By Andrew Chin
From DIVERSTORY (working title) (Frank Wu, ed., forthcoming 2002)

In the early 1980s, an unusual legal argument, combining civil rights, antitrust, and contract laws, persuaded a federal court in Texas to disband a private army of white supremacists and safeguard a vulnerable community of Vietnamese refugees.

America's involvement in the Vietnam War had left millions of Vietnam's civilians dead and its land in ruins. A sustained, indiscriminate campaign of bombardment and depopulation led Martin Luther King, Jr. to observe in 1967: "We have destroyed their two most cherished institutions: the family and the village. We have destroyed their land and their crops. . . . We have corrupted their women and children and killed their men." When the United States finally withdrew from Vietnam in 1975, the Hanoi government sought to redress its wartime grievances and to restore order by persecuting its wartime adversaries. Many of the South Vietnamese who had fought alongside the Americans came under pressure to flee to the countryside or to leave the country altogether. In early 1978, the Communists extended their repression to the ethnic Chinese of both North and South Vietnam.

Between 1975 and 1983, thousands of Vietnamese refugees crowded into unseaworthy boats bound for Indonesia, Malaysia, Thailand, Hong Kong and the Phillipines, and faced storms, starvation, disease, and piracy in the South China Sea. Statistical data suggest that half of the Vietnamese "boat people" died at sea. At a June 1979 United Nations conference on the growing humanitarian crisis, the United States, Australia, Canada and France agreed to resettle a total of nearly 700,000 Vietnamese refugees.

In the United States, immigration agents asked Congress to scatter the incoming refugees across the country in order to prevent "ghettoism." This resettlement policy led to the creation of Vietnamese communities in states such as Texas that had relatively little previous experience with Asian Americans. In Texas, many of the new arrivals, facing language barriers and having little capital, found opportunity in the Gulf Coast shrimping industry. "We like the weather, we like the shrimping, we like a chance to start our own businesses," one immigrant explained. Vietnamese fishermen and their families pooled their savings and began to buy their own boats.

Many white fishermen in the area tried to ward off the competitive threat. Vietnamese shrimpers found that they could purchase their boats only at a considerable premium. "They got hustled pretty good," said an American shrimper. The American fishermen pressured most of the local bait shops to boycott the Vietnamese shrimpers. They also successfully lobbied in the state legislature for restrictions on new shrimp boat licenses.

Undeterred, the Vietnamese fishermen thrived in the shrimping industry by working longer and harder than their white counterparts. "They put all their children and aunts and uncles on the boats, and if they make $10 in profit a day, they're ahead," said another white fisherman. Some whites felt that they were being forced to lower their standard of living to that of the new arrivals. Many presumed, falsely, that their Vietnamese competitors were being subsidized by welfare grants from the government. Others considered the Vietnamese fishermen's aggressive practices, such as following their competitors' boats to a catch, and unloading their boats across other boats' decks, to be unethical and unfair.

The changing economics of shrimping made the competition even fiercer. The increase in fishing activity in Galveston Bay reduced the available catch, while a rise in imports kept wholesale prices low. Faced with this profit squeeze, many longtime shrimpers went out of business. Others tried to compete by streamlining and cutting costs. Some, however, took more drastic measures.

Between 1979 and 1981, several Vietnamese-owned shrimp boats were burned in the Galveston Bay area - fires that arson investigators later determined had been intentionally set. There were also reports of snipers firing shots across the bows of Vietnamese boats. On the night of August 3, 1979, in the town of Seadrift, several Vietnamese boats were burned and a vacant Vietnamese house was firebombed, and a fistfight between white and Vietnamese fishermen ended with the fatal shooting of a white crabber. Two Vietnamese were tried for murder and acquitted on the grounds of self-defense.

The incident caused many whites to mistrust the entire Vietnamese community. Some mistook the refugees for the North Vietnamese communists they had fought and fled. Others understood that the refugees had been America's wartime allies, but still felt that they should be forced to leave the area. "There's too many of them," a white fisherman declared, "and there's not enough room for them and there's going to be lots of hard feelings if they don't get some of them out of here and teach the ones that they leave how to act and how to get along. I think they ought to be put on a reservation somewhere or . . . in a compound to teach them our laws and our ways, the way we live, our courtesy as a people."

On February 14, 1981, a group of white fishermen organized a rally against the Vietnamese fishermen. Also attending the rally were Louis Beam, Grand Dragon of the Texas Knights of the Ku Klux Klan, and thirteen uniformed members of the Klan's military arm, the 2,500-member Texas Emergency Reserve. Beam told the white fishermen that he would give the government until May 15, the start of the shrimping season, to remove the Vietnamese fishermen from the area, and that if this was not accomplished, the Klan would "take laws into our own hands." Later, Beam also demonstrated how to burn a boat, and issued an invitation to those present: "The Ku Klux Klan is more than willing to select out of the ranks of American fishermen some of your more hardy souls and send them through our training camps. And when you come out of that, they'll be ready for the Vietnamese." The rally was extensively covered by the local news media.

The Klan took its message directly to the Vietnamese fishermen on March 15. A group of armed, hooded Klansmen and Texas Emergency Reserve members, accompanied by a news reporter, conducted a "boat parade" in the waters near Seabrook, stopping along the way to display their weapons and to make threatening gestures. An effigy of a Vietnamese fisherman was hung from the rear deck. The parade was seen by Vietnamese fishermen and their families on the docks and other boats in the channel.

In Montgomery, Alabama, Morris Dees, a civil rights attorney, was monitoring the Klan's activity. He and his law partner Joseph Levin had founded the Southern Poverty Law Center in 1971 to enforce the new laws and rights that had been won by the civil rights movement (see sidebar). Dees was convinced that he could halt the Klan's activities in Galveston Bay by proving in court that Beam and his associates had broken the law.

On April 16, 1981, Dees filed a wide-ranging lawsuit on behalf of the Vietnamese fishermen against the Klan, Beam, and various other Klansmen and alleged conspirators in the federal district court for the Southern District of Texas. The Vietnamese fishermen sought a court order to prevent the Klan's threatened campaign of intimidation and violence during the 1981 shrimping season. As in many civil rights lawsuits, the plaintiffs pursued claims under the federal civil rights statutes, the Thirteenth and Fourteenth Amendments to the United States Constitution, and the common law of contracts and torts. Dees also alleged that the Klan had violated two laws that have rarely been considered part of the civil rights arsenal: the 1890 Sherman Antitrust Act and an even older Texas statute prohibiting the operation of private armies.

The judge assigned to the case, Gabrielle Kirk McDonald, had been appointed by President Jimmy Carter in 1979. She was the first African American in Texas and the third African American woman in the nation to serve in the federal judiciary. After learning that Judge McDonald was an African American, Beam asked her to disqualify herself for bias, referring to her as a "Negress" and citing the prejudice of "your people against the Klansmen." Noting that a defendant "is not entitled to a judge of his choice, he is only entitled to a fair and impartial judge," Judge McDonald denied Beam's request. Judge McDonald would later reveal that she and her family had received death threats and one-way tickets to Africa while she was handling the case.

During a highly publicized four-day trial, several of the Vietnamese fishermen, facing into an audience that included several robed Klansmen, took the stand to testify. Judge McDonald also heard testimony from the defendants, law enforcement officials, and the reporter who had accompanied the Klan on the March 15 boat ride. On May 14, the last day of trial, the court issued a preliminary injunction prohibiting the defendants from threatening, intimidating, or harassing the Vietnamese fishermen or inciting others to do likewise.

The shrimping season began the next day. Dees, rising early to watch the boats leave the harbor, saw flashes of sunlight reflecting off the badges of the U.S. marshals who had been assigned to protect the Vietnamese fishermen. "I felt proud, not only to be a lawyer, but I felt proud to be an American," Dees said. The Vietnamese worked all summer without harassment from the Klan.

In July, Judge McDonald issued a written opinion explaining the legal reasoning behind her decision to issue the May 14 injunction. She decided that the Vietnamese fishermen's claims under the civil rights laws were "clearly" supported by evidence that the Klan had deprived the plaintiffs of their basic rights under Texas contract law and federal antitrust law.

Judge McDonald found that the trial evidence showed that the Klan had interfered with their rights under Texas law to negotiate and enter into contracts. She concluded that the Klan had "acted intentionally to impede and prevent the plaintiffs from pursuing their lawful occupation," and that as a result, many of the Vietnamese fishermen had agreed to sell their boats or had been discouraged from shrimping.

Judge McDonald's opinion extensively addressed the plaintiffs' claims under Section 1 of the Sherman Act. That statute prohibits "[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States." The federal antitrust statutes are typically invoked to challenge anticompetitive business transactions, but Judge McDonald found them applicable to the Klan's conduct.

Judge McDonald cited the U.S. Supreme Court's statement that a violation of Section 1 of the Sherman Act may be established by proof of "either an unlawful purpose or an anticompetitive effect." The Vietnamese fishermen had alleged that the Klan had attempted to intimidate them into selling off their boats with the purpose and effect of reducing competition in the shrimping market in the Kemah-Seabrook area. Judge McDonald found from the trial evidence that the defendants had "agreed to engage in conduct which had the stated intent of eliminating a class of competitors from the commercial fishing business in Galveston Bay." She held that there was sufficient proof of an unlawful purpose and an anticompetitive effect to support the grant of a preliminary injunction. In August, without objection from the Klan, the court made the injunction permanent.

In March 1982, Judge McDonald heard oral arguments on the remaining issue of whether the Klan's military operations violated the state's prohibition on private armies. The Texas statute prohibits individuals from associating as a military company or organization and from parading in public with firearms in any city or town. The Klan argued that their military activities were a legitimate exercise of their right to bear arms under the Second Amendment. Judge McDonald, however, found that Texas's ban on private armies was consistent with the Second Amendment's purpose of allowing states to maintain a "well-regulated militia." On June 9, 1982, the court issued a permanent injunction ordering the Texas Emergency Reserve to disband and prohibiting the Klan from maintaining military organizations, conducting military training, and parading in public with firearms. The injunction was posted in conspicuous locations throughout the Kemah-Seabrook area.

In recent years, the federal courts have limited the ability of private plaintiffs to bring antitrust cases under the Sherman Act and made it harder to prove that a defendant's actions had an anticompetitive effect. Generally, the federal courts have also narrowed their use of injunctions to enforce the civil rights laws. Thus, even though Dees's unorthodox strategy of using business laws to provide the necessary legal support for a civil rights injunction succeeded in this case, it is unclear whether the same approach would prevail today.

http://andrewchin.com/chin/scholarship/fishermen.htm
http://www.splcenter.org/get-informed/news/a-look-back-splc-case-brought-justice-to-vietnamese-fishermen-terrorized-by-klan