The History of Institutional Racial Discrimination in New Orleans - Part 1

History of Institutional Segregation Based on Race

Since its establishment to the present date, Louisiana subjugated blacks and non-whites and sought to separate the races through custom, law, and society structure beginning with slavery. Additionally, the state has a history of ignoring federal law and mandates in the areas related to race relations. The subjugation and institutional discrimination of blacks in Louisiana and the South extends hundreds of years. Remedies began on a federal level but it is well known that Louisiana, among other states, circumvented the provisions by establishing state laws that created a social and racial caste system based on White supremacy.



Louisiana became a territory of the United States in 1803, approximately 100 years after its colonization by France; and, in 1804, Congress established the Territory of Orleans and its government.[1] St. Bernard Parish was created in 1807, but tracts of farmland were granted to individuals from the Canary Islands (known as Islenos) in 1778 while Louisiana was still under Spanish Rule.[2] The Canary Islands, a Spanish archipelago off the Moroccan coast, was a supply base for ships headed for the Spanish colonies in the West Indies.[3] Spain occupied Louisiana pursuant to a secret treaty following the Seven Years’ War in 1762.[4] French nobles and military officers intermarried with the Spanish in Louisiana, creating a new ethnicity known in Louisiana as “Creoles”; and today Creoles are individuals who trace their ancestry to these settlers including those with a blended African ancestry.[5]

Canary Island natives and the Islenos are Spanish speakers; however, members of this nationality are not considered to be a Hispanic minority in the United States. Rather, they are aligned with white Europeans because the islands belonged to Spain.[6] Hispanic-Americans include individuals from the Spanish-speaking countries of Latin America, primarily Mexico, Puerto Rico, Cuba, Santo Domingo, and Columbia, and not those from Europe or Iberia.[7] Since “Islenos” owned plantations in St. Bernard Parish, it is clear that they were considered “white” as opposed to non-white, with all of the legal rights and societal standing that “whiteness” provided. The history of the “Islenos” is an important caveat for a number of reasons:

1. Their involvement with and prosperity as a result of the slave trade had them in a position of authority and power in Louisiana as many of these plantation owners also served in the state legislature and senate[8]; and

2. They have not been subjected to the racial discrimination that has historically affected Hispanic groups or any minority in the United States.

Although Congress prohibited the importation of new slaves at the time Louisiana became a U.S. territory, slavery as an institution had not been outlawed; and despite the prohibition on importation, Louisiana continued to import slaves illegally from Cuba and Haiti.[9] By the 1840s, at least ten sugar plantations were established in St. Bernard in former Islenos settlements.[10] Ten years later, New Orleans was the largest slave-trading center in the South.[11] This is not to say that all slaves coming into New Orleans were illegally imported; rather, New Orleans was also an important hub for the domestic slave trade.[12]

Prior to becoming a state, Louisiana enacted the Code Noir, also known as the 1806 Black Code, which remained in force for nearly 60 years until Reconstruction.[13] These codes provided a legal framework for slavery – 40 sections of laws “prescribing the rules and conduct to be observed with respect to Negroes and other Slaves of this Territory” – and were built on the codes of 1724.” Slaves were considered property and could be sold, seized, and mortgaged; they owed obedience to their masters, were not free to travel, and had no ownership or seller’s rights.[14] Furthermore, since they were viewed as property, they had no right to judicial remedy, to be political participants, nor could they be parties or witnesses at a trial, or members of a jury.[15] The Codes controlled every aspect of the lives of slaves and free blacks. Essentially, their humanity disregarded, slaves were without constitutional rights; additionally, they had no right to enter into contracts, no freedom of speech, no rights of citizenship, and no marital rights (marriages of slaves were not legally recognized).[16] Free blacks had few rights provided they carried a certificate validating their freedom including: carrying weapons, being in charge of a plantation, and the right to trial by jury.[17] Additionally, residency was restricted as blacks were discouraged from living within cities and towns per local ordinances; the only way around the ordinances was to get a white employer to agree to assume responsibility for the employees’ conduct.[18]

Although free blacks may have had a few more rights than slaves, this is not the standard comparison between “oranges and oranges,” considering that slaves had no rights to full citizenship. Free blacks could not vote, run for office, or marry a white person. Additionally, free blacks were restricted from owning or operating businesses where alcohol was sold and their mobility was significantly restricted within the state.[19]

From 1812 to 1865, Louisiana passed dozens of statutes and civil codes regulating lives of slaves and free blacks, including voting restrictions[20]; and “local governments were authorized to pass laws policing slavery” as long as it was not in contradiction with state law.[21] In 1807, according to census records, there were 23,500 slaves and 4,000 free blacks in Louisiana; but by 1860, that number swelled to 330,000 slaves.[22] It is likely this increase in the number of slaves is due to the impact of the domestic slave trade as opposed to the importation of slaves from Africa.[23] The freedom of travel of slaves and free blacks was also restricted by legislation in 1817 as those who had been convicted of a serious crime were prevented from entering Louisiana; and they could not travel within the state without written authorization.[24] Free persons of color could not leave the state without the approval of parish authorities.[25]

Anti-miscegenation laws were established in the Civil Code of 1825 where slaves or free persons of color could not marry whites; and the 1825 code continued to deny property rights to slaves.[26] Furthermore, the code prohibited incorporation of religion by free blacks and slaves, restricted employment, and kept militias segregated.[27] Just before the Civil War began, in 1859 the legislature passed a law providing that free blacks could renounce their freedom and become slaves for life; and then, in 1864, all free blacks between sixteen and fifty-five were drafted to the Confederacy.[28]

Following the Civil War, Congress, aware of the resistance of the southern states, enacted the Thirteenth, Fourteenth, and Fifteenth Amendments to end the badges of slavery., established citizens’ rights and equal protection under law for recently freed slaves, and created voting rights, respectively. In addition, Congress passed the Civil Rights Act of 1866 to establish “all persons” would have the rights “as [those] enjoyed by white citizens.”[29] Only in Louisiana did federal authorities “implement experimental Reconstruction policies during the Civil War.”[30] These policies, including the establishment of the Freedmen’s Bureau, were met with violent hostility.[31] Race riots broke out in the New Orleans area; and in 1868 white terrorists in St. Bernard Parish killed dozens of blacks in opposition to “Radical Reconstruction.”[32] Slaves were still sold and the enforcement of mortgage contracts involving slaves continued to be pursued.[33] Notwithstanding the federal legislation, post emancipation, the amendments to the Constitution, and federal control of the state, Louisiana’s social and legal institutions designed to maintain White supremacy did not change. “Negro” and “colored” simply became code words for slave, a consistent theme throughout the country.

The Louisiana Constitution of 1864 did not provide voting rights for black men[34]; and the state refused to provide education for black children. Not to be dissuaded from subjugating blacks, Louisiana and other states continued “Black Codes,” which became known as Jim Crow laws. Louisiana passed more Jim Crow statutes than any other state and provided for “separate but equal accommodations” for whites and non-blacks on railroads (1890), separate waiting rooms (1894), and prohibited interracial marriages (1894). Later, Louisiana outright prohibited the building of “Negro hous[ing] in predominantly white areas (1912).[35] By 1897, the decision of the Supreme Court of the United States in Plessy v. Ferguson provided the green light for de jure segregation in Louisiana and around the country. The Court held that the Louisiana statute providing for separate railway cars for “white and colored races” did not violate the Constitution and cited the Civil Rights Cases as precedent where “refusing accommodations to colored people” did not “impose a badge of slavery or servitude.[36] Justice Brown, writing for the majority, addressed the constitutionality under the Fourteenth Amendment:

[the purpose of the amendment] was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either. Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other, and have been generally, if not universally, recognized as within the competency of the state legislatures in the exercise of their police power.[37]

The result was that blacks had gained freedom from slavery in name only; and, for all intents and purposes, they were relegated to a second-class level of citizenship sanctioned by the nation’s highest Court authority. The decision is one of the major failures of the Supreme Court. It’s only saving grace was the lone dissenting opinion by Justice Marshall Harlan who wrote:

Our Constitution is color-blind and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

In the next century, his grandson, a Supreme Court Justice who carried his namesake, used that dissent to say that separate was inherently unequal in the landmark case, Brown v. Board of Education.

This series of articles is written in honor of Black History Month.

Read Part 2 at: http://lawdoctorlee.hubpages.com/hub/The-History-of-Institutional-Racial-Segregation-in-New-Orleans-Part-2

By Liza Lugo, J.D.

[1] Quigley, Bill and Maha Zaki. “The Significance of Race: Legislative Racial Discrimination in Louisiana 1803 – 1865.” 24 S.U.L. Rev. 145, 147 (1997)

[2] Genealogical Information for the State of Louisiana. “St. Bernard Parish History and Information.” http://mylouisianagenealogy.com/la_county/sb.htm. 11/3/07. “Islenos” means “Islanders” in Spanish. Many of the descendants from the original settlers remain in St. Bernard Parish and continue to call themselves “Islenos” to the present day. The Islenos have made great efforts in maintaining their culture and roots in St. Bernard including the formation of the Los Islenos Heritage and Cultural Society and an expanding Los Islenos Museum.

[3] Anti-slavery.org. “Breaking the Silence: Learning about the Transatlantic Slave Routes – Spain.” http://old.antislavery.org/breakingthesilence/slave_routes/slave_routes_spain.shtml. 2/29/12. The establishment of the supply bases coincided with Christopher Columbus’ first voyage to the New World in 1492 and continued throughout the trans-Atlantic slave trade, as the Islands were an ideal location on the slave route out of Africa. “Merchants and sailors (from the Canaries) prospered greatly by investing in slavery in the Americas.” Slavery was part of Spain’s culture even before Spain colonized the Americas. Sugar cane was carried to the Caribbean and the Americas for cultivation; and shipments were sent back to Spain as early as the 1500s. It would not be long before African slaves were included in the shipments.

[4] Lizette Perez. The San Diego State University McNair Journal. Manumission and Gender in 18^th Century Spanish Louisiana: The Role of Women in the Establishment of a Free Black Society.” http://www.sci.sdsu.edu/mcnair/perez.pdf. 12/7/07.

[5] Maida Owens. “Louisiana’s Traditional Cultures: an Overview.” Louisiana’s Living Traditions. http://www.louisianafolklife.org/LT/Maidas_Essay/main_introduction_onepage.html. 2/29/12.

[6] Anti-slavery.org. “Breaking the Silence: Learning about the Transatlantic Slave Routes – Spain.” http:://www.antislavery.org/breakingthesilence/slave_routes/slave_routes_spain.shtml. 12/9/07. Spain conquered the Canary Islands in 1483.

[7] Merriam-Webster Online Dictionary. http://www.merriam-webster.com/. 12/9/07.

[8] Genealogical Information for the State of Louisiana. “St. Bernard Parish History and Information.” http://www.mylouisianagenealogy.com/la_county/sb.htm. 11/3/07. That plantation owners were also political officials is not unique to Louisiana. Only wealthy male property owners were allowed to run for office throughout the United States.

[9] Louisiana State Museum. “The Cabildo: Antebellum Louisiana: Immigration.” http://lsm.crt.state.la.us/cabildo/cab8.htm. 10/27/07. Human cargo was also transported from Africa and the West Indies into Louisiana.

[10] Losislenos.org. “St. Bernard Parish’s history – how we began: Louisiana’s Spanish Treasure.” http://www.losislenos.org/history.html. 2/29/12.

[11] Id.

[12] The New York Times. “The Domestic Slave Trade.” July 26, 1852. http://query.nytimes.com/mem/archive-free/pdf?res=950DE2D71531E13BBC4E51DFB1668389649FDE. 2/29/12. Because the number of slaves in Virginia, Maryland, Kentucky, and Missouri had grown “to an inconvenient extent,” it was necessary to “dispose” of them further south. Not only was it important to continue the slave trade in the southern states because of its economic dependency on slavery but the southern states wanted to, at the very least, maintain their numbers of slaves in the south for purposes of political representation since slaves were counted as three-fifths of a person.

[13] Supra. Quigley, Bill and Maha Zaki. “The Significance of Race: Legislative Racial Discrimination in Louisiana 1803-1865.” 24 S.U.L. Rev. 145, 147 (1997)

[14] Id at 149.

[15] Id at 150.

[16] Id at 150.

[17] Id at 150.

[18] IPOAA Magazine (Indigenous People of Africa and America). “The Black Codes of Louisiana, Mississippi, and Ohio.” http://ipoaa.com/black_codes_louisians_miss_ohio.htm. 2/29/12.

[19] French Creoles.com. “Free People of Color and Le Code Noir.” http://www.frenchcreoles.com/Louisiana%20Black%20Codes/louisiana%20codes.htm. 12/9/07.

[20] Supra. Quigley, Bill and Maha Zaki. “The Significance of Race: Legislative Racial Discrimination in Louisiana 1803-1865.” 24 S.U.L. Rev. 145, 147 (1997).

[21] Id at 160.

[22] Id at 148 and 160.

[23] Afrigeneas: African Ancestored Genealogy. “Slave Data Collection.” http://www.afrigeneas.com/slavedata/background.html. 12/9/07. Between 1808 and 1865, approximately one million slaves were transported in the domestic slave trade in the United States along coastal routes from Boston to New Orleans and from the Upper Mississippi into Louisiana. Some African-Americans were sold alone, divided from their families, while others were transplanted as a result of plantation owners moving their entire operations into what was then referred to as “the southwest” (Alabama, Mississippi, Western Georgia, Louisiana, Texas, and Arkansas). More than 60 rolls of microfilm housed in the National Archives document the slave manifests documenting the arrivals and departures of slaves in the Port New Orleans.

[24] Supra. Quigley, Bill and Maha Zaki. “The Significance of Race: Legislative Racial Discrimination in Louisiana 1803-1865.” 24 S.U.L. Rev. 145, 147 (1997)

[25] Id at 200.

[26] Id at 173.

[27] Id at 194.

[28] Id at 203.

[29] The Civil Rights Act of 1866 provided inter alia that “…all persons born in the United States and not subject to any foreign power, excluding Indians not taxed…shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

[30] Louisiana State Museum. “The Cabildo: Reconstruction: A State Divided.”

http://lsm.crt.state.la.us/cabildo/cab11.htm. 10/27/07. Louisiana strongly resisted reconstruction policies compared to other Confederate states because Louisiana cities were not destroyed during the war; and, therefore, the population was not desperate for an end to the war.

[31] Greta De Jong. “A Different Day: African-American Struggles for Justice in Rural Louisiana 1900-1970.” The University of North Carolina Press. 2002. http://uncpress.unc.edu/chapters/dejong_different.html. 11/3/07.

[32] Id. “Between 1866 and 1876, more than 1,300 black people were killed by white people in rural Louisiana, with political motivations underlying the vast majority of these murders.”

[33] Fenn v. Carr, 19 LA. Ann. 106 (1867); Dejean v. Arnaud, 25 La. Ann. 521 (1873).

[34] In the United States, women did not gain the right to vote until the passage of the Nineteenth Amendment in

1920.

[35] The History of Jim Crow. “Jim Crow in the South” http://ww.jimcrowhistory.org/geography/geography.htm. 12/9/07.

[36] Plessy v. Ferguson, 163 U.S. 537, 543 (1896) hereinafter referred to as Plessy.

[37] Id at 544

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