Ariane Liazos and Marshall Ganz

Harvard University

"If because of the accident of color, we are to be denied the privilege of practicing the

principles of Friendship, Charity and Benevolence by the Courts of this land, which

boasts of its free institutions, we are determined to know the reason why. Heretofore, we

have been dealt with as unorganized individuals; in this case, the most powerful and most

practical organization among us is attacked. Let us, with our means and with our might,

defend ourselves, for if this right is taken from us, there is no other for which we can

demand respect.

Sure, I must fight if I would reign,

Increase my courage, Lord.

I’ll bear thy toil, endure thy pain,

Supported by Thy Word."

Address of Supreme Chancellor S.W. Green at the Biennial Convention of the Supreme

Please do not cite without permission of the authors.  For information, contact Ariane Lizos, History Department, Harvard University, Cambridge, MA, 02138; liazos@fas.harvard.edu or Marshall Ganz, Kennedy School of Government, Harvard University, Cambridge, MA, 02138; marshall_ganz@ksg. Harva 1

Although most accounts of the African-American Civil Rights Movement begin in the

1950s, that movement was built on a foundation laid decades earlier. To be sure, Brown

vs. the Board of Education, the decision of the U.S. Supreme Court outlawing racial

segregation in schools in 1954, and the Montgomery Bus Boycott, demanding equal

access to public transportation beginning in 1955, were landmark events. Yet these

events were not without their own histories. They grew out of organizational

infrastructures, leadership networks, and strategic capacity developed over many years in

development was a campaign in defense of the right to organize that began in 1905 and

culminated in Supreme Court victories affirming this right in 1912 and 1929.

The organizations that led this fight, however, were not the advocacy groups, churches,

or black colleges often cited as incubators of the protests of the 1950s, but, rather,

African-American fraternal associations, resisting an assault on their organizational

become the most popular form of secular association among African-Americans. Indeed,

after the loss of voting rights and the subsequent disintegration of the Republican Party in

the South, only fraternal orders and churches remained as large-scale, trans-local

organizations for most black Americans. While many of these orders were distinctively

African American, created entirely by blacks, the largest were developed by blacks as

2

parallel versions of the white groups to which they felt they had an equal claim, but from

which they were excluded. Thus, by the early twentieth century, the American civic

landscape was marked by separate organizations for white and black Pythians, Elks, Odd

In 1905, leaders of these white orders launched a nationally coordinated legislative and

legal campaign to force their black counterparts out of existence, a fight that continued

through 1929. Beginning in New York and Georgia in 1905, the legal attacks spread to at

least twenty-nine states. Even though this assault was launched throughout the country, it

held particular vehemence in the South as part of a larger campaign of repression,

including disfranchisement and segregation. In effect, it was an attack on organized

black life as such. Despite the fact that these fraternal organizations often claimed only

to bury their dead and care for widows and orphans, the fact that they played a much

more important role in African-American communities was understood both by most of

their own members and by the whites who sought to eradicate them.

In a regime as repressive as the one that had developed in the American South at the turn

of the last century, the right to form organizations in itself was a powerful challenge to

the prevailing system. And given that African-Americans in that region faced so many

defeats in resisting disfranchisement and legal segregation in these years, their successful

defense of their legal right to form fraternal associations was particularly remarkable. In

defeating this attack, African-Americans defined their struggle not only as a victory for

their fraternal orders, but also more broadly as a fight for the "right to organize" and as a

3

struggle to "defend the race." As they did so, they grew increasingly supportive of a civil

rights agenda, contributing valuable organizational resources, strategy, and leadership.

In this paper, we argue that the power of the leaders of black fraternals to achieve these

victories was rooted in the organizational structure of their orders: bringing them together

at local, state, and national levels, facilitating strategic mobilization across levels of

government, and contributing a venue within which different, and in some ways

contradictory, internal and external modes of discourse could be sustained.

First, fraternal orders were organized in a tripartite system of local, state, and national

lodges, mirroring the structure of the American government. As political scientist E. E.

Schattschneider would have predicted, their trans-local character allowed them to

transform local conflicts into national ones, devising national strategies where local

strategies failed to mobilize national resources where local resources were inadequate,

and to leverage the better political position of African-Americans in the North to offset

Secondly, fraternal leaders, especially the African-American lawyers that provided legal

defense, discovered the advantages available to groups able to straddle multiple levels of

the federal litigation strategy developed in this fight linked the unsuccessful attempts to

desegregate the railroads in the 1880s and the later more successful strategies of the

4

of a national litigation strategy on behalf of civil rights, their focus on that organization

alone has led many to miss the earlier role of the fraternals in facilitating development of

national legal networks to coordinate litigation in multiple states, across different levels

misled some into thinking that this reliance reflected the competence or commitment of

defending the right to organize should put this claim in perspective.

Finally, their access to an organized constituency enabled African-American fraternal

leaders to combine the internal narratives needed to mobilize support with the external

narratives needed to minimize opposition. This allowed them to avoid the dilemma faced

by leaders with less organized constituencies, who found that the arguments they had to

organizational ties linking them to constituents through elections, conventions, and

publications allowed leaders to frame their struggle as one of racial militancy and pride,

summoning the commitment of energy, resources, and perseverance needed to win the

fight. In the public courts, however, their lawyers invoked far less-threatening legal

doctrines about laches, associational incorporation, and federal jurisdiction. Although

they did appeal to their right to equal protection under the Fourteenth Amendment, partly

affirming the internal understanding that the assault was motivated by racism (and not

mere questions of fraud and copyright), they focused on questions of legal equity rather

than broader issues of racial justice discussed internally. They were also probably well

5

aware that in the legal climate of the day, the courts were unlikely to hand down any

As a part of the larger Civic Engagement Project, this paper also demonstrates the value

of understanding broad social and political change by focusing on organizational

bulk of our research draws primarily on publications of the black fraternal orders

themselves. Indeed, it was through our examination of the organizational histories,

proceedings, and newspapers of African-American fraternal orders that we originally

learned of their legal struggles. These rich sources of information illustrate the central

role of organizations, the middle ground between individuals and broader political and

In the first decade of the twentieth century, white fraternal orders turned their attention to

their black counterparts as both turned to state and federal governments for legal

recognition of their organizational rights. With the passage of state and federal laws

disgruntled members forming splinter groups with similar names was endemic to the

fraternal world, both white and black. Securing a charter was one way to claim

6

functions. Under assault from commercial competitors as they struggled to deal with the

actuarial problems created by an aging membership, fraternal orders hoped to put their

because of the campaign of repression underway against African-Americans in the South,

the popularity of parallel Masons, Odd Fellows, Knights of Pythias, Elks and Shriners,

among blacks grew so fast that some began to rival or even pass their white counterparts

whites as many black groups applied for state and national incorporation, drawing

attention to the legal status and legitimacy of their orders. Thus, faced with the growing

prominence of their black counterparts due to expansion and charter applications, the

white fraternal organizations began a self-conscious campaign to destroy these

organizations altogether.

[Insert Figure 1, "Two Paths of Legal Action", about here]

As shown in Figure 1, whites challenged the legal status of black parallel orders through

both civil and criminal means. In civil law they challenged the black orders based on

what they argued were attempts by blacks to "defraud" the public into thinking the orders

were one in the same. The challenge was based on common law doctrine that one

business has the right to sue another if the latter copied the name or other relevant

features from the former to steal its customers. If the plaintiff could prove possible

damages in the form of a loss of business, the courts would enjoin the defendant from

using the name in question. By the turn of the century, the courts had also held that this

7

of incorporation often established who had claimed the name first, providing a basis for

litigation. Thus, one form of legal action began when a white group, often already

incorporated, appealed to the courts for an injunction against a black parallel order to

prevent it from copying the name, rituals, emblems, etc. of the white organization or from

In criminal law, whites attacked the parallel orders by introducing state trademark

legislation that would deny black groups the right to use the names and other prominent

features of the white orders. These laws, which had to be passed by state legislatures and

ratified by governors, applied to individuals rather than organizations. While civil

actions for fraud allowed white groups to enjoin black groups from using their name, the

trademark laws became part of state penal codes, permitting the misdemeanor arrest of

individual members of fraternal organizations for using the names, emblems, slogans,

titles of officers, rituals, pins, buttons, rosettes, insignia, and even colors of the white

group. While some laws protected the trademarks of organizations in existence at least

some states, the legislation required secret societies to purchase bonds from the state to

attain licenses in order to secure their right to their names, rituals, emblems, or even to

legitimacy of organizations and despite the fact that they never explicitly mentioned race,

it was well known at the time that their intent was to put an end to black parallel

8

[Insert Figure 2, "Major White and Parallel Orders", about here]

Some of the parallel orders were more vulnerable to both the civil and the criminal

litigation than others because of their origins. The African-Americans who organized the

Prince Hall Masons in the late eighteenth century and the Grand United Order of Odd

Fellows in the 1840s, after being denied entry into American branches because of their

race, formed their own organizations by obtaining charters from more tolerant British

denied admission to the white orders later in the nineteenth century, but since these

groups were indigenous to the Unites States, there were no European counterparts to

whom the blacks could appeal. Thus, when faced with a white rejection, they obtained

origins left these parallel orders with less legal legitimacy/security than those with British

As Figure 3, "Campaign to Destroy African-American Parallel Orders, 1905-1929",

shows, the assault played out over a period of 21 years, across at least 29 states, and in

different ways in different regions, largely as a function of varying levels of political

power held by African-Americans.

9

[Insert Figure 3, "Campaign to Destroy Parallel Orders, 1905-1929", about here]

The white Knights of Pythias, utilizing mainly civil suits and injunctions, launched their

attack on their largely southern black counterpart in Georgia in 1906. Their initial success

in Georgia encouraged other lodges of Pythians, Elks and others to seek injunctions in at

least eight other states where they won early victories - Tennessee, North Carolina,

Mississippi, Alabama, Arkansas and Virginia in the South and Ohio and Pennsylvania (?)

in the North. During this same period (1905-1913), the white Elks and others launched an

pass such a law was New York in 1905, black political mobilization foiled such efforts

elsewhere in the North including New Jersey, Massachusetts, Illinois, Iowa, Missouri,

Pennsylvania and in the U.S. Congress. In Montana where a trademark law was passed,

[Insert Map 1, "1905-1913", about here]

The first phase of the attack thus played out in two distinct ways, as shown in Map 1,

"1905-13". In the South, where African-Americans had lost their voting rights, as well as

New York and Ohio where at the state level, blacks had limited political influence,

trademark laws were enacted and litigation met with much success. Elsewhere in the

North and Mid-West, where African-Americans held more political power, proposals for

trademark legislation was stopped and litigation derailed.

10

[Insert Map 2, "1914-1929", about here]

The second phase of the campaign followed the Pythian victory before the U.S. Supreme

Court in 1912 that nullified untimely litigation in federal venues. On the one hand, as

shown in Map 2, "1914-1929", the white Elks pursued litigation and arrests in some

states like Florida, North Carolina, and New York, but in other states, like Minnesota, the

enthusiasm of local white lodges flagged in what seemed to be a losing fight. So in 1917,

white and black Elks negotiated a peace. On the other hand, the white Shriners, with

strong Southern support, tried to pick up in Georgia where the Pythians left off, filing

suits crafted to avoid Federal jurisdiction. Lawyers for the black Shriners successfully

crafted a counter-strategy, however, that brought them before the Supreme Court once

again in 1929 for a final victory.

How exactly did these developments unfold? And how did blacks mobilize the financial

support, legal resources, and strategic capacity to win this campaign in the early years of

the last century? As shown in Figure 4, "Timeline of Legal Action in Key States: New

York, Georgia and Texas", we answer these questions by focusing on the central

struggles of the Pythians, Elks, and Shriners.

[Insert Figure 4, "Timeline of Legal Action in Key States: New York, Georgia and

Texas", about here]

11

The attack on the African-American Knights of Pythias in Georgia was part of the assault

on parallel orders throughout the US, an assault on black civic associations in the South,

and the assault on black organization of any kind in Georgia. The campaign began when

the white Pythians passed an official resolution at a meeting in Augusta in 1906,

came when the black Knights of Pythias applied for a state charter. Their white

counterpart almost immediately sued for an injunction, claiming that they had an

exclusive proprietary right to the name "Knights of Pythias". The black organization was

guilty of fraudulently copying the name, thus infringing on the rights of the white

Outside of Georgia, branches of the white Pythians with similar aims closely followed the

outcome of the proceedings. In Florida, for example, white Pythians published reports

that they had formed an official committee to follow the case in Georgia in order to help

And within Georgia, as the trials got underway, white opposition to black organizations

The white fraternals also successfully lobbied for the passage of a criminal law intended

The Pythians were not the only black organization under attack as whites sought to

eradicate all types of fraternal orders and secret societies, parallel or distinctive, with or

12

also under attack, despite the fact that there were only three lodges in the state. And

regardless of ties to Great Britain that protected them elsewhere, the Masons and the Odd

turned to violent methods. In 1907, a number of black churches and lodge halls in Early

County were bombed. The Odd Fellows and the Supreme Circle, a distinctive black

group, were targeted; members of the Odd Fellows were told through anonymous letters

that if they "ever met again" they "would be blown to hell." Similar threats and violence

escalated to such a level that by 1910 the Governor launched an official investigation into

reports of murders and the burnings of lodges, schools, and churches in Columbia

County, where black fraternal members were also ordered not to assemble again. By the

next year the violence flared up yet again, sparked by the controversy surrounding a libel

case against one black journalist for a fraternal paper. Another lodge hall was burned and

rumors abounded of threats of lynching and of groups of armed whites forcibly

Despite these seemingly insurmountable odds, the black Pythians not only fought back,

but they also survived local and state legal reverses, pushed their case to the United States

Supreme Court, got a successful hearing, and in 1912 set a precedent that vindicated their

rights. They were able to achieve such a remarkable victory in large part because of the

structure of their organization. The trans-local ties of their federated structure provided

access to financial resources, facilitated mobilization of a legal network to develop the

13

strategies necessary for victory, and allowed them to conduct their struggle in a discourse

The first round of litigation played out at the local and state level as an initial ruling by

Atlanta Judge Pendelton, denying the white Pythians an injunction against the black

order. It was reversed on appeal by the whites to the Georgia Supreme Court, who

remanded the case for a jury trial. The blacks lost the 1907 jury trial, but prepared their

own appeal to the Georgia Supreme Court, who, in 1910, upheld the jury’s decision and

denied their appeal. Although unsuccessful to this point, this litigation took not only time,

but also lawyers and money. Where did they come from?

Although the black Pythians of Georgia retained the white law firm of Bell, Pettigrew,

and Bell to defend them at the local and state levels, they acted under supervision of

Pythian Grand Attorney, F.B. Pettie, a black Atlanta lawyer. The black Pythians had

access to lawyers, white and black, because like most fraternals, they had been involved

in litigation arising from internal splits and, most importantly, insurance claims and

African-American attorneys, for whom the fraternals were one of the few institutional

sources of employment. And although defending themselves in Southern courts required

retaining white lawyers – Alabama and Mississippi Pythians made the same choice –

positions of Grand Attorney and Supreme Attorney, at state and national levels,

respectively, by 1910 were occupied by black lawyers. Outside the South, Pythian

14

defense was conducted entirely by black lawyers. So when the assault by the white

fraternals came, the parallel orders were not without legal resources for a defense.

Nevertheless, the costs of these cases were a serious financial burden for the Georgia

Pythians, so much so that defeat led them to consider changing their name to the Knights

of Damon to avoid seemingly imminent arrests for violating the injunction against them.

Thus, at the 1909 national convention of the Supreme Lodge in Kansas City, Georgian

Grand Chancellor Charles Creswill reported on the legal reverses and suggested his lodge

might indeed have to change its name.

There the matter might have rested, but because this could have set a precedent that

would put the entire national order at risk, the Supreme Chancellor S.W. Green and other

national leaders encouraged the Georgians to stand their ground. They promised the legal

and financial aid needed to take their case all the way to the U.S. Supreme Court.

Making good on their promises, officers from the Supreme Lodge visited Atlanta in

1910, delivered $16,000 for legal fees, and committed the services of Supreme Attorney

ended as a local defeat thus became redefined as a national cause, a cause that the entire

order had an interest in winning.

[Insert Figure 5, "Networks of Fraternal Lawyers", about here]

15

As shown in Figure 5, "Networks of Fraternal Lawyers", Watkins and Pettie were but

two of what was becoming an extensive national network of black attorneys, tied to

fraternals as members, officers, and paid advocates, and linked to the emergent world of

black political activism.

A key figure in this network, coordinator of the Pythian defense – and later that of the

Shriners – was Supreme Attorney, S.A.T. Watkins. Born in Memphis on January 25,

1869, he had served as apprentice to T.F. Cassels, the first black assistant attorney

general of Tennessee. In 1892, a year after admission to the Tennessee bar in 1891, he

moved to Chicago where his prospects must have seemed better. He became associated

with Franklin A. Denison and James E. White, black attorneys with fraternal ties and

with whom he later established a firm. In 1898, Democratic Mayor Carter Harrison Jr.

appointed him assistant prosecuting attorney, a post he held for many years. At the 1910

Supreme Lodge meeting Watkins initiated the creation of a Legal Department, was

elected to lead it as Supreme Attorney, and assumed coordination of the Georgia case.

In defending the Order, he was associated with at least six other black attorneys in seven

other states who handled Pythian defenses in Baltimore, Pittsburgh, Charleston, Jackson,

Greenville, and Jacksonville. Some were Howard Law School graduates like Ellis and

Warring, while others, like Watkins, had apprenticed to practicing attorneys. Many were

active in local, state, or national politics, particularly in the Republican Party. Watkins,

for example, after he represented the Pythians before the U.S. Supreme Court in 1912,

went on to serve as assistant corporate counsel for the city of Chicago, becoming the first

16

Warring and Hueston were known for civil rights work, including Warring's integration

of the Maryland bar in 1885. Warring was also the first black attorney to ever appear

Renergized by this infusion of resources, legal talent, and strategic expertise from the

national organization, the black Pythians of Georgia prepared to appeal their case to the

U.S. Supreme Court in 1912.

The Georgia legal strategy Watkins and the others devised revealed their skill balancing

the internal demands of their fraternal organization with those of the legal climate of the

day. As indicated in convention proceedings, publications, and other internal discourse,

the parallel orders clearly saw this legal assault as a racist violation of their Fourteenth

Amendment rights. And it was in these terms – defense of the race - that they mobilized

came to crafting legal strategy, however, the lawyers realized that their chances of

Thus, although they did argue that to deny them the right to form parallel orders was to

deny their right to equal protection under the law, they did not solely rely on this claim.

And, just as expected, every court involved in this lawsuit rejected this line of argument.

In deciding against the black order, for example, the Georgia Supreme Court asserted that

since all "findings against the defendants" had been made "regardless of any

consideration of their color," the argument that their right to equal protection had been

17

review the case, it did not base that claim on the enforcement of federal constitutional

rights.

Anticipating the weakness of Fourteenth Amendment claims, Watkins devised an

alternative legal strategy, not only to remove the case from the Georgia courts to federal

jurisdiction, but also, once there, to argue their right to the name Pythians without regard

to race. Development of this strategy occurred partly by chance, and partly by intent.

First, when the white Pythians, acting on their organizational decision in 1905, moved

against their black Georgia counterpart, the fact that they had not incorporated in that

state barred them from proceeding without making their own Supreme Lodge, which had

been incorporated by Congress in 1890, a party to the suit. The fact that a federally

incorporated body was named in a Georgia lawsuit gave the black Pythian lawyers just

the handle they needed to open the door to an appeal to the U.S. Supreme Court. The

Supreme Court Justices agreed, granting a writ of certiorari and accepting jurisdiction.

Second, the black Pythian lawyers noted that their order was founded in 1880, its

Supreme Lodge incorporated in Washington DC in 1889, and the Georgia lodge formed

in 1890 – and now had over 300,000 members nationally. Yet the white Pythians had

seen no cause for legal action until 1906, twenty-six years after the original founding.

This opened the way to a claim based on the common law doctrine of laches. Laches

meant that if a newer organization infringed upon the rights of an older organization by

18

copying its name or other prominent features, the older organization had to sue within a

short period of time or lose the exclusive right to the name or features. In making such

an argument, the lawyers for the Pythians demonstrated their expertise in arguments

the right to use the name Pythian after they had used it for so long and invested so much

into the organization was to inhibit their ability to compete with other fraternal orders for

members. The Supreme Court accepted this reasoning, ruling that the white Pythians had

simply waited too long to initiate litigation. They thus no longer had the exclusive right

Georgia, enabling the black Pythians finally to receive their state charter in 1913, and

became a legal precedent for lawsuits in other states against the Pythians, effectively

[Insert Map 3, c. 1914, "States Overturned on GA Precedent", about here]

Although externally they may have argued their case as a matter of incorporation, federal

jurisdiction, and laches, internally the black Pythians saw their victory as a great moment

in defending the rights of African-Americans against racist attacks. In Georgia, for

example, one fraternal newspaper declared that "Not since the days of Dred Scott has the

Supreme Court of the United States rendered a decision so far reaching in meaning and

so substantially maintain[ing] the manhood rights of colored citizens, as is established

by" the Georgia case. And S. A. T. Watkins, architect of the legal victory, stressed the

contribution it would make to American jurisprudence. At the 1913 Biennial Session of

19

the Supreme Lodge, he declared, "This is the first case that I know of where a question

affecting the race was presented to the Federal Supreme Court since its existence, where

overstated today, but nevertheless they provide an understanding of the sense of

importance associated with this legal victory. In fact the Supreme Court’s decision did

establish the legitimacy of the parallel orders and affirmed a legal strategy to defend that

legitimacy that would be used in years to come.

Thus, although Pythian leaders appealed to race-based concerns to mobilize the resources

they needed to fight the fight, their lawyers developed a legal strategy based on claims to

federal jurisdiction due to the federal incorporation of the organizations involved, and a

common law property doctrine to achieve a signal victory before a U.S. Supreme Court

that had not been a strong supporter of black rights.

20

While the white Pythians, with a large Southern membership, took the lead in attacking

their black counterpart in the South, the white Elks (BPOE), primarily a Northern order,

took the lead against the black Elks (IBPOEW) in the North. Perhaps inspired by the

success of its Mississippi branch in blocking application for a state charter by the

IBPOEW in 1904, the national Grand Lodge proclaimed at its next convention that 1906

would be the year of "the action of prosecutions and legislation against Negro lodges, to

The BPOE pursued a dual strategy of seeking civil and criminal redress in which the state

of New York played a key role. In 1905, the New York legislature had passed a

trademark bill, the so-called Grattan Law, which made it a misdemeanor to wear the

badge or button of the BPOE, Grand Army of the Republic, Patrons of Husbandry,

Spanish War Veterans, and Military Order of the Loyal Legion of the United States, or to

1906, on a complaint by the Deputy Grand Exalted Ruler of the BPOE, the Yonkers

police arrested an IBPOEW members for wearing a BPOE emblem and pin. Although

the "culprit" was given a suspended sentence, a second arrest followed a month later in

Despite the mixed outcome of these arrests, the threat apparently persuaded the IBPOEW

21

As the campaign of the white BPOE gather steam, at their 1907 convention they formed a

"Commission of Three" to "secure legislation in the various states to protect our name

and emblem from abuse by imitation and to prosecute persons or organizations so

imitating our name and emblem . . .." By 1908 the Commission had secured permanent

injunctions in Tennessee and Georgia, protested the issuance of charters to the black

group to secretaries of state around the country, and introduced trademark legislation in

Massachusetts, New Jersey and elsewhere. Their efforts to secure federal legislation,

however, failed. And although the got the Exalted Ruler and Grand Secretary of the

BPOE sued for an injunction to prevent the IBPOEW from receiving the charter for

which it had applied in 1907. At the local level the injunction was granted and in 1912 it

The response of the IBPOEW to the coordinated national campaign of its white

counterpart was hobbled by internal differences over how to respond, differences

compounded by splits within the order over other issues. Launching an effective legal

defense would require a firm organizational commitment, but, like their local Pythian

counterparts when they first came under assault, some Georgia Elks were ready to change

their name, in this case to the "lions", before the national organization intervened. In

fact, until faced with a decision about whether or not to appeal the ruling of the New

York courts to the U.S. Supreme Court, the black Elks legal defense was handled by local

black attorneys retained by the affected lodges, not by a national legal coordinator. In

1912, however, matters came to a head when, in view of the Pythian judicial victory, they

22

had to decide whether to appeal their case to the U.S. Supreme Court as well. Despite the

reluctance of some national officers to commit to raising the funds, the Grand Lodge

decided to go forward.

Much as the Pythians turned to Watkins, an established lawyer with ties to both

fraternalism and political activism, the Elks turned to D. Macon Webster, a black

corporate lawyer from New York, to spearhead their legal team. Webster, like Watkins,

learned his profession as an apprentice, but after being admitted to the New York bar in

about 1890 he developed a successful corporate practice. Not wholly separated from the

challenges facing the black community, however, in 1900 he joined in efforts to seek

legal redress from the police following a race riot in New York City and in 1911, he

accompanied Booker T. Washington to court after Washington had been assaulted for

allegedly propositioning a white woman. Also like Watkins, he was politically active and

While the Pythian network, coordinated from Chicago, remained closely connected to the

South, the Elks’ network was more Northern, based in New York and Washington DC,

networking a younger generation of black attorneys with equally strong fraternal and

political ties. After 1913, coordination seems to have been handled by Armand W. Scott,

a youthful advocate of desegregation in Wilmington NC in 1898 and a 1904 graduate of

Shaw University School of Law, who was elected Grand Legal Advisor of the Elks. The

Elks network involved at least seventeen attorneys from Washington D.C., Richmond,

Los Angeles, New York, Pittsburgh, Philadelphia, Dayton, Kansas City, Cleveland,

23

Detroit, Baltimore, Charleston, and Atlanta. Most were Elks, many were Masons, and a

few were Pythians as well. At least nine were active in local, state or national politics,

and at least four had been directly involved in civil rights work. Four also held positions

with the emergent NAACP, including D. Macon Webster, the first black attorney to serve

on the National Legal Committee of the NAACP. The greater size, relative youth, and

northern base of most of the Elks’ advocates reflected both the base of that order, and the

Webster faced a very different situation than the one Watkins had to deal with. Unlike the

white Georgia Pythians, who had not incorporated in Georgia, the white Elks had been

incorporated by the New York State legislature in 1871. Although in 1907 the black Elks

had obtained a New York charter under a new non-profit organization statute, this statute

forbade the chartering of an organization that had copied the name of one in existence.

The black Elks lawyers argued that this law did not apply to their clients because adding

"Improved" and "of the World" made the names of the white and black Elks substantially

different. The New York Court of Appeals, however, taking into consideration the

trademark law passed in 1905, and basing its decision on "legislative intent to repress the

deceptive adoption of preexisting corporate names" ruled against them. The BPOE

successfully obtained an injunction against the IBPOEW in 1908, and despite numerous

appeals by the black organization, the New York courts upheld that injunction in 1912.

The failure of the black defense in the civil trials of New York underscores the

importance of a complex legal strategy in a legal system that denied the salience of race.

24

Taking a view similar to that of the Georgia courts, the New York courts held that despite

the fact that the two groups were of different races, "the question of color" did not "have

any legal significance in the litigation." It framed the case as a matter of general

principles concerning a "prior right" to the name Elks and whether or not use the name

Elk had any injurious effect on the white organization, such that it would have the "right

to injunctive relief."

The evidence, therefore, had to be weighed "as though members of both orders were both

of the same race."

Moreover, the laches defense had not been used, in all likelihood because the black Elks

were a much new fraternal order than the Pythians. And finally, because neither the white

nor the black Elks in New York who were parties to the suit had been federally

incorporated, the lawyers could not use this as a basis on which to claim federal

jurisdiction. So in 1913, when the black Elks did appeal to the U.S. Supreme Court, with

only the black and white Elks of New York named in the case, the Court denied a writ of

error, claiming that this was not a matter of federal jurisdiction. The black Elks tried

Although the resolution of the civil and criminal charges against the black Elks, both in

New York and in other states, differed from the resolution of the Georgian Pythian case,

it still reflected the importance of organization in defending the Order. In a number of

northern states, advocates for the IBPOEW had successfully blocked legislation before it

25

could be passed. But in New York, the black Elks were still faced with not only criminal

arrests but also a civil injunction. Even while appeal of the New York case to the federal

courts was pending, the Grand Lodge decided to pursue another resolution by working

out an agreement with their white counterpart directly.

At the 1913 Grand Lodge meeting, they emulated the Pythians in naming a Grand Legal

Advisor and deciding to pursue their appeal, but they also appointed a Committee of

national negotiations never got off the ground, and tensions persisted in various localities,

between 1913 and 1917, black and white lodges on a state by state basis began to

negotiate local accords that gradually took the steam out of the national effort. In

Minnesota, for example, black and white Elks organized a "harmony banquet" to settle

their differences (134). In others, such as Ohio (138), blacks enjoyed some local political

influence so negotiations between black and white lodges had resulted in local

agreements (137-38). Finally, in 1917, direct communications at the national level began

as Grand Exalted Ruler Harper (BPOE) "graciously responded to a letter sent by Grand

Exalted Ruler Scott (IBPOE) in which he declared the "IBPOE of W was trying to

improve conditions for Negroes as well as humanity and they were aiding the country in

undertook internal measures to accommodate some of the concerns of the BPOE. In

1917, for example, they prohibited their own members from wearing pins designating the

BPOE.

26

Finally, at the white Grand Lodge Meeting in 1918, Grand Exalted Ruler Harper

instructed all state and local lodges to end their litigation, and although some continued

New York, there were no further arrests and although injunctions remained on the books,

hold their convention there, a New York Superior Court officially dissolved the

[Insert Map 4, "States Where Elks Litigation Tapered Off", about here]

Although strategy devised by the black Elks to defend their organization differed from

that of the Pythians, they too had succeeded in sustaining their right to organize. In this

case, in the context of a national organization, instances of local vulnerability, as in

Georgia, were offset by strength in cities and states across the North. And although their

Supreme Court appeals failed, their network of local black attorneys, coordinated after

1913 by a Grand Legal Advisor, had proven a valuable resource in winning many of

these local contests. Finally, the fact that they were able to leverage instances of local

cooperation into a national "peace initiative" contributed to the detante with the white

order and ultimate success.

27

While the Pythians were celebrating their Supreme Court victory – and the Elks were still

hoping to follow suit – another white order began a third major legal assault. Although it

was a branch of the African-American Masonic family, the black Shriners, unlike the

Prince Hall Masons, did not originate with a British charter, but was indigenous to the

legal cases in the hopes that laches would not apply since the parallel Shriners was a

much newer organization than the parallel Knights of Pythias. While the black Pythians

were founded in 1880 and obtained their federal charter in 1889, the black Shriners were

The white Shriners thus began their attack in 1914 in the Georgia courts that had been so

responsive to the efforts of the white Pythians and Elks. Success in Georgia, where the

courts again issued an injunction, sparked another wave of lawsuits that by 1918 had

been filed throughout the South, in Arkansas, Florida, Louisiana, and Texas, and in

evident in the pages of the Crescent, the official organ of the white Shriners, which urged

the campaign on with such articles as "Here’s Good News: Negro Shriners in Georgia

Ordered Out of Business" that often referred to the black Shriners as "fighting coons" and

28

[Insert Map 5, "Shriner Attack", about here]

For their defense, the Shriner leadership wasted no time in turning to the "expert," S.A.T.

Watkins, Supreme Attorney of the Pythians, author of their successful litigation and also

a Shriner. Just as in the Pythian case, Watkins was networked with a team of local

Shriner lawyers, mostly Masons, who were based in Chicago, Providence, New Haven,

Atlanta, and Jacksonville and who had been involved in civil right work. Many also held

Shriners makes clear that they too paid close attention to the strategy and precedent

established by the Pythian case, particularly in terms of the role that federal incorporation

played in deciding jurisdiction.

The problem that Watkins faced was that the Georgia courts had issued injunctions

against the black Shriners, denying Watkins’ claim that laches applied in this case as it

had in that of the Pythians. Lawyers for the black Shriners again focused their hopes on

an appeal to the federal courts, but in 1919 the Supreme Court refused to review the case

since neither the blacks nor the whites had made their Imperial Councils, their national

Even while Watkins warned of the dangers of precedent, he devised a new legal strategy

focused on establishing federal jurisdiction so that a Supreme Court ruling could put

29

against a black lodge in the same city that was formed only a year before with the

expectation that laches would not apply. The next year, Watkins added the Imperial

Council as a party to the defense of its local branch. The case remained undecided until

March of 1922, when a district court in Texas granted a temporary injunction against the

Houston lodge of the black Shriners. But in December of that year the Imperial Council

of the white Shriners joined the suit and the Courts issued an injunction against the black

Imperial Council as well. A federal District Court made these injunctions permanent in

involvement of the Imperial Council of the black Shriners, however, Watkins was able to

get the U.S. Supreme Court to hear the case in 1929, claiming jurisdiction based on the

Having succeeded in getting the case within Federal jurisdiction, however, Watkins still

had to persuade the court that the substance of the Texas court decisions was in error.

Again, he argued that injunctions against the black Shriners were racially motivated and

hence violations of their Fourteenth Amendment rights. But aware of the legal and

political climate facing him, he likely held more hope in the efficacy of his racially

made the same argument based on laches: the white Shriners, having known about the

existence of the parallel order for years, had lost their right to sue. He also argued no

fraudulent intent on the part of his clients and denied that the whites had an exclusive

right to the name, asserting that it was widely known and accepted that there were

separate black and white Shriner organizations. The Court agreed on both counts, noting

30

that "laches barred it [the white Shriners] from asserting an exclusive right, or seeking

equitable relief, as against the Negro order. It overruled the Texas courts and gave

Watkins his second Supreme Court victory on the matter, a victory that marked the end of

What motivated such an extensive campaign to put the parallel black orders out of

business? An element in the broader assault on the rights of African-Americans at the

turn of the century, the timing can be explained by the flurry of filing for charters that

accompanied the rapid growth of the parallel organizations. Motivating the animosity

towards all black fraternal orders, parallel or distinctive, however was the fear and

hostility many that whites felt towards all forms of organized black life. This fear was

most evident in the violence that erupted against African-American institutions in

Georgia in the years of the fraternal litigation targeting fraternal lodge halls (parallel and

distinctive), churches, schools, and private property. Fraternal members even reported

explicit orders "not to meet in their lodge rooms and churches or assemble together."

One reason for the repression was the white claim that fraternal organizations served as

evidence that at times certain fraternal orders and other secret societies may have in fact

served as quasi-labor unions, although for the most part fraternal leaders vehemently

31

the truth of such claims, however, they gained such prominence in Georgia in particular

that by 1910, an Atlanta mayoral candidate ran on a platform that included a promise to

end all labor organizing through secret female fraternal organizations in order to protect

"helpless" white women from their domestic help; only two years later, a Georgia

been some veracity to the claim that some black fraternal orders were involved in some

labor disputes, at least some white contemporaries realized that the animosity was part of

a much longer term anxiety about black organization dating back to fears of "servile

clear that the legal assault on black parallel orders was part of a much larger desire to

limit or even eliminate all organized institutions and forms of assembly in southern

African-American communities.

Why then did African-Americans, when faced with such a threat, insist on the right to use

the same names and rituals of the white orders? Clearly, the right to organize was at

stake, but why would blacks have further opened themselves up to such attacks by using

these names and rituals? While their lawyers externally framed the legal resistance in

terms of laches and jurisdiction, the leaders of the parallel orders understood the cases as

having much broader significance, an explanation articulated within internal venues.

For African-Americans, use of the name Pythian, Elk, or Shriner was not a matter of

imitation so much as an assertion of equality or even superiority. When faced with a

white refusal to admit them to their own organizations, blacks formed their own parallel

32

organizations both to show that they too could live up to fraternal codes of morality and

even assert that they lived up to fraternal ideals of brotherhood and equality better than

their white counterparts. Membership in fraternal orders thus contributed to African-

Americans’ sense of respectability and self-worth, denied them by white society, and of

these names thus became a matter of racial pride and assertion of their rights, particularly

the right to free assembly, as American citizens.

The state and national conventions offer one key venue in which these internal

understandings of their organizations and their fight to defend them were articulated.

Such conventions were an important part of fraternal life, providing the opportunity for

members to gather, solidify trans-local ties, and articulate shared values. Here, countless

leaders made speeches to rally members to the cause of the trials. For example, in his

annual address at their national convention in 1920, Caesar R. Blake, the Imperial

Potentate of the black Shriners dramatically described the need to defend their right to be

Shriners as part of their duty to their own organization and even to all fellow blacks to

combat "the onslaughts that are being made against us in this life and death struggle"

motivated by "intense race hatred." Indeed, all the parallel orders described their legal

troubles in striking terms, the Elks even comparing their work to that of Martin Luther

and George Washington. S. A. T. Watkins, Supreme Attorney of the Knights of Pythias,

also connected their struggle to that of the American Revolution, echoing the ideals of

1776 by stating at their 1909 national convention that they were "entitled to the blessing

of life," to "liberty, the liberty of private and public assemblage and of speech," and "to

33

the pursuit of happiness, the happiness of association and close contact with one’s

chief architect of the Pythian legal strategy, show how the Pythians articulated one

external, pragmatic legal rationale for their defense while at the same time articulating a

more militant internal understanding of the cases as a matter of racial pride and duty.

Another venue through which fraternal members and leaders expressed this more radical,

internal discourse about the meaning of the litigation was through their own publications.

The Atlanta Independent, a weekly newspaper, was for a time the official organ of two of

the main parallel orders in Georgia, the Odd Fellows and the Pythians, one major

distinctive order, the Knights and Daughters of Tabor, and even the Republican Party. It

provides a vivid window into the fraternal world in these years, and its many editorials

concerning the legal battles detail a very clear understanding of their momentous

their fraternal troubles in even more radical terms. They began by making clear that

despite white claims to the contrary, most blacks clearly understood that these trials had

little to do with the simple exclusive right to the use of certain emblems or rituals.

Rather, they were part of "a fight against the Negro people because they are Negroes."

They spoke of these cases as a matter of their "manhood rights," specifically the right to

form organizations. Having recently lost their right to vote and watched the Republican

Party in the state become less and less effectual, many blacks realized the increased

importance of fraternal orders under such circumstances. As one editorial noted, "We

have nothing left us for civic and moral development except our secret orders. We have

34

been successfully eliminated from the politics of the south and we have nothing left to

help us develop a useful and helpful citizenship except the church and secret societies."

Moreover, they realized that the loss of one fraternal order could mean that no other

organization was safe. As another editorial put it,

…this fight in Georgia against the Knights of Pythias, is a fight against the

manhood rights of the race, and is only a beginning of the white man's fight

against all Negro societies. If they succeed in stopping us from dispensing

charity, benevolence and brotherly love among ourselves according to our own

conscience, it will not be long before the same men will go to the courts and seek

to enjoin us from using the words Methodist and Baptist, and later will enjoin us

from call [check] upon the God of heaven.

In the simplest possible terms, the Independent made its point: "The Order must be

In the introduction to this paper, we posed the question of how blacks could succeed in

this fight for the right to organize in the depths of the Jim Crow era. As we have shown

above, the federal structure of the national organizations of which they were a part

enabled them to turn local disputes into national ones, to devise strategy based on the

interplay of different levels of government, and to sustain a discourse that facilitated

35

internal mobilization and minimized external oppositions. This is how they raised the

money, how they mobilized the talent, and how they developed the strategy to succeed.

Defending themselves required raising the money to pay lawyers, cover court costs, etc.

Leaders of the white fraternals realized this and hoped that the cost of the trials alone

would bankrupt the black orders, a well-known technique to run organizations out of

Knights of Pythias, for example, raised and spent over $25,000 on the Georgia case

alone. Because many local lodges nearly bankrupted themselves paying legal fees, the

fact that a national organization could step in, coordinate fundraising, and generate funds

from a wide variety of sources turned out to be crucial. All three orders made pleas for a

legal war chest at national conventions, eventually establishing formal committees within

their orders to deal with fundraising. All three fraternals also institutionalized their

fundraising by establishing official "Legal Defense Funds." The Shriners based theirs on

a one-dollar assessment in 1917 and a two dollar one in 1920. The Pythians and the Elks

from across their memberships to litigate in specific towns, cities, and states further

underscores the importance of the federated nature of these groups. A local lodge alone

would not have had the financial resources to defend itself, but local lodges with ties to a

national network of support did.

As we have shown above, black fraternal orders had remarkable access to networks of

African-American lawyers across the country, partly because many prominent lawyers

36

were members. Fraternal involvement in litigation arising out of organizational

contention and insurance disputes also made the orders one of the few sources of

their white counterparts, these lawyers became a critical resource that could be mobilized

in their defense.

Because the fraternals had access to this diverse network of committed lawyers, crossing

boundaries of locality, specialty, generation, and practices at local, state, and federal

levels of practice and designated leaders among them to coordinate their efforts, they

developed the "strategic capacity" to devise effective strategy coordinating legal and

political initiatives. Trans-local legal networks, built on the sinews of fraternal

organizations, served not only to bring the resources of Northern black communities to

bear on the problems faced by those in the South, but also to link localities together in a

common -- unfolding -- legal strategy. They also learned from their mistakes. The Elks

finally appointed a legal coordinator in 1913. And Watkins turned his experience of the

Pythian case to the benefit of the Shriners, turning away from the dead-end Georgia

venue toward a new tack in Texas.

With respect to the content of their legal strategy, the federal incorporation of the orders

placed them under the jurisdiction of the national government, and enabled them to seek

redress in federal courts when defeated at the state or local level. At the time, they

realized the significance of these federal victories. The Shriner’s history claims that the

1929 Supreme Court victory taught all Masons that there were "certain constitutional

37

rights guaranteed to African-Americans by the Federal Constitution which cannot be

denied" in the state and local courts was an important "half-way" house between the antisegregation

railroad litigation of the 1880s, and the emergent NAACP litigation strategy

that was based on this approach.

The mobilization of black fraternal orders to defend their right to organization

contributed to the emerging movement for civil rights in many ways. As explained above,

success in getting the Supreme Court to trump state courts was to turn out to be a

cornerstone of NAACP legal strategy. More directly, many of the fraternals had begun to

articulate an understanding of their interests in newly militant ways.

In 1914, for example, just 3 years after the NAACP was founded, John H. Murphy,

Imperial Potentate of the AEAONMS declared in his annual address:

"Segregation has now been added to disenfranchisement and Jim Crow laws . . . I

cannot refrain from calling your attention to the splendid work being done by the

National Association for the Advancement of Colored People… We must give of

our strength and our means, and thus encourage them in their fight for us and

common humanity."

38

Similarly, as the drive to win a national anti-lynching law began, the Prince Hall Grand

Lodge of New York sent a resolution to Congress and the President demanding federal

intervention, the Elks began giving money to the NAACP, the Urban League, and other

local organizations and Grand Master W.C. Hueston, a member of the Pythian legal

network, declared in his address to the Missouri Grand Lodge of the GUOOF:

Every Agency, that we have, must be directed with full power on, against the evil of

lynching, because unless we can make safe the lives of men, women and children of

At least 6 of the 23 lawyers involved in the Elks and Shriners legal defense came to play

important leadership roles in the nascent NAACP. By 1927 the Black Elks had founded a

Civil Liberties Department committed to developing a national network devoted to civil

rights work were coordinating a two-day convention of seventy-five fraternal orders in

Washington, DC. There, they petitioned Congress on behalf of black rights and declared

the need for fraternals to unite their power to help the race by influencing the federal

Although Brown vs. Board of Education, the Montgomery Bus Boycott, and the Voting

Rights Act lay in the future, the battle won by African American fraternals to retain their

right to organize in the early years of the century played an important role in contributing

to the organizational, financial and strategic foundation upon which the modern civil

rights movement would be built.

39

2 For more on "strategic capacity," see Marshall Ganz, "Resources and Resourcefulness: Strategic Capacity

in the Unionization of California Agriculture," American Journal of Sociology 105:4 (January 2000): 1003-

62.

3 On the role of such institutions indigenous to the African-American community in the emergence of the

4 Theda Skocpol and Jenny Oser, "Organization Despite Adversity: The Origins and Development of

African American Fraternal Associations," forthcoming.

5 As Schattschnieder and others have argued, an ability to "socialize" local conflicts can give subordinate

groups advantages not available to them in particular localities, substantially enhancing their "strategic

capacity." E.E. Schattschneider, The Semi-Sovereign People (San Diego: Harcourt, Brace, and Jovanovich,

1975 [1960]).

advantages groups have that can target federal instruments of government while mobilizing across distinct

localities.

7 On the segregation cases on railroads, see Kenneth W. Mack, "Law, Society, Identity, and the Making of

8 See, for example, Benno Schmidt’s claim that with the emergence of the NAACP, "for the first time black

people were given systematic litigation support" in important cases related to civil rights. Benno Schmidt,

"Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 1. The Heyday of Jim

Crow," Columbia Law Review 82 (1982): 444-524. Quote from 456-57.

9 See for example August Meier and Elliott Rudwick, "Attorneys Black and White: A Case Study of Race

Relations within the NAACP", The Journal of American History, Volume 62, Issue 4 (March 1976), 913-

946. On page 917 they declare, for example, "…with most black lawyers caught in a vicious circle of

discrimination and inexperience, their usefulness to the fledging NAACP was limited."

10 An excellent example of this dilemma with regard to the women’s movement can be found in Jane

Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986).

11 Legal historians have often noted the lull in the enforcement of the Civil War Amendments in these

years. Benno Schmidt, for example, that from before 1910, the Supreme Court did little to support black

rights, but after 1910, this slowly began to change with some decisions supporting African-Americans

citing the Civil War Amendments. Yet Schmidt cites the first example of the use of the Fourteenth

Amendment by the Court to limit segregation in 1917, five years after the fraternal lawyers had made

similar arguments before the Court. Other legal historians, such as Randall Kennedy, disagree with

Schmidt, faulting him for portraying the Court’s record on race relations in the teens too favorably,

asserting that its record on African-American rights remained poor through the decade and beyond.

Schmidt, 44-446; Randall Kennedy, "Race Relations, Law, and the Tradition of Celebration: The Case of

Professor Schmidt," Columbia Law Review 86 (1986): 1622-1661.

12 The Civic Engagement Project, a collaborative research effort based at Harvard University and

coordinated by Theda Skocpol and Marshall Ganz, inquires into the history, development, and impact of

voluntary associations in U.S. public life.

1914]) through Charles Perrow, Complex Organizations (New York: McGraw Hill, 1986 [1972]) through

more contemporary theorists of resource mobilization and social movements such as John D. McCarthy and

40

14 In the latter half of the nineteenth century, the rise of large-scale business ventures led to the revision of

the process and meaning of the incorporation process. Although the granting of charters to corporations had

once been decided by federal and state legislative bodies on a case by case basis, it became increasingly a

matter of bureaucratic procedure in these years, particularly with the passing of an act by Congress in 1870

and countless similar state level acts for the granting of federal and state incorporation, respectively.

Moreover, although the right to incorporate had once been restricted primarily to businesses providing

public services such as banking and transportation, in the years after the Civil War it had become quite

15 While white lodges frequently sued other white lodges viewed as illegitimate, just as black lodges sued

other blacks, these intra racial battles never achieved anything near the scope or fervor of the white assault

on black parallel orders. Evidence of the problem of splinter groups abounds both in organizational

histories and in court records. For an example of splintering within the white Knights of Pythias that

resulted in litigation, see Supreme Lodge Knights of Pythias v. Improved Order Knights of Pythias, 113

Mich. 133; 71 N.W. 470 (1897). Joseph A. Walkes’ history of the black Shriners also discusses the

America and Its Jurisdictions, 1993), 93. Other black organizational histories abound with stories of

splintering among black orders, frequently over control of endowments and/or leadership struggles. For the

History, Inc., 1955), 58-63, 72-87, 92-113. For the African-American Knights of Pythias, Williams et al.,

87, 100-05, 115, 124-47, 157-59, 175.

2000), 130-142. Although Beito only discusses the push towards state regulation in terms of white

fraternal organizations, similar trends clearly applied to black orders in this period. The organizational

histories of the black groups provide abundant evidence of the centrality of insurance reforms. See

Williams et al., 124-47, 157-59, 175; Wesley, 113.

17 Skocpol and Oser.

568; 62 N.Y.S. 355 (1900). This case, decided by the Appellate Division of the Supreme Court of New

York, sided with the original organization and granted an injunction against the splinter group. Another

case often cited as a precedent, decided by the Supreme Court of Michigan, refused to grant such an

injunction, arguing for the legitimacy of splinter groups with distinct memberships, in this case a Germanspeaking

among rival civic organizations in the nineteenth and early twentieth centuries, the topic remains largely

unexplored by scholars.

19 The court records show two approaches to the civil litigation. Either the plaintiff sued based on common

law doctrines concerning fraud and trademarks or the plaintiff cited a specific act relating to the

20 While we do not have copies of all of the laws in their entirety, they are quoted at length in both the

N.Y. 459; 98 N.E. 756 (1912). For organizational histories, see Wesley, 68. Wesley quotes a 1905 law

from New York that not only listed the Elks, but also Grand Army of the Republic, Military Order of the

41

Loyal Legion of the United States, Spanish War Veterans, and Patrons of Husbandry, indicating that these

laws were intended to apply to more than just fraternal orders.

21 This law passed in Georgia in 1909. See Williams et al., 280-82, 311.

22 Newspapers openly reported the intent of these laws. For example, in Georgia, the Atlanta Constitution

described the legislation as prohibiting "the use by Negro secret societies of the insignia, ritualistic work,

grips, etc., of orders composed of whites" and the Macon Telegraph (a black paper?) characterized the law

as "calculated to put all Negro secret societies out of business." Reprinted in the Atlanta Independent, 21

August 1909 and 4 September 1909, respectively.

23 The Prince Hall Masons were founded when Prince Hall, a free black, Methodist Preacher, and soldier in

the Revolutionary War, obtained a charter from a lodge of British soldiers stationed in the American

Odd Fellows was founded in 1843 with a charter from the Grand Lodge in Manchester, England. See

Charles H. Brooks, The Official History and Manual of the Grand United Order of Odd Fellows in America

(New York: Books for Libraries Free Press, 1971 [1902]).

24 For the story of the Elks’ founding, see Wesley, 39-41. For the Knights of Pythias, see Williams et al.,

13-15, 62-68, 74-81. The history of the Shrine, a branch of the Prince Hall Masonic family, claims a

different origin. While the Black Shriners admit to applying for membership to a white lodge and then

being denied entry, they do not then admit to obtaining the ritual through surreptitious means. Rather, in

holding with the tradition of the white Shrine, they claimed that the order originated in Arabia, and then

echoing the history of the Prince Hall Mason’s charter from Britain, they claimed that they then obtained a

charter from the original Arabic branch of the order. There seems to be no legitimacy to the Arabic origins

of the Shrine, despite the assertions of both the black and the white orders. In fact, the Shrine was

indigenous to the United States. For this version of the Shrine’s origins, see Walkes, 15-21.

25 For a statement by the GUOOF proudly declaring the importance of its connections to England, see

"Secret Societies and the Law," Atlanta Independent, 13 June 1908.

26 Nevertheless, despite their ties to Britain, the Masons and the Odd Fellows were not immune from legal

attacks. The histories of the Elks and the Pythians make scattered references to legal action against the

Masons and Odd Fellows. For example, the Elks’ history refers to action taken against the Masons and

Tennessee and Odd Fellows in Mississippi in 1909. See Wesley, 86. The Pythian’s history claims that the

trademark bill that passed the legislature of Georgia in 1909 listed the Pythians, Elks, Masons, and Odd

Fellows by name. See Williams et al., 311.

27 The history of the black Knights of Pythias notes the figure of twenty-nine states by 1909. See Williams

et al., 311. By 1912, there organizational histories list law suits against the black Pythians in Georgia,

Mississippi, Tennessee, North Carolina, Alabama, and Pennsylvania, against the black Elks in New York,

Pennsylvania, Ohio, Tennessee, Georgia, and Virginia, against the black Masons in Tennessee, and against

the black Odd Fellows in Mississippi. See Williams et al., 282, 305, 329, 330, 345-6, 352, 355, 370, 397-

98 and Wesley, 36, 86-89, 108, 130, 128, and 145. For the case against the Elks in Pennsylvania, see

"Secret Societies and the Law," Atlanta Independent, 13 June 1908.

28 Williams et al., 310-11; Wesley 89, 129. Interestingly, in Montana the whites passed a law in 1907, but

the state supreme court declared it a violation of the 14th Amendment in 1908 (the only all the cases to be

decided as a matter of racial discrimination). State, Respondent, v. Holland, Appellant, 37 Mont. 393; 96 P.

719 (1908).

29 "To Put the Negro Knights of Pythias Out of Business," Atlanta Independent, 30 June 1906.

30 We were not able to obtain the court record from this initial trial. The legal argument of this first trial

was later explained in these terms in the court record of an appeal in 1910 to the Supreme Court of Georgia.

See Creswill et al. v. Grand Lodge Knights of Pythias of Georgia, 133 Ga. 837; 67 S.E. 188 (1910).

31 Reprint of the Florida Pythian (white) in Williams et al., 328.

32 Tera Hunter, To ‘Joy My Freedom: Southern Black Women’s Lives After the Civil War (Cambridge:

Belknap Press of Harvard University, 1997, 210-11, 233.

33 Several articles in the Atlanta Independent, a black fraternal newspaper, mention this legislation. See

"Governor Brown Signs Secret Order Bill," Atlanta Independent, 21 August 1909. Though this article

claims that the law would apply only to the Elks and the Pythians, but not to the Masons or the Odd

Fellows whose names were "slightly different," it is not clear why this would be true given that the Elks

and the Pythians also had slight variations in their names. When it was passed, however, the attention of

42

the white fraternals was focused on the Elks and the Pythians, so the law likely was likely tailored to apply

to them. It is not clear that the legislation was ever enforced though, particularly after the 1912 Supreme

Court victory in favor of the black Pythians in the civil suit.

34 "The Knights of Pythias Status in the State," Atlanta Independent, 1 August 1908; "Our Friendly

Societies," 7 August 1909.

35 "The Negro K. of P. in Georgia," Atlanta Independent, 13 November 1909.

36 "Dynamiting Negro Lodge Halls and Churches," Atlanta Independent, 28 December 1907; "Governor

Begins Investigation of Reported Strife – Situation Akin to ‘Knight Riding’ Alleged to Prevail in Columbia

County," Atlanta Independent, 5 February 1910; "Lest We Forget," Atlanta Independent, 2 December

1911; "Free Speech in Georgia," Atlanta Independent, 27 January 1912.

37 In a famous quip, community organizer Saul Alinsky remarked that organizers must find a way to be

"well integrated schizoids" who have to "polarize to mobilize, but depolarize to settle".

38 See footnote twelve.

39 "Grand Lodge K. of P. Meets Next Tuesday in Macon," Atlanta Independent, 7 July 1906; "Supreme

Incorporated Under the Laws of Georgia and the United States of America," Atlanta Independent, 4

December 1909; "The Knights of Damon," Atlanta Independent,4 December 1909; "The Colored Pythians

Lose," Atlanta Independent, 26 February 1910; "Atlanta Happenings," Atlanta Independent, 15 March

1910.

40 Who’s Who of the Colored Race, General Biographical Dictionary of Men and Women of African

Descent, Volume one, 1915, edited by Frank Lincoln Mather, Self Published, Chicago, 1915, p.278., Smith

338, 376-77.

41 On Waring see Smith 144—45, 164: on Stanton see Matther 252, Smith 154-6; on Ellis see Smith 238;

on Latham see Smith 296-7; and on McGill see Smith 180.

42 See section on "Motivations" bellow.

43 See footnote eight. Also, an exception to the unwillingness of American courts to make rulings based on

Fourteenth Amendment violations occurred in Montana in 1908, when the state Supreme Court ruled in

44 Creswill et al. v. Grand Lodge Knights of Pythias of Georgia, 133 Ga. 837; 67 S.E. 188 (1910).

45 Although legal historians differ as to the details and the implications of the importance of ideas about fair

competition in legal thought of this period, they agree on its prominence. Schmidt views the influence of

ideas about competition more favorably, defining the period as a progressive one, as an era of "laissez-faire

constitutionalism." See Schmidt, 456. Others, such as Morton Horowitz, are more critical of the

application of conceptions of fair competition in legal rulings, describing the period as a time when

Creswill et al. v. Grand Lodge Knights of Pythias of Georgia, 133 Ga. 837; 67 S.E. 188 (1910). It was

unusual for the Supreme Court to hear a case that involved a finding of fact, in this case the claim of the

courts in Georgia that laches did not apply. The Supreme Court explained its willingness to do so as

follows: "While this court does not as a general rule review findings of face of the state court on writ of

error, where a Federal rights has been denied as a result of a finding of fact and its contended that there is

no evidence to support that finding and the evidence is in the record, the resulting question is open for

decision; and where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to

require the facts to be analyzed and dissected so as to pass on the Federal question this court has the power

48 "Taft Judges All Right and the Order of K. of P. Lives," Atlanta Independent, 15 June 1912 and Williams

et al., 401.

43

49 Charles Edward Ellis, An Authentic History of the Benevolent and Protective Order of Elks (Chicago:

Published by the Author, 1910), 247, 252. By the 1950s, a history of the white Elks’ wrote out the racial

motivation of their desire "to protect our name and emblem from abuse by imitation." It now explained the

litigation and legislation in these years as a general attempt to prevent all copycat groups from using their

name and emblem, without any mention of race whatsoever. James R. Nicholson, Lee A Donaldson, and

Raymond C. Dobson, History of the Order of Elks (Chicago: Grand Secretary’s Office of the Benevolent

and Protective Order of Elks, 1969 [1953]), 217-225..

50 Wesley, 68, 129.

51 Wesley, 69, 145-6.

52 Wesley, 86.

53 Wesley, 87-89. Quote from page 87.

459; 98 N.E. 756 (1912).

55 From Buchanan to Button: Legal Ethics in the Early History of the NAACP, 1910-20, Susan D. Carle,

Associate Professor of Law, Washington College of Law, American University, Washington DC, 2002,

p.23, Smith 421.

56 On Webster see Carle, 28; Smith, 421: on Scott see Smith 138-9; on King see Smith 576; on Howard see

Smith 403, 552-5; on Gaskins see Smith, 14; on Jackson see Smith, 230; on McMeechan see Smith 127,

146, 180; on Nutter see Smith 238-9; on Thorne see Mather 263-4; on Fleming see Smith 415, 422; on

Johnson see Smith, 195-7, mather 156; on Ceruti, see Smith 487-8.

459; 98 N.E. 756 (1912). The 1912 decision by the New York Court of Appeals was mixed, upholding the

injunction against the use of the name Elks but allowing the use of the officer titles and colors. The black

Elks then appealed to the Supreme Court in 1913 and again in 1916, but both times were denied writs.

58 Wesley, 134.

59 Wesley, 147.

60 Wesley, 37, 146-7.

61 New York serves as one example here and Tennessee as another, where an injunction was also officially

dissolved in 1937 with the support of the white Elks. See Wesley, 274-76.

62 "Elks Grand Lodge Will Meet in New York City; Injunction is Suspended," Atlanta Independent, 28 July

1927; "Injunction Against Elks in New York Permanently Vacated," Atlanta Independent, 4 August 1927.

On end to the injunction in New York, see also Wesley, 203. The injunction against the Elks in Tennessee

was also legally dissolved with the approval of the white Elks in 1937. See Wesley, 275.

63 See footnote sixteen for explanation of the origins of the black Shrine. The black Shriners felt that the

white Shrine’s assault was the start of a larger plan to destroy all forms of black Masonry. Walkes, 106-07.

64 SOURCE TO BE ADDED.

65 Walkes, 83-5, 100, 106, 110, 126-39. A 1922 victory for the black Shrine at the Supreme Court of

Arkansas, ruling essentially that separate fraternal orders were part of a segregated system and citing the

1912 Georgian case, encouraged black Shriners in other states to continue their lawsuits. Walkes, 110.

66 Walkes, 83-88, 94-97.

67 See, for examples, reprints of excerpts from the Crescent in Walkes, 93-4, 126-7, 134.

68 Shrine Lawyers: WHITE (Smith, 376), HEATHMAN (Smith 161, Mather 134-35), MCGUINN (Smith,

147; Mather, 190; From: "The road from Frederick to Thurgood, Black Baltimore in Transition, 1870 –

1920,www.mdarchives.state.md.us/msa/stagser/s1259/121/6050/html/26160000. Html); PERKINS(Smith

281; From: D. W. Perkins, University of South Florida Tampa Campus Library, Special Collections

44

Department, Robert and Helen Saunders Collection, Ericka Lynise Burroughs' Thesis, Part Two, Chapter

THE TAMPA STORY)

69 Walkes, 83-88, 94-97. See also Faisan et al. v. Adair et al., 144 Ga. 797; 87 S.E. 1080 (1915).

70 Walkes, 83-88, 94-97. See also Faisan et al. v. Adair et al., 144 Ga. 797; 87 S.E. 1080 (1915). (Fix this

footnote so it covers only Watkins – Shriner history).

71 Burrell et al. v. Michaux et al., 273 S.W. 874 (1925); Burrell et al. v. Michaux et al., 286 S.W. 176

(1926).

72 ADD FOOTNOTES

73 Although the Justices at of the Supreme Court did not rule in favor of these Fourteenth Amendment

claims, they were more candid about the role than their predecessors in the 1912 decision. When they ruled

in favor of the African-American Shrine, they openly spoke of the role of race, denying any "fraudulent

intent" on the part of the African-American Shriners, noting that both organizations made it clear that they

of Georgia and New York, in which the opinions of the courts denied that race played any significant role

whatsoever, the court records from Texas exhibit a much more candid discussion about the importance of

the racial nature of the dispute. In addition to their other claims, lawyers for the African-American Shriners

argued that the granting of an injunction would deny their right to equal protection as guaranteed by the

Fourteenth Amendment. Additionally, much as the Odd Fellows and Prince Hall Masons claimed

legitimacy through their British origins, the black Shriners claimed that their founder came to Chicago from

Mecca in 1893 and that the Shrine was originally instituted "among the darker races of Arabia by a son-inlaw

of Mohammed" in 656 A.D.. The decisions of the courts in Texas denied the veracity of these origins

and claimed that given the small size of the black Shrine, laches did not apply in this case of fraud as it had

in Georgia. But in denying the Arabic origins of the Shrine, one verdict spoke of the black "instinct to

imitate the white race around them" and the dangers that such imitation posed for the white order, even

quoting Shakespeare’s Iago saying to Othello, "He who steals my purse steals trash, but he that filches from

me my good name leaves me poor indeed." In a similar vein, another spoke of the legality and "esteemed

value of segregation in social matters" and thus of the clear harm that would come to the white Shrine if it

were to be associated in the public mind with African-Americans. See Burrell et al. v. Michaux et al., 273

74 Ancient Egyptian Arabic Order of Nobles of the Mystic Shrine et al. v. Michaux et al., 279 U.S. 737, 49

S. Ct. 485 (1929); Walkes, 139-42. The black Shriners expressed this sentiment that their troubles were

over in a letter sent to the Imperial Council of the white Shrine in hopes of reaching an agreement to

coexist peacefully outside the courts as well. The white Shrine replied that as far as their Imperial Council

was concerned, the Supreme Court’s decision had ended all litigation, but that it could not control all state

branches. Walkes, 139-42.

75 "Dynamiting Negro Lodge Halls and Churches," Atlanta Independent, 28 December 1907; "Governor

Begins Investigation of Reported Strife – Situation Akin to ‘Knight Riding’ Alleged to Prevail in Columbia

County," Atlanta Independent, 5 February 1910; "Lest We Forget," Atlanta Independent, 2 December

1911; "Free Speech in Georgia," Atlanta Independent, 27 January 1912.

76 For evidence of fraternal orders in Georgia that seem to have served in part as labor unions, see Hunter,

71, 88. Hunter describes an 1881 strike led by a washerwoman’s secret society. For one of many denials

on the part of black leaders that their fraternal organizations were in any way political, or in this case,

connected to organized labor, see "Dynamiting Negro Lodge Halls and Churches," Atlanta Independent, 28

December 1907.

77 Hunter, 210-11, 223.

78 "Negro Secret Societies," Macon Telegraph. Article reprinted in the Atlanta Independent, 6 July 1912.

For more on the white fear of slave insurrection in Georgia as late as the early 1860s and the paranoid fear

of nearly all groups of African-Americans, free or slave, and resultant repression and violence, see

Clarence Mohr, On the Threshold of Freedom: Masters and Slaves in Civil War Georgia (Baton Rouge:

Louisiana State University Press, 2001), 3-11, 20-35.

79 Historian Nick Salvatore describes the Grand United Order of Oddfellows in these terms in his biography

of Amos Webber, who was a prominent member. Nick Salvatore, We All Got History: The Memory Books

45

of Amos Webber (New York: Times Books, 1996), 59-67. Evelyn Brooks Higginbotham provides a similar

account of the important sense of respectability that African-American women attained through their work

University Press, 1993).

80 Walkes, 106; Wesley, 90-91; Williams et al., 314.

81 The vast majority of the articles in the Independent were overwhelmingly supportive of the Pythians.

Due to a personal disagreement between its editor, B. J. Davis, and the Grand Chancellor of the Pythians in

Georgia, Charles Creswill, some articles began to take a more critical stance.

82 "The Knights of Pythias Status in the State," Atlanta Independent, August 1908; "Our Secret Orders

Atlanta Independent, 30 May 1908; "Our Friendly Societies," Atlanta Independent, 7 August 1909.

83 Walkes, 107.

84 Walkes, 88-90, 106, Williams et al., 280, 372; Wesley, 89,-91128. STILL NEED PAGE NUMBER FOR

KOP 1909 OFFICIAL LEGAL DEFENSE FUND

85 Latham (Smith 296), Ellis (Smith 238), and MicGill (280), for example, were known for their insurance

expertise.

86 Walkes, 137.

87 On the Prince Hall Masons (Muraskin, 221); On the Elks, Wesly, 174; On the Shrine, XXX

88 Wesley, 214-5.