover, no reasonable distinctions
    can be drawn between criminal and civil cases that would justify
    racial considerations in the selection of jurors for the latter. It
    follows that the equal protection clause forbids racial, religious, or
    other unreasonable discrimination in the selection of jurors as much
    for civil cases as for criminal cases—and for the same reasons.
    249
    Notes: Justice, Chapter 7—Continued
    134. Diligent search failed to uncover a single reported Federal court
    decision involving racial exclusion of jurors from civil trials in
    State courts. There are some cases dealing with the question of
    jury exclusion in Federal civil proceedings. See, e.g., Thiel v.
    Southern Pac Co., supra, note 87, at 220; Dow v. Carnegie-Illinois
    Steel Corp., 224 F. 2d 414,423 (3d Cir. 1955).
    135. United States ex rel. Goldsby v. Harpole, supra, note 8, at 79_^°-
    136. The first remedy is discussed below in the context of criminal trials.
    There are no Supreme Court decisions arising from a direct attack
    on the discriminatory selection of a civil jury in a State court; only
    a few Federal appellate decisions have arisen from such objections
    to a civil jury in a Federal district court. See note 134, supra.
    Nevertheless, considerations relevant to an attack on a criminal
    trial jury would apply to objections based on racial discrimination
    in the jury’s selection prior to a civil trial.
    The other two remedies treated below are statutory and allow
    of no distinction between racial exclusion from criminal and from
    civil juries. The first of these Federal statutes protects, inter alia,
    rights under the equal protection clause, which forbids racial
    exclusion from criminal and civil juries alike. See note 133, supra.
    The second statute, which makes it a crime to practice racial exclusion
    from any grand or petit jury creates no exception for exclusion
    of jurors in civil cases.
    137. See discussion at p. 92, supra.
    138. Ibid.
    139. See ch. 2 at 41, supra.
    140. See United States ex rel. Goldsby v. Harpole, supra, note 8.
    141. See discussion at p. 98, supra.
    142. Section 1983 was examined in great detail in ch. 5, at 71, supra.
    143. See ch. 5, at 72, supra.
    144. Brown v. Rutter, supra, note 108.
    145. Id. at 681.
    146. Id. at 681-82.
    147. Id. at 683.
    148. Id. at 682.
    149. Id. at 683.
    I5°- 339 U.S. 282 (1950).
    151. Id. at 303-304 (dissenting opinion).
    152. See discussion at p. 98, supra.
    153. It should be noted that section 242, previously discussed in ch. 4,
    at 45, supra, would probably be applicable as well. See Carr,
    Federal Protection of Civil Rights, 91 n. 12 (1947). However,
    there seems to be no advantage in proceeding under section 242
    250
    Notes: Justice, Chapter 7—Continued
    rather than the specific remedy provided by section 243—especially
    since the latter has never been construed to require “specific intent.”
    154. The second and final Division-Commission conference was held
    on Dec. 16, i960. The conference is described in detail in ch. 4,
    at note 102, supra. The Division’s explanation, referred to in
    text, for the lack of 243 prosecutions is set forth in a Commission
    staff document summarizing the conference discussions. Department
    of Justice Conference, Notes, supra, ch. 4, note 102, at 39.
    155. On at least three occasions the Criminal Division of the Department
    of Justice requested United States Attorneys to report any
    local cases of jury exclusion violative of section 243 that came to
    their attention. These notices were featured on the front page of
    Department bulletins, which are periodically sent to the United
    States Attorneys. In 1950, a Department request read as follows
    (Bulletin) Criminal Division, vol. 9, No. 14, pp. 1-2 (July 17,
    1950)):
    Notice to United States Attorneys
    Request that cases involving intentional exclusion from grand
    or petit juries of Negroes or other citizens, on account of their
    race or color, be reported. The Supreme Court, in Cassell v.
    Texas, 339 U.S. 282 (1950), recently reaffirmed the rule that a
    Negro is denied the equal protection of the laws, in violation of
    the Fourteenth Amendment, when he is indicted by a grand jury
    from which Negroes as a race have been intentionally excluded.
    “An accused is entitled to have charges against him considered
    by a jury in the selection of which there has been neither inclusion
    nor exclusion because of race” (at p. 287). Unlawful discrimination
    can be established by proving systematic and purposeful
    exclusion continuing over a long period; or by a showing
    that the jury commissioners disregarded Negroes and thereby
    intentionally excluded them, choosing only from citizens they
    personally knew; or by other proof depending upon the nature
    of the case.
    Where Negroes have been intentionally excluded from a grand
    jury, the officials responsible therefor may have wilfully violated
    18 U.S.G. 242. In addition, a violation of 18 U.S.G. 243 may
    have been committed, since the Negroes who suffered the intentional
    exclusion from the jury were deprived of rights enforced
    by that Section.
    The above applies with equal force, of course, to discrimination
    in the choice of petit jurors. See Mr. Justice Jackson’s dissenting
    opinion at page 301 and cases there cited.
    251
    Notes: Justice, Chapter 7—Continued
    As Mr. Justice Jackson notes, Congress, by 18 U.S.C. 243, has
    provided direct and effective means to enforce the right of Negroes
    and other citizens to participate in grand jury service. See
    Ex parte Virginia, 100 U.S. 339. In addition, it is quite clear
    that 18 U.S.C. 242 would be applicable to such cases. The
    Criminal Division, however, has received very few complaints
    involving these principles. From time to time we have noted in
    the reported State and Federal cases claims made by defendants
    that the jury which tried or indicted them had been illegally
    constituted because of systematic exclusion of Negroes
    therefrom, but by the time the case is reported years may have
    passed since the alleged violation of Federal law was committed.
    It is requested that each United States Attorney consider the
    above and report to the Criminal Division any relevant cases
    which come to his attention at any time. The Division will be
    pleased to have recommendations and suggestions as to any
    specific case or as to the general problem.
    A second notice in 1953, after referring to the Supreme Court’s
    recent decision in Avery v. Georgia, supra, note 70, stated (Bulletin,
    Criminal Division, vol. 12, No. 9, p. 1 (June 8, 1953)):
    Despite the prior notice given United States Attorneys in the
    July 17, 1950 issue of the Criminal Division Bulletin (Vol. 9, No.
    14, p. 1) and despite the apparent continuing practice of racial
    discrimination in selecting juries, evidenced by the crude method
    of exclusion in the Avery case, no case of this type of alleged violation
    has been reported to the Criminal Division by United
    States Attorneys since the Bulletin's request for such information.
    It is requested again that United States Attorneys promptly
    inform the Criminal Division of any allegations of such racial
    discrimination in the selection of juries which may be brought
    to their attention, in order that the Department may be saved
    the embarrassment of first learning of such practices when a
    case reaches the Supreme Court.
    In 1956, a similar notice commenting on another recent decision,
    Reece v. Georgia, supra, note 4, concluded as follows (United
    States Attorneys Bulletin, vol. 4, No. 1, p. 4 (Jan. 6, 1956)):
    Through the medium of the Bulletin, United States Attorneys
    have twice been requested to inform the Criminal Division of all
    allegations or reports of such racial discrimination, in order that
    the law may be properly enforced and the Department may be
    saved the embarrassment of first learning of such practices when
    a case reaches the Supreme Court. . . . Nevertheless, the Crim-
    252
    Notes: Justice, Chapter 7—Continued
    inal Division has not received a single report or reference concerning
    a possible violation of Section 243. It is therefore again
    requested that all United States Attorneys promptly inform the
    Division of any situation involving a possible violation of the
    statute.
    Comments and suggestions with respect to this problem are
    invited.
    156. Department of Justice Conference, Notes, supra, ch. 4, note 102,
    at 39.
    157. See notes 4 and 7, supra.
    158. Cassell v. Texas, supra, note 150, at 303.
    159. Ibid.
    160. See ch. 4, at 62-66, supra.
    161. There are many factors, however, which should be weighed before
    any information is used. These considerations are discussed in
    connection with section 242 prosecutions in ch. 4, at 65, supra;
    they appear to be equally applicable to section 243 prosecutions.
    162. The original case appears not to have been reported in its entirety,
    but the court’s charge to the Federal grand jury which indicted
    the judge is reported. Charge to Grand July—Civil
    Rights Act, 30 Fed. Cas. 1002 (No. 18,259) (C.C.W.D. Va.
    1878). Later the judge, by a writ of habeas corpus, sought his
    discharge from imprisonment under that indictment, but the Supreme
    Court denied his petition. Ex parte Virginia, supra, note
    74.
    163. It should be noted that under section 243, unlike section 242 (see
    ch. 4, at 61, supra), FBI agents would investigate jury officials
    and not State and local law enforcement officers upon whose cooperation
    the Bureau relies in other cases.
    164. Strauderv. West Virginia, supra, note 73, at 308.
    253

    APPENDIX VII
    Text Table
    Table Page
    I. Allegations of Police Brutality by Race of Victim................... 26
    Tables and Charts
    1. Reversals of Convictions Based on Coerced Confessions, The
    U.S. Supreme Court.................................................................. 256
    2. Police Brutality Matters Received by Department of Justice
    by Region, State, and Race...................................................... 263
    3. Total Number of “144” Civil Rights Cases Received Department
    of Justice by State and Region................................ 265
    4. Lynching by State and Race 1882-1959................................... 266
    5. Lynchings by Regions and Race 1882-1959.............................. 267
    6. Lynchings by Year and Race 1882-1959.................................... 267
    7. Disposition of Police Brutality Matters by Civil Rights Division,
    Department of Justice, by Race................................................ 269
    8. Disposition of Police Brutality Matters Handled by Civil Rights
    Division, Department of Justice, By Region and Race......... 270
    9. Disposition of Police Brutality Matters Handled by Civil Rights
    Division, Department of Justice, Regional Totals.................. 271
    10. Disposition of Police Brutality Matters in Comparison to Total
    Workload of Civil Rights Division, Department of Justice. 271
    11. Slavery and Peonage Matters Received by Civil Rights Division,
    Department of Justice.................................................. 272
    12. Personnel and Budget, Civil Rights Division, Department of
    Justice......................................................................................... 272
    13. Referral Sources of Police Brutality Matters Received by the
    Department of Justice, Negro and Other Minority Group
    Victims.............................................................................................. 272
    14. Police Brutality Cases Filed in Federal Courts by Private
    Persons........................................................................................ 273
    Chart
    1. Department of Justice: Organization............................................. 276
    2. Civil Rights Division—Department of Justice: Organization.. . 277
    255
    256
    constantly asked if he was ready
    to confess; at 2 a.m. of last morning
    began to cry, confession
    given. No counsel, friends, or
    >0
    Cn
    CO
    T a b l e i .— Reversals of convictions based on coerced confessions, The U.S. Supreme Court— Continued
    (Feb. 17, 1936, to June 12, 1961)
    Crimes to which
    Names and descriptions victims confessed and . . . . . Case of victims sentences Description of assailants Description of incident
    Wardv. Texas, 316 William Ward, “ an “ Murder without Titus, Morris, and Arrested at night; taken to 3 dif-
    U.S. 547 (1942). ignorant Negro.” malice”— 3 years’ Henderson Counties, ferent jails in 3 days; carried over
    imprisonment. Tex., police. 100 miles; “ persistent and protracted
    questioning” ; allegedly
    beaten and burned with cigarette
    stubs: denied by some officers,
    confirmed by sheriff of Titus
    County; warned of possibility of
    lynching by mob. No counsel,
    friends, or preliminary hearing
    before confession.
    Ashcraft v. Tennessee, E. E. Ashcraft, 45 Murder— 99 years’ Shelby County, Held incommunicado for 36 hours
    322 U.S. 143 years old, white. imprisonment. Tenn., law enforce- of constant interrogation. No
    (1044) . ment officials. hearing before confession.
    Malinski v. New Morris Malinski, Murder— death . . . New York City Held 4 days incommunicado in
    York, 324 U.S. 401 white. police. hotel room by police. Questioned
    (1045) . ' ' No counsel, friends, or prelimi
    nary hearing before confession.
    Haley v. Ohio, 332 John Haley, 15 years Life imprisonment. Akron, Ohio, Held incommunicado for 5 hours
    U.S. 596 (1948). old, Negro. police. between midnight and 5 a.m.
    Questioned continually until confession
    obtained. No counsel,
    friends, or preliminary hearing
    before confession.
    Watts v. Indiana, 338 Robert Watts, N egro. Murder— d eath .... Indianapolis city Held incommunicado; questioned
    U .S. 49 (1949). police and Indiana intermittently for 1 week by
    State police. relays of police with little time out
    for sleep and food. No counsel,
    friends, or preliminary hearing
    before confession.
    Turner v. Pennsyl- Aaron Turner, race Murder— death.... Philadelphia, Pa., Held for 5 days incommunicado
    vania, 338 U.S. 62 not indicated. police. while being questioned by relays
    (1949). °f police. No counsel, friends,
    or preliminary hearing before
    confession.
    Harris v. South Caro- Harris, Negro, 25 Murder— d eath .... Aiken County, S.C., Held incommunicado for 3 days
    Una. 338 U.S. 68 years old, illiterate. police. and questioned intermittently un-
    (1949). th he confessed. Not permitted
    friends, relatives, or counsel.
    There was no preliminary hearing
    even after confession.
    Rochin v. California, Antonio Rochin, race Possession of nar- Los Angeles County, Stom ach pumped by police
    342 U.S. 165 not indicated. cotics— 60 days’ Calif., deputy against will to obtain narcotics he
    (1952). imprisonment. sheriffs. swallowed.
    KJ
    Cn
    CD
    JO
    CT) O
    T a b l e i .— Reversals of convictions based on coerced confessions, The U.S. Supreme Court— Continued
    (Feb. 17, 1936, to June 12, 1961)
    Crimes to which
    Names and descriptions victims confessed and
    Case of victims sentences Description of assailants Description of incident
    Leyra v. Denno, 347 Buddy Leyra, 50 Murder— d eath .... New York City Approximately 4 days and nights
    U.S. 556 (1954). years old, white. police. of intermittent and intensive
    interrogation; little sleep; psychiatrist
    disguised as general physician
    questioned for 2 hours using
    hypnotic techniques. No counsel,
    friends, or preliminary hearing
    before confession.
    Fikes v. Alabama, William Fikes, Burglary with Selma, Ala., Interrogated intermittently for 9
    352 U.S. 191 schizophrenic, intent to commit chief of police, days, during course of question-
    (1957) . highly suggestible, rape— death. other officers. ing; taken 80 miles away to Kilby
    uneducated, 27 Prison. No counsel, friends, or
    years old, Negro. preliminary hearing before confession.
    Payne v. Arkansas, Frank Payne, Murder— death. .. Pine Bluff, Ark., Interrogated almost constantly
    356 U.S. 560 19 years old, 5th- chief of police. for 3 days; denied food and sleep
    (1958) . grade education, for long periods; threatened with
    Negro. mob violence. No counsel, friends,
    or preliminary hearing before confession.
    5 fl
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    26l
    262
    (Jan. i, 1958, to June 30, i960)
    Table 2.—Police brutality matters received by Department of Justice, by
    region, State, and race
    Northern and Western States Totals
    Negro and
    other minority White Unknown
    Alaska................................. 3 2 I 0
    Arizona.............................. IO 4 O 6
    California........................... 47 8 22 i7
    Colorado............................ 3° 2 U 11
    Connecticut....................... 9 4 3 2
    Hawaii............................... 0 0 0 0
    Idaho.................................. 4 1 2 1
    Illinois................................ 46 18 16 12
    Indiana.............................. 11 2 5 4
    Iowa................................... 1 1 0 0
    Kansas................................ 4 0 4 0
    Maine................................. 0 0 0 0
    Massachusetts.................... 9 0 3 6
    Michigan........................... 28 9 14 5
    Minnesota.......................... 3 0 0 3
    Montana............................ 3 2 1 0
    Nebraska............................ 2 1 1 0
    Nevada............................... 4 0 3 1
    New Hampshire................ 2 1 1 0
    New Jersey......................... 17 4 7 6
    New Mexico...................... 16 8 6 2
    New York.......................... 54 13 24 i7
    North Dakota.................... 4 1 2 1
    Ohio................................... 42 15 20 7
    Oregon............................... 4 1 1 2
    Pennsylvania...................... 38 IO 16 12
    Puerto Rico....................... 6 2 4 0
    Rhode Island..................... 2 0 2 0
    South Dakota.................... 2 1 0 1
    Utah................................... 3 0 3 0
    Vermont............................. 0 0 0 0
    Washington....................... 3 1 1 1
    Wisconsin........................... 4 1 3 0
    Wyoming........................... 1 0 1 0
    Unknown........................... 2 2 0 0
    Totals..................... 414 114 183 117
    263
    (Jan. 1, 1958, to June 30, i960)
    Tabl e 2.—Police brutality matters received by Department of Justice, by
    region, State, and race—Continued
    Southern States Totals
    Negro and
    other minority White Unknown
    Alabama............................ 104 58 33 *3
    Arkansas............................. 57 17 i7 23
    Delaware............................ 4 O 4 0
    District of Columbia......... 8 4 3 1
    Florida............................... “3 20 44 49
    Georgia.............................. 98 48 22 28
    Kentucky........................... 13 1 6 6
    Louisiana........................... 77 35 23 19
    Maryland........................... 24 13 6 5
    Mississippi.......................... 37 21 IO 6
    Missouri............................. 15 4 5 6
    North Carolina.................. 17 5 3 9
    Oklahoma.......................... 15 3 6 6
    South Carolina.................. 38 19 5 12
    Tennessee........................... 51 16 23 12
    Texas.................................. 234 79 109 46
    Virginia.............................. 7 2 2 3
    West Virginia.................... 4 2 2 0
    Totals..................... 9H 347 323 244
    264
    Tabl e 3.—Total number of “144” 1 civil rights cases2 received by Department of
    Justice, by State and region
    (Feb. 1939 to Oct. 21, i960)
    Number of
    State cases
    Alabama............................... 1,021
    Alaska................................... 45
    Arizona................................. 124
    Arkansas............................... 400
    California............................. 985
    Colorado............................... 196
    Connecticut.......................... 96
    Delaware.............................. 26
    District of Columbia........... 315
    Florida.................................. 1, 183
    Georgia................................. 1, 188
    Hawaii.................................. 19
    Idaho.................................... 43
    Illinois................................... 601
    Indiana................................. 225
    Iowa...................................... 68
    Kansas.................................. 96
    Kentucky.............................. 317
    Louisiana.............................. 724
    Maine.................................... 16
    Maryland............................. 198
    Massachusetts....................... 136
    Michigan.............................. 386
    Minnesota............................ 108
    Mississippi............................ 538
    Missouri................................ 445
    State
    Number of
    cases
    Montana...............................
    Nebraska..............................
    Nevada.................................
    New Hampshire..................
    New Jersey...........................
    New Mexico.........................
    New York.............................
    North Carolina....................
    North Dakota......................
    Ohio......................................
    Oklahoma............................
    Oregon.................................
    Pennsylvania........................
    Rhode Island.......................
    South Carolina....................
    South Dakota.......................
    Tennessee.............................
    Texas....................................
    Utah.....................................
    Vermont...............................
    Virginia................................
    Washington..........................
    West Virginia......................
    Wisconsin.............................
    Wyoming..............................
    7i
    50
    65
    47
    278
    242
    811
    292
    20
    i93
    247
    70
    672
    22
    441
    28
    605
    2, 048
    50
    6
    269
    *3
    99
    89
    47
    1 The “144” classification is a number assigned by the Records Office to those cases
    which involve a number of different civil rights violations, including police brutality,
    but excluding the sizable voting category. Although it is unknown exactly what proportion
    of the “144” cases involve police brutality, it is estimated by staff members of
    the Civil Rights Division that such cases are a majority of the “144” group.
    2 A “case” is a communication which, in the opinion of a person in the Department
    of Justice Records Office, contains information of a violation of a civil rights statute.
    Regional comparisons
    9 Southern States (Alabama, Florida, Georgia, Louisiana, *nation
    Mississippi, North Carolina, South Carolina, Texas, total
    Virginia)............................................................................. 7, 704 47. 00
    8 Border States (Arkansas, Delaware, Kentucky, Maryland,
    Missouri, Oklahoma, Tennessee, West Virginia)
    and the District of Columbia........................................ 2, 652 16.18
    Combined total for 9 Southern States, 8 Border States,
    and the District of Columbia....................................... 10, 356 63. 18
    33 Northern and Western States......................................... 6, 036 36. 82
    Total, 50 States........................................................ 16,392
    265
    Table 4.—Lynchings by State and race, 1882-19591
    State
    Alabama...................... .........................
    Arizona..................................................
    Arkansas................................................
    California...............................................
    Colorado................................................
    Delaware................................................
    Florida....................................................
    Georgia..................................................
    Idaho......................................................
    Illinois....................................................
    Indiana..................................................
    Iowa........................................................
    Kansas....................................................
    Kentucky...............................................
    Louisiana................................................
    Maryland...............................................
    Michigan................................................
    Minnesota..............................................
    Mississippi..............................................
    Missouri..................................................
    Montana................................................
    Nebraska................................................
    Nevada...................................................
    New Jersey.............................................
    New Mexico..........................................
    New York..............................................
    North Carolina......................................
    North Dakota........................................
    Ohio................................. ......................
    Oklahoma..............................................
    Oregon...................................................
    Pennsylvania..........................................
    South Carolina......................................
    South Dakota........................................
    Tennessee..............................................
    Texas.............................. .......................
    Utah.......................................................
    Vermont...........................................
    Virginia.................................... .............
    Washington............................................
    West Virginia........................................
    Wisconsin...............................................
    Wyoming............................................. .
    Total.............................................
    Percent.........................................
    1 Source: Tuskegee Institute, Tuskegee, Ala.
    White Negro Total
    48 299 347
    31 O 3i
    58 226 284
    41 2 43
    66 2 68
    0 I 1
    25 257 282
    39 491 530
    20 O 20
    15 19 34
    33 14 47
    17 2 19
    35 19 54
    63 142 205
    58 335 39i
    2 27 29
    7 1 8
    5 4 9
    40 538 578
    53 69 122
    82 2 84
    52 5 57
    6 0 6
    0 1 1
    33 3 38
    1 1 2
    15 84 99
    13 3 16
    IO 16 26
    82 40 122
    20 1 21
    2 6 8
    4 156 160
    27 0 27
    47 204 251
    141 352 493
    6 2 8
    1 0 1
    17 83 100
    25 1 26
    20 28 48
    6 0 6
    ______30 5 35
    1,294 3,44i 4, 735
    27- 33 72. 67 100
    266
    Table 5.—Lynchings by region and race, 1882-1959 1
    Region
    9 Southern States (Alabama, Florida,
    Georgia, Louisiana, Mississippi,
    North Carolina, South Carolina,
    Virginia, Texas)........................
    Percent...................................
    8 Border States (Arkansas, Delaware,
    Kentucky, Maryland, Missouri,
    Oklahoma, Tennessee, West Virginia)
    ..........................................
    Percent...................................
    9 Southern States, 8 Border States..
    Percent.......................
    33 Northern and Western States...
    Percent.......................
    Total, 50 States................................
    Percent...................................
    Percent
    national
    Whites Negroes Total total
    385 2,595 2,980 62.94
    12.92 87.08 too ............
    325 737 1,062 22.43
    30.60 69-40 too ............
    710 3,332 4,042 85-36
    17-57 82.43 too
    584 109 693 14.64
    84.27 15-73 too ............
    1,294 3,44i 4,735 100
    27-33 72.67 too
    1 Source: Tuskegee Institute, Tuskegee, Ala.
    Table 6.—Lynchings by year and race, 1882-19591
    Year
    1882........................................................
    1883........................................................
    1884........................................................
    1885........................................................
    1886........................................................
    1887........................................................
    1888........................................................
    1889........................................................
    1890........................................................
    1891........................................................
    1892........................................................
    1893........................................................
    1894........................................................
    1895........................................................
    1896........................................................
    1897........................................................
    1898........................................................
    1899........................................................
    I9°O........................................................
    i9°i........................................................
    i9°2..............................................................................
    1903........................................................
    i9°4........................................................
    1905........................................................
    1906........................................................
    1907.......................................................
    i9°8........................................................
    1909........................................................
    1910..................................................••••
    See footnote at end of table.
    White Negro Total
    64 49 n3
    77 53 130
    160 5i 211
    no 74 184
    64 74 138
    50 7o 120
    68 69 137
    76 94 170
    11 85 96
    7i IT3 184
    69 161 230
    34 118 152
    58 i34 192
    66 ”3 179
    45 78 123
    35 123 158
    19 101 120
    21 85 106
    9 106 ”5
    25 105 130
    7 85 92
    15 84 99
    7 76 83
    5 57 62
    3 62 65
    2 58 60
    8 89 97
    13 69 82
    9 67 76
    267
    Table 6.—Lynchings by year and race, 1882-1 ggg—Continued
    Year
    1911............................
    I9!2............................
    1913............................
    1914............................
    1915............................
    1916............................
    1917............................
    I918............................
    1919............................
    1920............................
    1921............................
    1922............................
    1923............................
    1924............................
    1925............................
    1926............................
    1927............................
    1928............................
    1929............................
    193°............................
    I93I............................
    1932............................
    1933............................
    1934............................
    1935............................
    1936............................
    1937............................
    i938............................
    1939............................
    1940............................
    i94i............................
    1942............................
    1943............................
    1944............................
    1945............................
    1946............................
    1947............................
    I948............................
    1949............................
    195°............................
    I951............................
    1952............................
    1953............................
    1954............................
    1955............................
    i956............................
    1957............................
    1958............................
    1959............................
    White Negro Total
    7 60 67
    2 61 63
    1 51 52
    4 51 55
    13 56 69
    4 50 54
    2 36 38
    4 60 64
    7 76 83
    8 53 61
    5 59 64
    6 5i 57
    4 29 33
    0 16 16
    0 i7 i7
    7 23 30
    0 16 16
    1 IO 11
    3 7 IO
    1 20 21
    1 12 13
    2 6 8
    4 24 28
    0 15 15
    2 18 20
    0 8 8
    0 8 8
    0 6 6
    1 2 3
    1 4 5
    0 4 4
    0 6 6
    0 3 3
    0 2 2
    0 1 1
    0 6 6
    0 1 1
    1 1 2
    0 3 3
    1 1 2
    0 1 1
    0 0 0
    0 0 0
    0 0 0
    0 3 3
    0 0 0
    1 0 1
    0 0 0
    0 1 1
    1, 294 3> 441 4, 735
    1 Source: Tuskegee Institute, Tuskegee, Ala.
    268
    Table 7.—Disposition of police brutality matters by Civil Rights Division, Department
    of Justice, by race of victim
    (Jan. 1, 1958, to June 30, i960)
    Negro and
    Matters received:1 '1'otal other minority White Unknown
    Number.................................. I, 328 461 5°6 361
    Percent of total.....................
    Prosecution authorized: 2
    IOO 35 38 27
    Number.................................. 52 19 18 15
    Percent of matters received. .
    Prosecution instituted:
    1. Cases filed, pending trial:3
    3-9 4.1 3.6 4. 2
    Number.............................. 43 2 3 38
    Percent of matters received.
    2. Grand jury refused to indict;
    case closed: 4
    3-2 O. 4 0. 6 IO.5
    Number............................. 16 8 4 4
    Percent of matters received.
    3. Gases terminated unsuccessfully
    in trial court: 5
    1. 2 i-7 0. 8 1. 1
    Number............................. 8 4 3 1
    Percent of matters received.
    4. Cases terminated successfully
    in trial court: 6
    0. 6 0.9 0. 6 0.3
    Number.............................. 6 1 2 3
    Percent of matters received. o-5 0. 2 0. 4 0. 6
    The source of this information is the records of the Civil Rights Division:
    1 Matters received.—This category consists of the complaints received by the Department
    of Justice during the fiscal year. This incoming material is sifted by the
    Records Division of the Department of Justice to eliminate crank letters, duplicate
    complaints, and matters not within its jurisdiction. Thereupon the communication is
    assigned a complaint number and a Department of Justice file number and is sent
    to the Civil Rights Division administrative office. Matters received, then, represent
    a group of complaints which, in the estimation of the Records Division, are legitimate
    problems for the Civil Rights Division. In most instances these complaints present
    a prima facie civil rights complaint which can only be disposed of through assessing
    the result of a field investigation.
    2Prosecution authorized (Department of Justice, IBM Code 021).—This category
    includes any matter in which the Division has authorized the U.S. attorney either to
    make a presentment to a grand jury or to file an information. At this point a “matter”
    also becomes a “case” for purposes of future Division reference.
    8 Cases filed, pending trial (Department of Justice, IBM Codes 201, 202, 204, 205,
    220, 222).—The filing of an indictment or information makes a case a “case filed.”
    4 Grand jury refused to indict; case closed (Department of Justice IBM Code
    120).—These are cases where a presentment has been made to a grand jury which
    has returned no true bill, and where no further action (such as the filing of an
    information) is intended.
    8 Cases terminated unsuccessfully in trial court (Department of Justice IBM Codes
    320, 321, 325, 326, 330, 340, 345, 370).—These include jury verdicts of acquittal,
    directed verdicts, dismissals by the Government, etc.
    8 Cases terminated successfully in trial court (Department of Justice IBM Codes
    360, 380).—Convictions.
    269
    (Jan. i, 1958, to June 30, i960)
    Tabl e 8.—Disposition of police brutality matters handled by Civil Rights Division,
    Department of Justice, by region and race
    Northern and Western States
    Matters received:
    Total
    Negro and
    other minority White Unknown
    Number.................................. 414 114 183 117
    Percent of total......................
    Prosecution authorized:
    IOO 27-5 44.2 28. 3
    Number.................................. 16 I 11 4
    Percent of matters received..
    Prosecution instituted:
    3-9
    1. Cases filed, pending trial:
    Number.............................. 16 I I 14
    Percent of matters received.
    2. Grand jury refused to in-
    3-9
    diet; case closed:
    Number..............................
    Percent of matters received.
    11
    2.7
    8 I 2
    3. Gases terminated unsuccessfully
    in trial court:
    Number..............................
    Percent of matters received.
    3
    0.7
    1 2 0
    4. Cases terminated successfully
    in trial court:
    Number............................... 4 1 O 3
    Percent of matters received. 1.0
    Southern States
    Matters received:
    Number................................... 9i4 347 323 244
    Percent of total......................
    Prosecution authorized:
    100 38.0 35-3 26. 7
    Number................................... 36 18 7 11
    Percent of matters received..
    Prosecution instituted:
    3-9
    1. Cases filed, pending trial:
    Number.............................. 30 1 2 27
    Percent of matters received.
    2. Grand jury refused to in-
    3-3
    diet; case closed:
    Number..............................
    Percent of matters received.
    5
    °- 5
    0 3 2
    3. Cases terminated unsuccessfully
    in trial court:
    Number..............................
    Percent of matters received
    5
    o-5
    3 1 1
    4. Cases terminated successfully
    in trial court:
    Number.............................. 2 0 2 0
    Percent of matters received. 0. 2
    270
    Table 9.—Disposition of police brutality matters handled by Civil Rights Division,
    Department of Justice, regional totals
    (Jan. 1, 1958, to June 30, i960)
    Total
    Southern
    States
    Northern and
    Western
    States
    Matters received:
    Number............................................... 1,328 914 414
    Percent of total...................................... IOO 68.8 31. 2
    Prosecution authorized:
    Number............................................... 52 36 l6
    Percent of total...................................... IOO 65. 2 34- 8
    Prosecution instituted:
    1. Cases filed, pending trial:
    Number........................................... 46 30 16
    Percent of total.................................. IOO 65.2 34.8
    2. Grand jury refused to indict; case
    closed:
    Number.............................................. 16 5 11
    Percent of total.................................. IOO 31-3 68. 7
    3. Cases terminated unsuccessfully in
    trial court:
    Number.............................................. 8 5 3
    Percent of total.................................. IOO 62. 5 37-3
    4. Cases terminated successfully in trial
    court:
    Number.............................................. 6 2 4
    Percent of total.................................. IOO 33-3 66. 7
    Table io .—Disposition of police brutality matters in comparison to total workload
    of Civil Rights Division, Department of Justice
    (Jan. 1, 1958, to June 30, i960)
    Police brutality matters
    All matters Number Percent
    Matters received.................................... 4,471 1,328 29- 7
    Prosecution authorized:
    Number........................................... 87 52 59-8
    Percent of matters received.............. 1.9 . 3-9
    Prosecution successful:
    Number........................................... 18 6 33-3
    Percent of matters received.............. 0.4 . o-5
    Percent of prosecutions authorized.. 20.7 . 11.5
    Table ii .—Slavery and peonage matters received by Civil Rights Division, Department
    of Justice
    (Jan. i, 1958, to June 30, i960)
    Tabl e 13.—Referral sources of police brutality matters received by the Department
    of Justice, Negro and other minority group victims
    Source of complaint Total
    Northern and Western States. . 25
    Southern States......................... 42
    Negro and
    other minority
    6
    24
    White8
    5
    Unknown
    11
    *3
    Total all States................ 67 30 13 24
    Tabl e 12.—Personnel and budget, Civil Rights Division, Department of Justice
    T958 *959
    Amount available............. $185, 000 $483, 000 $466, 000
    zp6z
    $689, 000
    Number of employees at
    end of fiscal year:
    Attorneys........................ 14
    Other.............................. 25
    1 As of Nov. 15, i960.
    27
    29
    26
    29
    32
    1 32
    (Jan. 1, 1958, to June 30, i960)
    FBI.....................................................
    U.S. attorney.....................................
    Private citizen...................................
    State authority..................................
    Court..................................................
    Newspaper report.............................
    U.S. marshal.....................................
    Other..................................................
    Other agency.....................................
    Unknown...........................................
    Total.........................................
    7959 i960 Total
    93 154 134 1 381
    ........ 3 6 9
    2 9 10 21
    1 7 1 9
    1 10 10 21
    1 1 18 20
    98 184 179 461
    1 82 percent.
    272
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    . q F. 2d 746 (5th Cir. 1947)............. 196, 197, 199
    280
    Page
    Culombe v. Connecticut, 367 U.S. 568 (1961)......................................... 262
    Culp v. United States, 131 F. 2d 93 (8th Cir. 1942)............................. 196
    Davis v. Johnson, 138 F. Supp. 572 (N.D.I11. 1955)............................ 228
    Deloach v. Rogers, 268 F. 2d 928 (5th Cir. 1959)................................. 230
    Dow v. Carnegie-Illinois Steel Corp., 224 F. 2d 414 (3rd Cir. 1955) . .. 250
    Downie v. Powers, 193 F. 2d 760 (ioth Cir. 1951)............................ 184
    Dye v. Cox, 125 F. Supp. 714 (E.D.Va. 1954)................................ 228, 229
    Eubanks v. Louisiana, 356 U.S. 584 (1958)........................................... 243
    Ex parte Virginia, 100 U.S. 339 (1880)............... 95, 243, 247, 248, 252, 253
    Fay v. New Fork, 332 U.S. 261 (1947)..................................... 247, 248, 249
    Fernelius v. Pierce, 138 P. 2d 12 (Cal. 1943)......................................... 238
    Fikes v. Alabama, 352 U.S. 191 (1957)................................................. 260
    Fletcher v. State of New Fork, 183 N.Y. S. 2d 265 (1959).................... 234
    Frame v. City of New Fork, 34 F. Supp. 194 (S.D.N.Y. 1940)........... 111
    Frohwerk v. United States, 249 U.S. 204 (1919)..................................... 202
    Gibson v. Mississippi, 162 U.S. 565 (1896)................................. 95, 247, 248
    Glasser v. United States, 315 U.S. 60 (1942).......................................... 249
    Glicker v. Michigan Liquor Control Commission, 160 F. 2d 96 (6th Cir.
    1947)..................................................................................................... 229
    Grovey v. Townsend, 295 U.S. 45 (1935)................................................ 201
    Guinn v. United States, 238 U.S. 347 (1915)......................................... 200
    Hague v. CIO, 307 U.S. 496 (1939)...................................................... 229
    Haifetz v. Rizzo, 171 F. Supp. 654 (E.D. Pa. 1959)............................ 229
    Hale v. Kentucky, 303 U.S. 613 (1938).................................................. 243
    Haley v. Ohio, 332 U.S. 596 (1948)....................................................... 259
    Hans v. Louisiana, 134 U.S. 1 (1890).................................................... in
    Hardwick v. Hurley, 289 F. 2d 529 (7th Cir. 1961)......................... 228, 230
    Hargrove v. Town of Cocoa Beach, 96 So. 2d 130 (Fla. 1957).......... 233, 235
    Harris v. South Carolina, 338 U.S. 68 (1949)........................................ 259
    Hernandez v. Texas, 347 U.S. 475 (1954)................................. 243, 244, 247
    Hill v. Texas, 316 U.S. 400 (1942)................................................... 243, 248
    Hinton v. City of New Fork, 212 N.Y. S. 2d 97 (1961)...................... 234
    Hoffman v. Halden, 268 F. 2d 280 (9th Cir. 1959)............................... 230
    Holler v. State of New Fork, 200 N.Y.S. 2d 840 (i960)....................... 234
    Hollins v. Oklahoma, 295 U.S. 394 (1935)............................................ 243
    Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911).............. in
    Hurtado v. California, no U.S. 516 (1884)........................................... 247
    In re State of New Fork, 256 U.S. 490 (1920)....................................... in
    Johnson v. Feilding, 165 F. Supp. 76 (M.D.Ala. 1958)...................... 171
    Jones v. Franklin, 340 P. 2d 123 (Col. 1959)........................................ 234
    Jones v. Shears, 299 P. 2d 986 (Cal. 1956)........................................... 235
    Jordan v. Massachusetts, 225 U.S. 167 (1912)....................................... 248
    Kelly v. Curtis, 102 A. 2d 471 (N.J. 1954)............................................ 235
    Koehler v. United States, 189 F. 2d 711 (5th Cir. 1951), cert, denied,
    342 U.S. 852 (1951), rehearing denied, 342 U.S. 889 (1951)............ 196
    281
    Page
    Lane v. Wilson, 307 U.S. 268 (1939).................................. 229
    Larson v. Lester, 49 N.W. 2d 414 (Wis. 1951)...................................... 234
    Lewis v. Brautigam, 227 F. 2d 124 (5th Cir. 1955).............................. 231
    Leyra v. Denno, 347 U.S. 556 (1954)..................................................... 260
    Lincoln County v. Luning, 133 U.S. 529 (1890)..................................... in
    Logan v. United States, 144 U.S. 263 (1892)......................................... 201
    Lomax v. Texas, 313 U.S. 545 (1941)................................................... 257
    Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951), cert, denied, 342
    U.S. 831 (1951)............................................................................... 182, 196
    Mackey v. Chandler, 152 F. Supp. 579 (W.D.S.C. 1957)..................... 228
    Malinski v. New Tork, 324 U.S. 401 (1945)......................................... 258
    Maxwell v. Dow, 176 U.S. 581 (1900).................................................. 147
    McCrink v. City of New Tork, 71 N.E. 2d 419 (N.Y. 1947)............ 235, 238
    McShane v. Moldovan, 172 F. 2d 1016 (6th Cir. 1949)......................... 229
    Mead v. O’Connor, 344 P. 2d 478 (N.Mex. 1959)................................ 234
    Missouri v. Lewis, 101 U.S. 22 (1880).................................................. 247
    Molitor v. Kaneland Community Unit District No. 302, 163 N.E. 2d 89
    (IIL1959)............................................................................................ 235
    Monaco v. Mississippi, 292 U.S. 313 (1934)......................................... m
    Monroe v. Pape, 365 U.S. 167 (1961).......................... 72, 228, 229, 230, 231
    Montoya v. People, 345 P. 2d 1062 (Colo. 1959).................................. 244
    Morgan v. Sylvester, 220 F. 2d 758 (2d Cir. 1955), affirming per curiam,
    125 F. Supp. 380 (S.D. N.Y. 1954)......................................... 228, 229
    NAACP v. Alabama, 357 U.S. 449 (1958)............................................ 188
    Neal v. Delaware, 103 U.S. 370 (1881)............................... 95, 243, 247, 248
    Nixon v. Condon, 286 U.S. 73 (1932)..................................................... 200
    Nixon v. Herndon, 273 U.S. 536 (1927)................................................. 200
    Norris v. Alabama, 294 U.S. 587 (1935)................ 96, 171, 243, 244, 247, 248
    Ortega v. Ragen, 216 F. 2d 561 (7th Cir. 1954).................................. 229
    Orr v. Walker, 310 S.W. 2d 808 (Ark. 1958)....................................... 234
    Padilla v. Chavez, 306 P. 2d 1094 (N.Mex. 1957)............................... 235
    Palmer v. Ohio, 248 U.S. 32 (1918)...................................................... in
    Patton v. Mississippi, 332 U.S. 463 (1947)................................ 243, 247, 248
    Payne v. Arkansas, 356 U.S. 560 (1959)................................................ 260
    People v. Dukes, 169 N.E. 2d 84 (Ill. i960).......................................... 248
    People v. Harris, 161 N.E. 2d 809 (Ill. 1949)....................................... 248
    People v. Roxborough, 12 N.W. 2d 466 (Mich. 1943), cert, denied, 323
    U.S. 749 (1944)................................................................................... 248
    People v. Salvatore, No. 118, N.Y. Ct. App., July 7, 1961................... 244
    Peters v. Bellinger, 159 N.E. 2d. 528 (Ill. 1959)................................... 238
    Peters v. Bellinger, 19 Ill. 2d 367 (1959). rev’d on other grounds, 166 N.E.
    2d 581 (i960)...................................................................................... 236
    Picking v. Pennsylvania R.R., 151 F. 2d 240, (3d Cir. 1945), cert, denied,
    332 U.S. 776 (1947)....................................................................... 229
    282
    Page
    Pierce v. United States, 146 F. 2d 84 (5th Cir. 1944), cert, denied, 324
    U.S. 873 (1945), petition denied, 157 F. 2d 848 (5th Cir. 1946), cert.
    denied, 329 U.S. 814 (1947)............................................................. 202
    Pierre v. Louisiana, 306 U.S. 354 (1939)............................................ 234, 244
    Pollock v. Williams, 322 U.S. 4 (1944).................................................. 202
    Pool v. United States, 260 F. 2d 57 (9th Cir. 1958)......................... 179, 196
    Powell v. State of New Fork, 191 N.Y.S 2d 846 (1959)........................ 234
    Reck v. Pate, 367 U.S. 433 (1961)..................................................... 179» 2^2
    Reece v. Georgia, 350 U.S. 85 (1955)................................................. 243, 252
    Refoule v. Ellis, 74 F. Supp. 336 (N.D. Ga. 1947).............................. 229
    Robeson v. Fanelli, 94 F. Supp. 62 (S.D.N.Y. 1950)........................ 195, 232
    Rochin v. California, 342 U.S. 165 (1952)......................................... 179, 259
    Rogers v. Richmond, 365 U.S. 534 (1961).............................................. 261
    Russell v. Men of Devon, 2 Durn. and East 667, 100 Eng. Rep. 359
    (1788).................................................................................................. 235
    Schuster v. City of New Fork, 180 N.Y.S. 2d 265 (1958)...................... 235
    Screws v. United States, 325 U.S. 91 (1945)........................................... 6, 47,
    108, in, 172, 182, 195, 196, 199, 201, 227, 230
    Sheffield v. Farris, Civ. No. 11774, S.D. Tex., Mar. 17, 1959............ 229
    Shelley v. Kraemer, 334 U.S. 1 (1948).................................................... 196
    Shephard v. Florida, 341 U.S. 50 (1951)................................................ 243
    Simmons v. Whitaker, 252 F. 2d 224 (5th Cir. 1958)........................... 228
    Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873)................. 182, 203, 243
    Smithy. Texas, 311 U.S. 128 (1940)..................................................... 243
    Snowden v. Hughes, 321 U.S. 1 (1944)................................................... 230
    Snyder v. Massachusetts, 291 U.S. 97 (1934).......................................... 247
    Spano v. New Fork, 360 U.S. 315 (1959).............................................. 261
    State v. Jones, 130 S.E. 747 (S.C. 1925)............................................... 233
    State v. Myers, 79 N.W. 2d 382 (la. 1956)........................................... 233
    Strauder v. West Virginia, 100 U.S. 303 (1880)..................................... 95,
    196, 243, 247, 248, 249, 253
    Taylor v. Georgia, 315 U.S. 25 (1942)............................................... 202, 204
    The Civil Rights Cases, 109 U.S. 3 (1883)............................................. 195
    Thiel v. Southern Pac. Co., 328 U.S. 217 (1946)............................... 247, 250
    Turner v. Pennsylvania, 338 U.S. 62 (1949)........................................... 259
    Twining v. New Jersey, 211 U.S. 78 (1908).......................................... 201
    United States v. Barber, Crim. No. 1428, M.D. Ga., Mar. 18, 1959. 177, 225
    United States v. Buntin, 10 Fed. 730 (C.G., S.D. Ohio 1882)......... 195
    United States v. Chandler, 157 F. Supp. 753 (S.D. W.Va. 1957)...... 200
    United States v. Clark, Crim. No. 3183, D. la., Oct. 30, 1959. 172, 197, 226
    United States v. Classic, 313 U.S. 299 (1941).................................... 195, 201
    United States v. Dial, Crim. No. 1348, N.D. Ala., May 14, 1954. ... 202
    United States v. Dunn, Crim. No. 11,205, S.D. Fla., Aug. 8, i960. . . 178,
    198, 199, 201
    United States v. Ellis, 43 F. Supp. 321 (W.D.S.C. 1942).................... 200
    283
    Page
    United States v. Fontana, 231 F. 2d 807 (3d Cir. 1956)........................ 200
    United States v. Fujimoto, 105 F. Supp. 727 (D. Hawaii 1952), writ
    of prohibition or mandamus denied, 344 U.S. 852 (1952)..................... 248
    United States v. Gaskin, 320 U.S. 527 (1944)........................................ 202
    United States ex rel. Goldsby v. Harpole, 263 F. 2d 71 (5th Cir.
    1959), cert, denied, 361 U.S. 838, rehearing denied, 361 U.S. 850
    (i959)............................................................... 194, 243, 245, 248, 249, 250
    United States v. Hunter, 214 F. 2d 356 (5th Cir. 1954), cert, denied, 348
    U.S. 888 (1954)................................................................................... 195
    United States v. Ingalls, 73 F. Supp. 76 (S.D. Cal. 1947).................... 203
    United States ex rel. Jackson v. Brady, 133 F. 2d 476 (4th Cir. 1943),
    cert, denied, 319 U.S. 746 (1943).................................................... 248, 249
    United States v. Koch, Crim. No. 18850, E.D. Ill., June 17, 1958. . 176, 226
    United States v. Konovsky, 202 F. 2d 721 (7th Cir. 1953)................ 171, 196
    United States v. Lowery, Crim. No. 13235, S.D. Tex., Feb 19,
    J958................................................................................................ 179,225
    United States v. Lynch, 94 F. Supp. ion, (N.D. Ga. 1950), ajfd,
    189 F. 2d 476 (5th Cir. 1951), cert, denied, 342 U.S. 831
    (195O............................................................................ I71, 184, 195, 196
    United States v. Minnick, Crim. No. 8466-M, S.D. Fla., June 26,1953. 199
    United States v. Nathan, 238 F. 2d 401 (7th Cir. 1956), cert, denied, 353
    U.S. 910 (1957), rehearing denied, 353 U.S. 951 (1957)................... 200
    United States v. Payne, Crim. No. 55,788, N.D. Ga., Mar. 25,
    1959.................................................................................................. 177,225
    United States v. Reynolds, 235 U.S. 133 (1914)...................................... 202
    United States v. Saxon, Crim. No. 2091, M.D. Ala., June 11, 1958.. 177, 226
    United States v. Saylor, 322 U.S. 385 (1944), rehearing denied, 323 U.S.
    809(1944)............................................................................................ 200
    United States v. Skurla, 126 F. Supp. 713 (W.D. Pa. 1954)................ 200
    United States v. Stackpole, Crim. No. 2026, E.D. Tex., 1958.............. 197
    United States v. Stone, 188 Fed. 836 (D. Md., 1911)............................ 195
    United States v. Trierweiler, 52 F. Supp. 4 (E.D. Ill. 1943)............. 171, 195
    United States v. U. S. Klans, 194 F. Supp. 897 (M.D. Ala.
    1961)................................................................................ 171,184,185,201
    United States v. Waddell, 112 U.S. 76 (1884)...................................... 201
    United States v. Williams, 341 U.S. 70 (1951).......................... 200, 201, 202
    United States v. Williams, 341 U.S. 97 (1951)....................................... 196
    Vander slice v. Shoemake, 102 So. 2d 804 (Miss. 1958)...................... 234, 239
    Vernon v. Alabama, 313 U.S. 547 (1941)............................................... 257
    Virginia v. Rives, 100 U.S. 313 (1880).................................................. 243
    Wakat v. Harlib, 253 F. 2d 59 (7th Cir. 1958)................................ 231, 234
    Ward v. Texas, 316 U.S. 547 (1942)..................................................... 258
    Watson v. Maryland, 218 U.S. 173 (1910)........................................ 247, 248
    Watts v. Indiana, 338 U.S. 49 (1949).................................................... 259
    White v. Texas, 309 U.S. 631 rehearing denied, 310 U.S. 530 (1940).. 256
    White v. Towers, 235 P. 2d 209 (Cal. 1951)........................................ 233
    284
    Part VIII—THE AMERICAN INDIAN
    NOTES: INDIANS, Chapter i
    i. U.S. Dept, of Interior, Justifications for Appropriations, Bureau of
    Indian Affairs, Fiscal 1962.
    2. This estimate is based on the number of tribes voting on the consent
    requirement of the Indian Reorganization Act. It includes only
    those tribes under Federal supervision. There are, perhaps, a dozen
    additional tribes under State supervision which have not been treated
    in this report.
    3. Act of June 2, 1924, 43 Stat. 253, 8 U.S.C. sec. 3 (1958).
    4. 21 U.S. (Wheat.) 543,574 (1823).
    5. Id. at 589.
    6. DeTocqueville, Democracy in America, 28 (1947).
    7. For discussion of early history, see 10 Collier’s Encyclopedia 453-474
    (1958); Fey and McNickle, Indians and Other Americans (1959);
    “American Indians and American Life”, 311 The Annals of the
    American Academy of Political and Social Science 1—165 (J957)’
    8. McNickle, “Indian-White Relations from Discovery to 1887,” 311
    The Annals of the American Academy of Political and Social Science
    9 (i957)-
    9. “Correspondence of Andrew Jackson,” ed. John S. Bassett, vol. 2,
    pp. 277-82.
    10. Act of May 28, 1830, 4 Stat. 411, 25 U.S.C. sec. 174 (1958).
    11. The Cherokees provide an example of the great progress made in
    adjusting to the white man’s standards. In 1826, they were reported
    to have 22,000 cattle; 7,600 horses; 46,000 swine; 2,500
    sheep; 762 looms; 1,488 spinning wheels; 172 wagons; 2,948 plows;
    10 saw mills; 31 grist mills; 62 blacksmith shops; 8 cotton machines;
    18 schools; 18 ferries, and a number of public roads. In 1827,
    they adopted a written constitution providing for an executive, a
    bicameral legislature, a supreme court and a code of laws. Fey
    and McNickle, Indians and Other Americans 30 (1959).
    12. DeTocqueville, op. cit. supra, note 5.
    13. For Knox’s views, see American State Papers, Class II, Indian Affairs,
    Vol. I.
    14. U.S. Bureau of Indian Affairs, Commissioner’s Annual Report
    (1872).
    15- 31 U.S. (6 Pet.) 515, 593 (1832).
    16. 30 U.S. (5 Pet.) 1, 17 (1831).
    17. Id. at 17, 18.
    18. Fey and McNickle, op. cit. supra note 11, at 66. [Emphasis added.]
    285
    Notes: Indians, Chapter i—Continued
    19. Act of March 3, 1871, ch. 126, 16 Stat. 566, 25 U.S.C. sec. 71
    (1958). For discussion, see Cohen, Handbook of Federal Indian
    Law 66 (1941).
    20. Act of February 8, 1887, 24 Stat. 388, 25 U.S.C. sec. 332 (1958).
    21. While it is true that some allotments were made prior to 1887,
    they were not great in number and did not represent a uniform
    Federal policy such as was contained in the General Allotment
    Act of 1887.
    22. Fey and McNickle, op. cit. supra note 11, at 72.
    23. 12 Cong. Rec. 782 (1881).
    24. Id. at 783.
    25. H.R. Rep. No. 1576, 46th Cong., 2d sess. (May 28, 1880).
    26. Haas, “Legal Aspects of Indian Affairs from 1887 to 1957,” 311
    The Annals of the American Academy of Political and Social Science
    I3(J957)-
    27. Fey and McNickle, op. cit. supra, note 11, at 67, 68 (quoting 1890
    Annual Rep. of Comm, on Indian Affairs).
    28. Id. at 74.
    29. Meriam, The Problems of Indian Administration (1928).
    30. Act of June 18, 1934, 48 Stat. 984, 988, 25 U.S.C. secs. 461, 478
    (i958)-
    31. Ten bills, affecting more than 66,000 Indians in 10 States were introduced
    in Congress in 1954. In hearings most of the Indians
    opposed termination. Six of these bills were passed affecting two
    additional tribes. Congress has practically discontinued this type
    of legislation at the present time. See 68 Stat. 250, 718, 724, 768,
    868, 1099, 25 U.S.C. secs. 891-93, 564-564^, 691-93, 721, 677-
    677c, 741 (1958) for the six bills passed in 1954 and 70 Stat. 893,
    937, 963> 25 U.S.C. secs. 791-95, 821-24, 841-43 (1958) for the
    three 1956 bills.
    32. Examples of this legislation other than termination acts, are: (1)
    Extension of criminal and civil jurisdiction to certain State and territorial
    courts (Alaska, Calif., Minn., Nebr., Oreg., and Wis.) and
    consent for others to assume similar jurisdiction. 18 U.S.C. sec.
    1162 (1958); 28 U.S.C. sec. 1360 (1958). (2) Local option on
    liquor controls, Act of Aug. 15, 1953, 67 Stat. 586, 18 U.S.C. 1161
    (1958). (3) Authorized study of Indian education, including
    problems of transferring Indians to public schools, Act of July 14,
    1956, 70 Stat. 531, 25 U.S.C. sec. 304a (1958).
    33. “Land Transactions”, Senate Committee Print 85th Cong., 2d Sess.
    15, 18; Lindley, “Why Indians Need Land,” Christian Century, November
    1957.
    286
    NOTES: INDIANS, Chapter 2
    1. Commission on the Rights, Liberties, and Responsibilities of the
    American Indian, A Program for Indian Citizens, A Summary
    Report, 41 (1961).
    2.24111.8.591,598(1916).
    3. Cohen, Handbook of Federal Indian Law 274, 275, 276 (*i945)
    4. 16311.8.376,384(1896).
    5. 10911.8.556(1883).
    6. Act of March 3, 1885, 23 Stat. 385, 18 U.S.C. sec. 1153 (1958).
    7. 35 Stat. 1151; 47 Stat. 337, 18 U.S.C. sec. 1153 (1958).
    8. A Program for Indian Citizens, op. cit. supra, note 1, at 23.
    9. Indian women marrying citizens became citizens by an 1888 law
    (25 Stat. 392); some World War I Indian veterans were made
    citizens by a 1919 law (41 Stat. 350); others had been made citizens
    by treaty.
    10. Act of June 2, 1924, 43 Stat. 253, 8 U.S.C. sec. 3 (1958).
    11. The Nationality Act of 1940 stated that a child born in the United
    States to an Indian, Eskimo, Aleutian, or other aboriginal native
    would be a citizen at birth. This was reenacted on June 27, 1952,
    66 Stat. 235, 8 U.S.C. sec. 1401 (1958).
    12. Act of August 15, 1953, 67 Stat. 586, 18 U.S.C. sec. 1161 (1958).
    However, State liquor laws, insofar as they distinguish between
    Indians and non-Indians may well amount to a denial of equal protection
    in violation of the 14th amendment.
    13. Pub. L. No. 48, 87th Cong., 1st sess. (June 16, 1961).
    14. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
    15. U.S. v. Kagama, 118 U.S. at 375, 384 (1886).
    16. Solicitor of the Department of Interior, Federal Indian Law, 32-43,
    58-86, and ch. IX (1958).
    17. Porter v. Hall, 271 Pac. 411 (Ariz. 1928).
    18. Harris on v. Leveen, 196 P. 2d 456 (Ariz. 1948).
    19. Id. at 462, 463.
    20. Acosta v. San Diego County, 272 P. 2d 92 (Cal. 1954).
    21. Daniels, “American Indians,” 29 The Reference Shelf 106 (1957) •
    22. For discussion, see Cohen, Handbook of Federal Indian Law 89-91
    (1941)-
    23. See note 4, supra.
    24. Memo, Solicitor of the Interior Department, Aug. 8,1938. (See
    Federal Indian Law, op. cit. supra note 16, at 399).
    287
    Notes: Indians, Chapter 2—Continued
    25. Mappy. Ohio, 367 U.S. 421 (1961); Herndon v. Lowry, 301 U.S.
    242 (1936); Near v. Minnesota, 283 U.S. 697 (193°) > P°weU v-
    Alabama, 287 U.S. 45 (1932).
    26. Toledo v. Pueblo De Jemez, 119 F. Supp. 429 (D. N.Mex. 1954).
    27. Id. at 432.
    28. Arizona v. Attaki, No. 4098, Ariz. Super. Ct. Maricopi County,
    July 26, i960.
    288
    NOTES: INDIANS, Chapter 3
    1. Memo From Robert Burnette, Chairman, Rosebud Sioux Tribal
    Council, to the House Subcommittee on Indian Affairs, Mar. 19,
    I959>
    2. “Present Relations of the Federal Government to the American
    Indian,” House Comm, on Int. and Insular Affairs (Comm. Print
    No. 38, 1959) pp. 8-9.
    3. Harrison v. Leveen, 196 P. 2d 456 (Ariz. 1948); Trujillo v. Garley,
    D. Ct. (N. Mex. 1948) (unreported).
    3a. Montoya, v. Bolack, Civ. No. 85725, N. Mex. 2d Judicial Dist.
    Bernalillo County (Dec. 23, i960).
    4. Aliens. Merrell, 305 P. 2d 490 (Utah 1956).
    5. Id. at 495.
    6. 2 Race Rel. L. Rep. 778 (1957).
    7. 358 U.S. 217 (1959), reversing 319 P. 2d 998 (Ariz. 1958).
    8. Opinions of the Atty. Gen. of Arizona (unpublished 1959).
    9. 5 Cong. Qtrly. 79 (i960).
    10. Government Relations to Indians, op. cit. supra, note 2.
    11. 2 Stat. 139, 143.
    12. Act of Mar. 3, 1819, 3 Stat. 516, 25 U.S.C. sec. 271 (1958).
    13. Act of June 7, 1897, ch. 3, sec. 1, 30 Stat. 79; Act of Mar. 2, 1917,
    39 Stat. 988, 25 U.S.C. sec. 278 (1958).
    14. Blauch, Educational Services for Indians 34, 35 (1939).
    15. Act of July 31, 1882, 22 Stat. 181, 25 U.S.C. sec. 276 (1958).
    16. Act of June 4, 1953, 67 Stat. 41, amended May 16, 1957, 71 Stat. 29,
    25 U.S.C. sec. 293a (1958).
    17. Meriam, The Problems of Indian Administration (1928).
    18. Commission on the Rights, Liberties, and Responsibilities of the
    American Indian, A Program for Indian Citizens, A Summary Report,
    30 (1961).
    19. U.S. Bureau of Indian Affairs, Today’s Dropouts, Tomorrow’s
    Problems (1959). Less than 40 percent of the Indian youth who
    enter high school stay to graduate. This is sharply contrasted to a
    national rate where 60 percent of all American youths now graduate
    from high schools. Ibid.
    20. Baerreis, The Indian in Modern America 18 (1956) (Beatty,
    “Twenty Years of Indian Education”).
    21. Act of Mar. 3, 1893, 27 Stat. 628, 635, Act of July 13, 1892, 27 Stat.
    143, 25 U.S.C. secs. 283, 284 (1958). For discussion of statutes
    and regulations relating to compulsory education, see Solicitor of the
    Department of Interior, Federal Indian Law 277 (1958).
    289
    Notes: Indians, Chapter 3—Continued
    22. As a practical matter, the Bureau must rely heavily upon the States
    for enforcement of compulsory attendance regulations. Accordingly,
    in 1946 Congress provided in the act of August 9, 1946, now 60 Stat.
    962, 25 U.S.C. sec. 231 (1958), that the Secretary of Interior shall
    permit State employees to enter upon reservations for the purpose of
    enforcing penalties of State compulsory school attendance laws provided
    that the tribal government has adopted a resolution consenting
    to such jurisdiction.
    23. Solicitor of the Department of Interior, op. cit. supra, note 21, at 30.
    24. Report of the U.S. Commission on Civil Rights 1959 at 315.
    25. Newsletter 35, Association of American Indian Affairs, Inc., Feb.
    i960. The correspondence from Paul L. Fickinger, Area Director,
    said in part: * 4
    We are conscious of the fact that some communities in Mississippi
    will not accept the Mississippi Choctaw Indians in their schools.
    Developments in the past several years, however, have complicated „ *
    those efforts as you are personally well aware. It was this very
    situation that caused us several years ago to institute a so-called
    crash program of developing our own schools in the various Indian
    communities of the Reservation. . . .
    26. Letter From John A. Carver, Jr., Assistant Secretary of the Interior,
    to the Commission, June 9, 1961.
    27. Miss. Code, Sec. 6632 (1942 ed. ann.).
    28. Del. Laws, ch. 75, art. 1, sec. 2631 (1936).
    29. Letter From George R. Miller, Jr., State Superintendent, Department
    of Public Instruction, Delaware, to the Commission, May 15,
    1961.
    30. So. School News, October i960, p. 9.
    31. So. School News, November i960, p. 2.
    32. Durham Morning Herald, June 21, 1961, p. iA.
    33. Hearings in Los Angeles and San Francisco before the U.S. Commission
    on Civil Rights 360 (i960).
    34. Act of Aug. 8, 1958, 72 Stat. 545, 18 U.S.C. sec. 1162 (1958).
    35. A Program for Indian Citizens, op. cit. supra, note 18, at 24.
    36. 25 C.F.R. sec. 11.9 (revoked May 16, 1961). > 5
    37. According to William B. Benge, Chief, Branch of Law and Order,
    U.S. Bureau of Indian Affairs, “Law and Order on Indian Reservations,”
    20 Federal Bar Journal 227 (i960): t >
    ... As life in this society of ours daily becomes more complex,
    and as the need for community services by the Indian people rises,
    the effectiveness and efficiency of the Indian courts will more
    and more be drawn into focus . . . the inadequacy of the facilities
    and services and resources available to the Indian courts is
    290
    Notes: Indians, Chapter 3—Continued
    becoming increasingly apparent. For example, in the area of
    juvenile delinquency, most Indian courts do not have available
    to them the services of State institutions or the services of professional
    people to assist in the treatment and rehabilitation of
    Indian juveniles. In this situation about all an Indian court can
    do is to counsel with the juvenile and either send him home or
    place him on probation. Incarceration as a form of punishment
    for a juvenile is not an answer, and the courts have recognized
    this. It seems axiomatic that the effectiveness of a court is related
    directly to the resources available to it in the treatment of offenders
    with which it must deal. . . .
    38. Staff interview.
    39. Staff interview.
    40. Staff interview.
    41. Confidential letter on file at the Commission.
    42. Commission field notes.
    43. Commission field notes.
    44. Farber, Indians, Law Enforcement and Local Government 68, 69
    (1957)-
    45. Commission field notes.
    46. Commission field notes.
    47. Under a prior statute (39 Stat. 865, December 1916) the State of
    Nebraska was given authority to tax Indian lands belonging to members
    of the Winnebago and Omaha tribes for “local, school district,
    road district, county and State” purposes. It is reported that Thurston
    County, which includes the Omaha and Winnebago Reservations,
    collects as much as $53,000 annually from taxes on Indian
    lands.
    48. Act of Aug. 14, 1935,49 Stat. 620.
    49. Memo Solicitor Department of Interior, Apr. 22, 1936.
    50. On Mar. 21, 1952, Arizona established (by ch. 83 of the Laws of
    1952) a plan of aid to the permanently and totally disabled under
    the social security program, providing “that no assistance shall be
    payable under such plan to any person of Indian blood while living
    on a Federal Indian reservation.” The Federal Security Administrator
    refused to approve the plan, and the State brought suit
    against the United States in the U.S. District Court for the District
    of Columbia, where it was dismissed. An appeal to the U.S. Court
    of Appeals was denied May 13, 1954 (No. 11839). Since then
    Arizona has made no effort to establish aid for the totally disabled.
    Letter From John A. Carver, Jr., supra, note 26.
    51. On Dec. 17, 1954, the Arizona State Welfare Board reversed the
    denial by the Graham County Welfare director of general welfare
    291
    Notes: Indians, Chapter 3—Continued
    assistance to a reservation Indian and unanimously approved a grant
    to a San Carlos Apache living at Bylos, on the reservation. Letter
    From John A. Carver, Jr., supra, note 26.
    52. S.D. Code Title 50 (1939).
    53. Commission field notes.
    54. Acosta v. County of San Diego, 272 P. 2d 92 (Cal. 1954).
    292
    SELECTED BIBLIOGRAPHY, Part VIII
    7 American State Papers (Indian Affairs, class II, Vol. i), Gales and
    Seaton, 1789-1815.
    Annals of the American Academy of Political and Social Science,
    American Indians and American Life, American Academy of Political
    and Social Science, 1957.
    BAERREIS, The Indian in Modern America, State Historical Society of
    Wisconsin, 1956.
    BLAUCH, Educational Services for Indians, U.S. Government Printing
    Office, 1939.
    COHEN, Handbook of Federal Indian Law, U.S. Government Printing
    Office, 1945.
    Commission on the Rights, Liberties, and Responsibilities of the American
    Indian, A Program for Indian Citizens, A Summary Report, 1961.
    “Correspondence of Andrew Jackson,” ed. John S. Bassett, vol. 2, Carnegie
    Institution of Washington 1926-35.
    DE TOCQUEVILLE, Democracy in America, Oxford Press, 1947.
    FARBER, Law Enforcement and Local Government, South Dakota
    University, Government Research Bureau, 1957.
    FEY and McNICKLE, Indians and Other Americans, Harper and
    Bros., 1959.
    HAAS, “Legal Aspects of Indian Affairs from 1887 to 1957,” 311 The
    Annals of the American Academy of Political and Social Science 13,
    The American Academy of Political and Social Science, 1*957
    House Committee on Interior and Insular Affairs, Present Relations of
    the Federal Government to the American Indian, Committee Print
    38, U.S. Government Printing Office, 1957.
    “Land Transactions,” Senate Committee Print, 85th Cong., 2d Sess.,
    15, 18, U.S. Government Printing Office, 1958.
    LINDLEY, Why Indians Need Land, Christian Century, 1957.
    MERIAM, The Problems of Indian Administration, Johns Hopkins
    University Press, 1928.
    U.S. Bureau of Indian Affairs, Report to the Secretary of the Interior
    by the Task Force on Indian Affairs, 1961.
    U.S. Bureau of Indian Affairs, Commissioner’s Annual Report, 1872.
    U.S. Bureau of Indian Affairs, Today’s Dropouts, Tomorrow’s Problems,
    T959-
    U.S. Department of Interior, Federal Indian Law, U.S. Government
    Printing Office, 1958.
    U.S. Department of Interior, United States Indian Population and Land,
    i960.
    599614—61----20 293
    LIST OF CASES CITED, Part VIII
    Page
    Acosta v. San Diego County, 272 P. 2d 92 (Cal. 1954)...................... 287, 292
    Allen v. Merrell, 305 P. 2d 490 (Utah 1956)........................................ 289
    Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)............ 121, 285, 287
    Ex Parte Crow Dog, 109 U.S. 556 (1883).............................................. 126
    Harrison v. Leveen, 196 P. 2d 456 (Ariz. 1948)................................ 287, 289
    Herndon v. Lowry, 301 U.S. 242 (1937)................................................ 288
    Johnson and Graham’s Lessee v. M'Intosh, 21 U.S. (8 Wheat.) 543
    (1823)................................................................................................... 117
    Mapp v. Ohio, 367 U.S. 421 1961)........................................................ 288
    Montoya v. Bolack, No. 85725, N.Mex. 2d Judicial Dist. Bernalillo
    County (i960).................................................................................... 289
    Near v. Minnesota, 283 U.S. 697(1931)................................................ 288
    Porter v. Hall, 271 Pae. 411 (Ariz. 1928)......................................... 129, 287
    Powell v. Alabama, 287 U.S. 45 (1932)................................................. 288
    State of Arizona v. Mary Attaki, No. 4098, Ariz. Sup. Ct. Maricopa
    County, July 26, i960........................................................................ 288
    Talton v. Mayes, 163 U.S. 376 (1896)...................................... 126, 131, 132
    Toledo et al. v. Pueblo de J erne z, 119 F. Supp. 429 (D.N.Mex. 1954).. 288
    Trujillo v. Garley (D.N.Mex. 1948 unreported).................................. 289
    U.S. v. Kagama, 118 U.S. 375 (1886)................................................... 287
    U.S. v. Nice, 241 U.S. 591 (1916)......................................................... 125
    Williams v. Lee 319 P. 2d 998 (Ari. 1958), red'd 358 U.S. 217 (1959). 137
    Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)............................ 120, 285
    294
    Part IX—THE NEED FOR BROADER ACTION
    NOTES
    i. State of the Union Message. 107 Cong. Rec. 1360, 1362 (daily
    ed. Jan. 30, 1961).
    2. See pt. Ill, ch. 4.
    3. See pt. V, ch. 5. See generally pt. V, chs. 3, 4, 6; Detroit Hearings
    36; California Hearings 639.
    4. See pt. IV, ch. 8; pt. V, chs. 1, 3, 4, 5; Ginzberg, The Negro Potential
    92-97 (1956); Detroit Hearings 36, 90, 121-22.
    5. See pt. IV, ch. 7, supra; see also Detroit Hearings 36; California
    Hearings 449-50.
    6. See pt. IV, ch. 7, supra; see also Detroit Hearings 137-38.
    7. California Hearings 349. See also id. at 25, 261, 278-81, 283-84,
    335-43, 423, 7O2-7O3; Detroit Hearings 36, 50, 58-59, 98, 114-
    15, I3i-
    8. See pt. VII, ch. 2, supra.
    9. Detroit Hearings 58.
    10. See pt. II, Recommendation 5.
    11. See pt. IV, Recommendation 12.
    12. See pt. V, Recommendation 2.
    12a. See pt. VI, Recommendation 7.
    13. The Health Department of New York City, for example, announced
    that beginning January 1961, identification of “color” and “race”
    would be dropped from birth certificates in that city, but for needed
    statistical purposes, this information would be recorded on the
    back of corresponding documents in the Department’s confidential
    medical file. N.Y. Times, Dec. 27, i960, p. 1.
    14. See pt. II, Recommendations 1, 2, 3,4; pt. IV, Recommendation 1;
    pt. V, Recommendation 9; pt. VII, Recommendation 1.
    15. See pt. IV, Recommendations 3, 7; pt .V, Recommendation 1.
    16. Remarks of the President at meeting of President’s Committee on
    Equal Employment Opportunity. White House Press Release,
    Apr. 11, 1961.
    17. See pt. IV, Recommendations 2, 9, 11; pt. V, Recommendation 8.
    18. See pt. IV, Recommendations 4,1 o.
    19. See pt. V, Recommendations 6, 7.
    20. See pt. V, Recommendations 4, 5.
    21. See pt. VI, Recommendation 2(d).
    22. See pt. IV, Recommendation 8; pt. V, Recommendations 2, 3; pt.
    VI, Recommendations 1,2.
    295
    REGULAR MEMBERS OF THE COMMISSION STAFF DURING
    THE DEVELOPMENT OF THIS REPORT, 1961
    Berl I. Bern ha rd , Staff Director
    DIVISION OF LAWS, PLANS AND RESEARCH
    David B. Isbell, Director
    John W. Roxborough II, Deputy
    Mrs. Marguerite G. Hepburn
    Mrs. Treola J. Grooms
    Mrs. Garland W. O’Donnell
    Voting Section
    Charles Ed. Clark (former Chief)
    Edgar N. Brown, Acting Chief
    Peter J. Ciano
    Gracie M. Williams
    Mrs. Patricia E. Brown
    Education Section
    Dr. Elizabeth R. Cole, Chief
    Dr. A. Luini del Russo
    Mrs. Ruby Grant Martin
    Mrs. Willy R. Davis
    Mrs. Mabel R. Johnson
    Employment Section
    Mrs. Francine S. Temko, Chief
    Eli Jarmel
    David R. Richards
    Orlando S. Hobbs
    Antoinette R. Curro
    Mrs. Carolyn E. Pleasant
    Housing Section
    Kermit G. Bailer (former Chief)
    Martin E. Sloane, Acting Chief
    Julius J. Hollis
    Mrs. Naomi S. Tinsley
    Patricia C. Dorden
    Administration of Justice Section
    Dr. Arnold S. Trebach, Chief
    James W. Davis, Jr.
    Richard N. Wolf
    Mrs. Freida M. Vaughn
    Sylvia Battle
    Special Projects Section
    Philip A. Camponeschi, Chief
    Mrs. Evelyn M. Idelson
    Mrs. Glenda G. Sloane
    Mrs. Klaire V. Adkins
    Mrs. Alice B. Briscoe
    296
    DIVISION OF COMPLAINTS, INVESTIGATION AND SURVEY
    A. H. Rosenfeld, Director
    Robert H. Amidon
    Ward E. Bonnell
    William H. Downs
    Burton J. Goodyear
    Lysbeth A. Santon
    Norman E. Simpson
    Ezekiel G. Smith
    Raymond H. Miller
    Mrs. Mary Ellen Smith
    DIVISION FOR STATE ADVISORY COMMITTEES
    Dr. Cornelius P. Cotter, Director
    Robert A. Falise, Deputy Peter M. Sussman, Deputy
    Mrs. Pauline B. Roberts Mrs. Phoebe Nelson
    Mrs. Grace B. Sieber
    OFFICE OF BUSINESS ADMINISTRATION
    Robert L. Nelson, Chief
    Mrs. Eleanor V. Taylor
    Mrs. Evelyn P. Fales
    Mrs. Marion H. Sparkes
    Mrs. Mabel E. Webber
    Mrs. Gwendoleyne M. Womack
    Mrs. Sandra B. Stanton
    John G. Birkle
    Mrs. Ruth Ford
    Mrs. June G. White
    Thomas N. White
    Odell W. Moorehead
    Charles M. Coates
    Lester Harris
    INFORMATION AND PUBLICATIONS OFFICE
    W. Otto McClarrin, Chief
    Mrs. Elisabeth I. F. Murphy Eleanor M. Walden
    OFFICE OF THE STAFF DIRECTOR
    Howard W. Rogerson
    Special Assistant
    William L. Taylor
    Special Assistant
    Mary H. Fitzsimmons
    Mrs. Gloria M. Brown
    Mrs. Natalie B. Proctor
    297
    CONSULTANTS
    Beaney, William M., Jr.
    Carr, Dr. Robert K.
    Dawson, Charles E.
    Dunau, Bernard
    Edley, Christopher
    Edwards, Dr. G. Franklin
    Foster, George Wm., Jr.
    Freedman, Monroe H.
    Garrity, Margaret M.
    Knox, Dr. Ellis O.
    Koonce, David F.
    Lane, Dorsey E.
    Matthews, Dr. Donald R.
    Mendelson, Dr. Wallace
    Mottolese, A. William
    Navasky, Victor S.
    Pfaff, Warren G.
    Scammon, Dr. Richard
    Schroeder, Dr. Oliver, Jr.
    Seidenberg, Dr. Jacob
    Smith, William A.
    Thomas, Mrs. Ann V.
    Tyler, Harold R., Jr.
    Westfeldt, Wallace O., Jr.
    298
    Biographical Index
    Book number: Page number
    A
    Abernathy, Rev. Ralph D.................................................................... 5:34
    Adams, Paul L...................................................................................... 4:126
    Alexander, Julian................................................................................... 5:93
    Almond, Governor J. Lindsay, Jr................................................ 2:55,2:67
    Anderson, Rev. Lewis L........................................................................ 5:9°
    Atlas, Francis Joseph......................................................... 1:51, 1-67, 1:96
    B
    Baker, Robert E. Lee............................................................................. 5:11
    Barnes, Theodore R............................................................................... 4:190
    Barnett, Governor Ross R.................................................................... 2:58
    Barol, Martin.......................................................................................... 5:181
    Bates, W. L............................................................................................ 5:38
    Baughman, J. Stanley............................................... 4:74, 4:75, 4:78, 4:178
    Beavers, George A., Jr............................................................................ 4:112
    Bell, Richard................................................................................... 1:62-1:63
    Boatman, Mrs. Pearlie Mae................................................................... 5:175
    Bocherding, Charles H.......................................................................... 4:68
    Brain, Dr. George B............................................................................... 2:220
    Branch, Horace V................................................................................... 5:38
    Brazier, Mrs. Hattie Bell......................................... 5:9, 5:10, 5:173, 5:174
    > Brazier, James............................................................. 5:9> 5:10> 5:1L 5: *73
    Brazier, James, Jr.................................................................................... 5:173
    Brimm, Orra.......................................................................................... 5:38
    > Brown, Albert.................................................... . .................................. 5:84
    Brown, Ernest L., Jr............................................................................. 3:107
    Brown, James Donald........................................................... 5:15,5:16
    Brown, Rev. Philip............................................................... 1:52, 1:53, 1:66
    Brownell, Attorney General Herbert.................................................... 5:60
    Brownstein, P. N...................................................... 4:70,4:71,4:72,4:175
    299
    Book number: Page number
    Bryce, Mrs. Mary K............................................................................... 1:
    Burns, Haydon........................................................................................ 5:37
    Burton, Dr. Henry................................................................................. 2:218
    C
    Caldwell, Leslie.....................
    Calhoun, Marcus B..............
    Callan, Arnold.......................
    Camacho, Jose.....................
    Carey, Archibald J., Jr.........
    Carmichael, Dr. Omer.........
    Church, Senator Frank.........
    Clark, Senator Joseph S ..
    Clements, Mrs. Winnice J. P
    Clinchy, Dr. Ross....................
    Cocke, Earl, Sr.......................
    Cole, Albert M.......................
    Coleman, James P................
    Coleman, Richard G............
    Connor, Eugene......................
    Conway, Jack T ..................
    Crawford, Joseph Walton . .
    Crouch, Quitman...................
    Crymes, Theotis ................
    .................................... 5:I4
    .................................... 5:I72
    ...... 4=i36-4:i37 .................................... 1:215
    .................................... 3:I77
    .................................... 2:223
    .................................... 5:94
    1:120-1:121,3:167, 4:171
    1:25, 1:60, 1:61, 1:62, 1:222
    ................................... 3:205
    ....... 4:49,4:50,4:51,4:168
    ................................... 4;83
    ............................. 1:3^5:42
    ......................... 4:11 o, 4:186
    ................. 5:30,5:3^5:35
    ........... 4:162,4:180,4:188
    ............................ i:59, 1:225
    ........................... 1:68,1:225
    5:22,5:23,5:181
    D
    Dale, Judge Sebe..................................................................................... 5:42
    Darling, H. Daniel................................................................................. 3:196
    Davern, Lawrence................................................................................. 4 ’•113
    Davis, Brigadier General Benjamin O., Sr ......................................... 3:46
    Davis, Charles S ................................................................................... 2:171
    Dent, Dr. A. W............................................................. 2:134,2:136-2:137
    Dilworth, Richardson.................................................................. 4:155, 5:83
    Douglas, Senator Paul H...................................................................... 1:246
    Dumas, Larry.......................................................................................... 2:68
    E
    Eisenhower, President Dwight D
    Ellender, Senator Allen J
    Ellis, Fendall R............
    Estes, Rice......................
    3:I4,3:I5,3:21,3:57,3:95,
    4:21,4:53,4:54
    .................................... 2:231
    ................ 2:55,2:90-2:91
    ....................... 2:139-2:140
    300
    Fahy, Judge Charles............................................................................. 3:47
    Falls, Dr. Arthur..........................................................................4:193, 4:194
    Falls, Mrs. Arthur................................................................................. 4:194
    Faubus, Governor Orval E........................................................... 2:44, 2:80
    Fedder, Mrs. Morris............................................................................. 5:23
    Fields, Edward...................................................................................... 5:3°
    Fischer, Dr. John H...................................................................... 2:189,2:223
    Flickinger, Paul L................................................................................... 5:290
    Fordham, Jefferson B................................ 4:88, 4:181
    Foreman, Rev. Lloyd A.......................... 2:42
    Forrest, Erin............................................................................................ 5;I44
    Fox, Miss Mary Ethel......................... 1:56-1:57, 1:63, 1:64, 1:65, 1:225
    Francis, Charles J....................... . .............................................. 4:168, 4:170
    G
    Gabrielle, Mrs. James.......................
    Garrett, John S..................................
    Garrity, Miss Margaret.....................
    Gasque, Q. D......................................
    Gidney, Ray M..................................
    Gillem, Lt. General Alvan G.............
    Glinski, Raymond...............................
    Goldberg, Secretary of Labor Arthur
    Goldsby, Robert Lee...........................
    Goodwin, Mrs. Eloise.......................
    Goshay, Marvin..................................
    Graves, Joseph B...............................
    Green, Dr. Donald Ross....................
    Green, Mrs. Mary Reese..................
    Gremillion, Jack P. F.......................
    Gross, Calvin F..................................
    Gubow, Lawrence..............................
    2:91, 2:94-2:95, 2:96,
    2:42
    1:221
    3:205
    2:213
    .... 4:42, 4:43, 4:167
    ........................ 3:46
    ........................... 5:i4
    ............... 3:76, 3:215
    .................5:4L 5:91
    ........................... 5 = 21
    .... 5:10,5:11,5:174
    ........................... 4:57
    .... 2:95-2:96,2:217
    ............... 2:60, 2:217
    i:39> 1:40, i:44> i;2i9
    ........................... 2:117
    ....... 4:3,4:125,4:126
    Haas, John H................................................................... 4:95,4:183,4:203
    Hackman, William................................................................................. 4:62
    Hall, Mrs. Annie Pearl.......................................................................... 5:7
    Hall, Bobby............................................................................... 5:6, 5:8,5 = 45
    Hall, Dr. Joe.......................................................................................... 2:41
    Hamborsky, Dwight K.......................................................... 4:62, 4:96-4:97
    Hanbury, B. Blanton............................................................................. 2:214
    Hannah, Commissioner John A................................................... 5:19,5:20
    Hansen, Dr. Carl F............................................................................... 2:223
    Hardy, Neal J.4:63,4:64,4:65,4:66,4:67,4:142,4:171,4:183
    Hart, Herbert W..................................................................................... 5:I4
    Book number: Page number
    .... 3:167
    2:59? 5:87
    .... 4:I95
    .... 4:10
    .... 2:48
    .... 1:274
    Hart, Senator Philip..
    Hartsfield, William B
    Hartwig, O. J............
    Haynes, Dr. George..
    Hazlett, James A.......
    Henry, Dr. Aaron E..
    Herley, Mark K.......................................................................... 4:112, 4:114
    Herman, C. J................................................................................. 4:55>4:5®
    Herman, Justin........................................................................................ 4:92
    Hesburgh, Commissioner Theodore M..................... 4:1, 4:183, 5:165
    Higginbotham, Fred.............. . . .';....................... 1:226
    Hill, Senator Lister................................................................................. 2:231
    Holmes, Hamilton E......................... ................ 2:168, 2:169, 2:170, 2:233
    Hoover, President Herbert.................................................................... 4:11
    Hoover, J. Edgar.. 5:86,5:180,5:212,5:213,5:215,5:220,5:239,5:240
    Howard, Asbury...................................................................................... 5:37
    Howard, Asbury, Jr......................................................... 5:37? 5:l88, 5:189
    Humphrey, Senator Hubert H............................................................. 3:167
    Hunter, Charlayne A......................................... 2:168, 2:169, 2:170, 2:233
    Hutchins, Eugene.........
    Hutchins, Mrs. Eugene
    5:23
    5:23
    J
    Jackson, Miss Dorothy..................
    Jarvis, Dr. Ellis A.........................
    Javits, Senator Jacob....................
    Jenkins, Herbert.............................
    Jernigan, J. H...............................
    Jemigan, Mrs. Ollie......................
    Johnson, Commissioner George M
    Johnson, Vice President Lyndon B
    Johnston, Senator Olin D..............
    Jones, Frank E................................
    Jones, Mrs. M................................
    Jones, Robert..................................
    Jones, Robert L..............................
    .................... I--54
    .................... 2:104
    ..................... 3:180
    .................... 5 = 87
    ....................... 5 = 7
    .................... 5*-7
    .................... 4=183
    3:76, 3:110, 3:191
    ............. 2:58-2:59
    ................ 5 = 7? 5:8
    .................... 5:190
    .................... 5:190
    .................... 4:129
    K
    Kasper, John................................................................................... 5:34-5:35
    Keen, Emil.............................................................................................. 4:77
    Keith, Damon J..................................................................................... 4:181
    Kelley, William............................................. 4:87, 4:88
    Kendrick, H. S....................................................................................... 5:i8i
    302
    Kennedy, President John F............................................. 1:10, 1:11, 1:164,
    1:325, 2:1,2:122,3:5,3:16,3:17,3:19,3:21,3:71,3:76,
    3:77, 3:80, 3:95, 3:165, 4:6, 4:26, 4:82, 4:139, 4:155,
    4:156, 4:161, 4:183, 4:203, 5:32, 5:87, 5:161, 5:164
    Kennedy, Attorney General Robert F......................................... 3:178, 5:44
    Kennedy, Stephen P.................................................................. 5:86
    Kilpatrick, James J............................................................................. 1:4-1:5
    Kimp, Henry
    Kirk, Joe....
    Kramer, Ferd
    1=59
    1:62
    4:104
    LaFleur, James...........................
    Lamberth, Edwin.......................
    Landrum, Congressman Phil M
    Lassiter, Mrs. Louise..................
    Laurenti, Dr. Luigi.....................
    Lawrence, Dr. Paul F..................
    Lawton, Frederick J....................
    Levitt, William...........................
    Lewis, Frederic.............................
    Lewis, Otho T.............................
    Lindbergh, Robert.....................
    Linton, Mrs. Lannie..................
    Longarzo, Peter J.......................
    Lucky, Mrs. Mae.........................
    Luedders, William R..................
    Lynch, John William..................
    M
    ................. 5:i4
    ............................ 2:213
    ............................ 3:219
    ............................ i:34
    4:52,4:53> 4:169> 4:203
    ............................ 2:219
    ............... 3:I73, 3:I74
    ............................ 4:3!
    ..................... 1:52, 1:66
    ............................ 1:52
    ............................ 5:35
    ....... ............ 1:52,1:225
    ........ ............ 4:68
    ...........••••• i:53, I;22I
    ..... 4:123,4:124,4:190
    ..........••••........... 5:46
    Mann, Floyd.............................
    Martin, William McChesney, Jr
    Mason, Norman P....................
    Mathews, Z. T...........................
    McGuire, Marie C....................
    McMurray, Joseph P................
    Meany, George.........................
    Melville, John G.......................
    Meredith, James H..................
    Milgram, Morris.......................
    Miller, Dr. George R., Jr...........
    Miller, Loren.............................
    Mitchell, U. Charles................
    Mitchell, William P..................
    ....................................... 5=l86
    4:45, 4:46, 4:49, 4:167, 4:169
    .............................. 4.85,4:118
    .............................. 5:II»5:I2
    ... 4:113,4:114,4:115,4:186
    ....... 4:36,4:39,4:164,4:169
    ............. 3:130,3:131,3:212
    ........................................ 4:u5
    ....................................... 2:233
    ............................ ■:......... 4:I92
    ....................................... 2:46
    ....................................... 4:i95
    ........................ <............ i:54
    .............. , ... . • , . 1^5, i:2l6
    303
    Book number: Page number
    Morgan, Edward............................................................................. 1:61-1:62
    Morin, Mrs. Mae.................................................................................. 1:53
    Morrow, James........................................................................................ 5:2 2
    Mosk, Stanley.................................................................................... 4:1 > 4 ’• 92
    Muthleb, Joynal............................................................................. 5:20> 5:24
    N
    Nash, Geraldine...................................................................................... 5:i75
    Nash, Theodore .. ................................................................................... 5: T75
    Nettles, William.......................................................................... 5:191 > 5:19 2
    Newcomb, Mrs. Josephine L.............................................................. 2:234
    Nixon, Vice President Richard M........................... 3: *5, 3*57, 3:^3, 3‘-83
    Northwood, L. K................................................................................... 4:107
    O
    Oliver, Rev. G. Herbert........................................................................ 5:I9!
    Olsen, Samuel ........................................................................................ 5:I4
    O’Meara, John J............................................................. 4 *123,4 •129,4 *13°
    P
    Padgett, Louis H................................................................................... 1:222
    Parker, Dr. Jack F................................................................................. 2:223
    Parker, Mack Charles................................................................... 5:41>5t42
    Parkllan, Dr. Arthur G................. 2:225
    Patterson, Joe T..................................................................................... i:io 3
    Patterson, Governor John........................................ 1 • 25, 1:216, 2:58, 5:31
    Payne, Herbert G................................................................................... 5:I77
    Perez, Leander............................................................................... 1: 63, 1 • ^5
    Perkins, Jeffrey....................................................................................... 5:21
    Phillips, E.L............................................................................................ 2:48
    Poteat, Manley....................................................................................... 5:6
    Poteat, Walter........................................................................................ 5:®
    Porter, C. A............................................................................................ 5:3^
    Powell, Congressman Adam Clayton................................................... 3:218
    Presley, Mrs. Eliza................................................................................. I:52
    Purnell, J. Stanley................................................................................. 4:99
    Q
    Quinn, Frank.......................................................................................... 4:92
    R
    Rainach, W. M................................................................. 1:44,1:46,1:221
    Raines, James Griggs................................................................... 5:12> 5:174
    304
    Randolph, A. Philip............................................................................. 3:216
    Randolph, Senator Jennings................................................................. 3:167
    Rankin, Commissioner Robert S......................................................... 1:63
    Ravitz, Mel J............................................................................... 4:97,4:124
    Ray, Jesse............................................................................. 5:18,5:19,5:24
    Reeves, Frank........................................................................................ 2:122
    Reid, William.......................................................................................... 4:115
    Reuther, Walter...................................................................................... 5:162
    Reynolds, H. W..................................................................................... 4:90
    Reynolds, Luther.................................................................................... 5:38
    Riecke, Louis G...................................................................................... 5:88
    Roosevelt, President Franklin D...........
    Rusk, Secretary of State Dean............
    Russell, Senator Richard B..................
    Ruston, E. W.........................................
    1:10,3:7,3:10,3:16,3:17,3:170
    ............................................. 4 = 2
    ............................................. 3:U3
    ............................................. 2:57
    S
    Salisbury, Harrison................................................................................. 5:30
    Sand, Mrs. N. H............................................................................. 2:41, 2:42
    Sawyer, Henry W., HI........................................................................... 5:83
    Saxon, H. Pierce.................................................................................... 5:177
    Schreiber, Dr. Daniel............................................................................ 2:127
    Scott, Rev. John Henry................................................................. 1:50, 1:51
    Screws, Claude M......................................................... 5:6, 5:9, 5:45, 5:46
    Sharp, James............................................................................................ 1:51
    Shaw, W. M.......................................................................... 1:44, 1146, 1:5s
    Shepard, Dr. Samuel, Jr........................................................... 2:125,2:126
    Shishkin, Boris........................................................................................ 3:215
    Shuttlesworth, Rev. Fred L.................................................................. 5:35
    Siegenthaler, John................................................................................... 5:31
    Silver, Charles H..................................................................................... 2:220
    Simpkins, Dr. Cuthbert 0.................................................................... 1:53
    Slayton, William L............................................................4:101,4:181,4:184
    Smith, Eugene........................................................................................ 5:88
    Smith, Howard K................................................................................. 5:30
    Smith, Maceo........................................................................................ 4:96
    Smith, Dr. Rex M................................................................................. 2:223
    Smith, Dr. W. Edward.......................................................................... 2:215
    Spears, Dr. Harold................................................................................. 2:218
    Staats, Judge Redmond C., Jr............................................................... 2:218
    Stanley, Marvin....................................................................................... 5:i85
    Steel, Thaddeus....................................................................................... 5:13
    Storey, Commissioner Robert G .... 1:60, 1:62, 1:139-1:140, 1:219, 5:210
    Sullivan, Lester B............................................................ 5:32, 5:186, 5:187
    305
    Book number: Page number
    Swainson, Governor John B.................................................................. 4:126
    Sweet, G. B............................................................................................. 4:175
    Taft, Senator Robert A............................................................. 3:218, 3:219
    Taylor, Mrs. Elizabeth.......................................................................... 1:65
    Taylor, Leo............................................................................................. 1:66
    Teal, John Lester.................. ................................................................ 5:177
    Theobald, Dr. John J............................................................................ 2:220
    Tiffany, Gordon M............................................................................... 1:219
    Truman, President Harry S.....................................................................1:228,
    3:12,3:13,3:14,3:21,3:46,3:56,3:76,3:95,4:19
    Tulane, Paul.......................................................................................... 2:234
    Turner, Mrs. Mariah...................................................................... 1:59s 1:66
    Turner, Tom 1=59
    U
    Udall, Secretary of Interior Stewart L............................................. 5:124
    V
    Vandiver, Governor S. Ernest....................................................... 2:59-2:60
    Venable, Howard P.................................................................... 4:135> 4: J3^
    Venable, Katie..................................... 4:i35j 4:i3^
    Vivian, Rev. Gordy T............................................................................ 5:i^2
    Voelker, Frank....................................................................................... 1:4°
    W
    Wade, Jewel........................................... I:54
    Wafer, Henry.......................................................................................... 1:60
    Wall, J. B., Jr.......................................................................................... 2:215
    Waller, William......................................................................................... 5:93
    Ward, Horace.............................. 2:168
    Ward, Miss Katherine.............................................................................. 1:51
    Ward, Willis....... . ............................................................... 5:27,5:83,5:210
    Watson, Charles R................................................................................ 4:9^
    Weaver, Lamar....................................................................................... 5:35
    Weaver, Robert C.................................................... 4:20,4:54,4:57,4:58,
    4:82, 4:158, 4:159, 4:160, 4:169, 4:180, 4:203, 4:204
    Wells, Charles L......................................... 2:218
    White, Samuel................ .......::........................................ 3:207
    Whitney, Rev. S. Leon........................................................................ 5:17®
    306
    Whitton, Rex M...........................
    Wilder, Mrs. Estelle......................
    Wiley, Mr. and Mrs. Rowan.........
    Williams, Elmo.............................
    Williams, Eugene...........................
    Williams, Senator Harrison A., Jr
    Williams, Mrs. Hester..................
    Williams, J. D..............................
    Williams, Congressman John Bell.
    Williamson, J. Gaston....................
    Willingham, James P....................
    Wilson, Orlando............................
    Wilson, President Woodrow.........
    Wolfbein, Seymour L....................
    Womack, Charles A.......................
    Wood, Congressman Reuben.......
    Wren, W. R..................................
    ............................................. 4:183
    ........................... 1:55, 1:60, 1:67
    ................................ 4:134.4:135
    ............................................. i:59
    ..................................... 1:57-1:58
    ............................................ 3:i67
    .................................. 1:57-1:58
    ............................................ 2:171
    ............................................ 5:41
    .................................... 2:44,2:217
    ............................................ 5:8
    ...................................... 5:82,5:83
    ............................................ 2:79
    3:165, 3:166, 3:196, 3:198, 3:202
    ............................................ 2:142
    ............................................ 3:218
    ............................................ 5:176
    Zimmerman, Julian
    U.S. GOVERNMENT PRINTING l*O»F6F| ICE
    z
    4:171
    3°7
    DATE DUE
    JAN 0 <11991
    Dtv iV) '>