Oregon black exclusion laws

A 1903 map of Oregon's territory

Early white settlers in the Oregon Country often held both anti-slavery and anti-black beliefs, and many came from states, such as Missouri, which had some version of exclusion laws.[2][4] White settlers believed banning slavery would eliminate political controversy, but feared that settlements of freed slaves would compete for power with white people. One early migrant wrote that Oregon pioneers "hated slavery, but a much larger number of them hated free negroes worse even than slaves."[4]

In 1843, the Provisional Government of Oregon established a set of organic laws, including a ban on slavery: "There shall be neither slavery nor involuntary servitude in the said territory otherwise than in the punishment of crimes whereof the party shall have been duly convicted."[2][6] Enforcement of the law was left unclear.[7] After a vote on June 26, 1844, the first Black Exclusion law reiterated a ban on all slavery in Oregon territory, while also forcing black and mulatto settlers to leave Oregon territory within three years (two years for men), or else to be whipped "no more than 39 times." This section was amended in December 1844 to permit a free slave to be resold on the condition that the slave owner agree to remove them from the territory at the end of the contract, which was held with the provisional government.[2] In effect, this re-established slavery on a temporary basis for three years.[6] The law was repealed in 1845, having never been invoked.[6]

On September 21, 1849, the US territory established its second exclusion law,[5] declaring a ban on "any negro or mulatto to enter into, or reside" in Oregon unless already established there. At least four black people were punished under this law, including Jacob Vanderpool, a sailor, and three others who were eventually permitted to stay.[6]

An 1850 census showed fewer than 50 black residents in the state of Oregon,[3] including a mixed-race man from Pennsylvania, George Washington Bush, who was forced to move North of the Columbia River after the first exclusion Law was passed.[3] George Washington, another unrelated free man, was the founder of Centralia, Washington.[3]

On April 16, 1852, Robin Holmes, a black slave of Nathaniel Ford, brought a case to the territorial Supreme Court, charging that he and his family were being held by Ford illegally. Holmes v. Ford was heard by four judges, culminating in Judge George Henry Williams' June 1853 ruling that slavery was illegal in Oregon. Descendants of Holmes have since stated that Ford had encouraged the lawsuit as a means to bring an end to slavery in the state.[3]

On November 7, 1857, Oregon's delegates to the state Constitutional Convention submitted proposals to legalize slavery and to ban black people from the state, including a ban on signing contracts or owning land. The slavery amendment failed, but the exclusion law passed. Oregon was the only state admitted to the Union with such an exclusion law.[6] There are no records that this law was enforced, and the legislature voted down a proposed 1865 law that would authorize sheriffs to deport black residents in their counties.[6]

Peter Hardeman Burnett circa 1860

The Cockstock Incident was a major factor in the passage of the first black exclusion law.[5] It centered on a fight between a Wasco Native American man, Cockstock, and a free black man, James D. Saules, over ownership of a horse.[2] The argument escalated into a melee that killed three men, and led to rhetoric among white settlers that African-Americans could create an uprising among local Native American tribes against settlers.[5]

On June 24, 1844, within days of the Cockstock Incident, the Oregon Provisional Legislature suspended its rules to allow Peter Burnett to propose a bill "for the prevention of slavery" without reference to a committee. The bill was read twice and voted into law the following day. The bill contained methods of enforcement for the prevention of slavery, which had already been banned in the territory.[2] These laws included a three-year limit on all free black people, and required freed slaves to leave the state within two years, if male, and three years, if female. The initial law proposed "no more than 20" lashings by whip for slaves found in violation of the law, which was amended in December 1844.[2] A week after the law's passage, Burnett wrote in a personal letter that the bill was intended to "keep clear of that most troublesome class of population."[2]

Decades later, Burnett publicly described the Exclusion Law as intended to prevent disenfranchised black people from being exposed to politically empowered white people, which he wrote "reminds them of their inferiority," and suggested that their presence was "injurious to the dominant class itself, as such a degraded and practically defenseless condition offers so many temptations to tyrannical abuse."[2]

The law had an unknown impact on black people in the state, and no records suggest it was ever directly enforced.[1] However, its threatened enforcement against African-American settler George W. Bush led the Bush-Simmons party, which arrived shortly after the law's adoption, to cut a new spur of the Oregon Trail northward across the Columbia River into disputed, British-controlled territory, where they founded the first U.S. settlement on the Puget Sound in present-day Washington State.[8] [9] Concern over the potential applicability of the Exclusion Law (which was understood to forbid Black land ownership) to Washington lands prior to the creation of a separate Washington Territory later led Congress to pass a private law confirming Bush's title over his lands.[8][10][11]

In September 1849, the legislature passed another exclusion law, with a preamble arguing that "it would be highly dangerous to allow free negroes and mulattos to reside in the Territory or to intermix with the Indians, instilling in their minds feelings of hostility against the white race."[2] The 1849 law ordered any black people entering the territory to leave within 40 days.[5][4] It was applied in 1851 to Jacob Vanderpool, a West Indian who had migrated to Oregon City. A white resident of the city brought a case against Vanderpool, who was arrested and ordered to leave Oregon within 30 days.[5] The family of Abner Hunt Francis were ordered out of the state within 40 days, but were allowed to stay after a petition was signed by 225 citizens. The petition formed the basis of a failed coalition to amend the exclusion law to allow for good behavior bonds by black settlers. The Francis family moved to Canada in 1861.[5] A petition was also used in 1854 to prevent the deportation of Morris Thomas and Jane Snowden.[5]

Oregon's congressional delegate, Samuel Thurston, while seeking to limit federal land grants to white people, described the law to congress: "The negroes associate with the Indians and intermarry, and, if their free ingress is encouraged or allowed, there would a relationship spring up between them and the different tribes, and a mixed race would ensue inimical to the whites; and the Indians being led on by the negro who is better acquainted with the customs, language, and manners of the whites, than the Indian, these savages would become much more formidable than they otherwise would, and long and bloody wars would be the fruits of the commingling of the races."[4]

The law was repealed in 1854.[4]

Title page of the Oregon state constitution, 1857

In 1857, after Oregon voters had voted for statehood, they subsequently called for a constitutional convention.

The emergent constitution contained 185 sections, 172 of which were taken from from various other state constitutions, with the additions primarily being racial exclusion or finance related.[12] The document enshrined an Exclusion Law into Section 35 of the Bill of Rights within the Oregon State Constitution.[13] The article read as follows:

No free negro or mulatto not residing in this state at the time of the adoption of this constitution, shall come, reside or be within this state or hold any real estate, or make any contracts, or maintain any suit therein; and the legislative assembly shall provide by penal laws for the removal by public officers of all such negroes and mulattoes, and for their effectual exclusion from the state, and for the punishment of persons who shall bring them into the state, or employ or harbor them.[13]

John R. McBride, later a state senator, described the amendment: "It was largely an expression against any mingling of the white with any of the other races, and upon a theory that as we had yet no considerable representation of other races in our midst, we should do nothing to encourage their introduction. We were building a new state on virgin ground; its people believed it should encourage only the best elements to come to us, and discourage others."[14][15]

The question of slavery itself was put to a popular vote, with the public voting against slavery (by a vote of 7727 to 2645) but in favor of racial exclusion policies (by a vote of 8640 to 1081).[7][4] The final constitution barred "negroes, mulattos and Chinamen" from voting or owning land in the state.[7]

Oregon's racially discriminatory state constitutional amendment, Section 35, was legally invalidated after the Civil War by the ratification of the 14th Amendment to the federal Constitution in 1868. However, Section 35 remained formally on the books for another 58 years. In 1925, the Oregon legislature proposed the formal repeal of Section 35, adopted as House Joint Resolution 8 (1925). The measure was referred to Oregon voters as a 1926 ballot initiative which was approved with 62.5% in favor.[16][17]

Measure 14 in 2002, approved by a vote of 71–29, removed the racist language in the constitution.[18]

• T. W. Davenport: "Slavery Question in Oregon," Oregon Historical Quarterly Vol. 9.