The Montana Human Rights Bureau has ordered a convenience store chain to pay a $7,000 penalty for refusing to recognize a Northern Cheyenne tribal identification card in the face of a state law that declared tribal IDs equal to state IDs since 2007. The decision in a complaint brought by Carl High Pine, 59, makes plain that refusing a tribal ID is a denial of equal access to a place of public accommodation and writes the latest chapter in a fight against racial discrimination in public that has gone on for more than 50 years.
During the last half of the ’60s, the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were invading the part of the country where they were least welcome, the Confederate States of America. The resistance was declared by a sign that seems innocuous if you don’t know the history:
We Reserve the Right to Refuse Service to Anyone
That was a declaration of war on the most controversial part of the Civil Rights Act of 1964, the public accommodations clause. In addition to violating federal law, such a policy would violate English common law, the basis for the law of every state but Louisiana. It has always been the law that when you hold yourself out as serving the public, you must serve the public, excepting persons drunk or disorderly or, by custom, out of compliance with a dress code evenly enforced.
The bottom line is that the sign attempted to reserve a right that did not exist. Discrimination against Native Americans has a longer history in North America than discrimination against African Americans, although by the time the U.S. became a nation both kinds of prejudice were a fact of public life.
Some time in the middle of March 2016, 59-year-old High Pine went into 3Gs, part of a chain of convenience stores with seven locations in the Billings area. High Pine, a Northern Cheyenne, tried to buy a bottle of champagne and, despite his age, was asked to show identification.
High Pine produced his tribal identification card, which was rejected as valid ID by the store clerk and by a supervisor. There was a poster on the wall stating a policy of not accepting tribal IDs. High Pine would later testify to the following conversation, which 3Gs did not contest by calling either of their employees as witnesses:
Supervisor: “We don’t accept those—tribal IDs—do you have a Montana driver’s license?”
High Pine: “(My tribal ID) is just as good as a Montana driver’s license.”
Supervisor: “We don’t have to serve you. There’s plenty of other stores you can go to.”
High Pine: “I understand that, but I came here.”
High Pine produced a Montana driver’s license and made his purchase but he then filed a complaint with the Montana Department of Labor and Industry Human Rights Bureau. After a state investigation, his complaint was brought to a hearing in January of this year. The hearing officer published the decision March 17, a full year after the incident.
The store was represented by a lawyer at the hearing on Carl High Pine’s complaint; High Pine was not. It’s a common rule of evidence that when a party fails to produce a witness under its control—here, two employees—the fact finder can conclude that those witnesses would not have done any good for the party failing to call them. So, the conversation High Pine related stood as a fact.
The hearing officer found putting up a sign saying tribal IDs would not be accepted was by itself a violation of Montana public accommodations law.
The store, after High Pine’s complaint was filed, changed their poster to read that tribal IDs might be accepted along with some secondary ID. The hearing officer noted that the altered posters were still illegal and suggested that they seek legal advice.
The store, while it did not contest High Pine’s statement of what happened on the day his tribal ID was refused, brought in another 3Gs employee to testify about a conversation on another occasion in which High Pine expressed support for the water protectors at Standing Rock. It’s hard to see the relevance of this conversation other than an attempt to show that Carl High Pine was a troublemaker and that’s why he made a complaint.
In making an award of $7,000 as compensation for emotional distress, the hearing officer found:
There is ample evidence that High Pine already had emotional scars from a lifetime of experiences of demonstrable discriminatory animus directed against him, and recalled those experiences when again faced with discrimination based upon his race.
While the hearing officer did not point it out, the state of Montana has produced a poster explaining the status of tribal IDs under Montana law and featuring pictures of the credentials issued by all the major Indian nations with reservations in Montana. On the face of the state-issued poster, it informs the public that equal dignity for tribal IDs has been the law in Montana for 10 years.
Not every Indian has a driver’s license and equal access to public accommodations has been federal law for more than 50 years. The law can’t force anyone to like persons of another race, but it can shut down the practice of refusing to do business with them. Carl High Pine’s case got broad coverage in the Billings area, so there is some hope that other businesses will get the message that the hearing officer sent by awarding significant damages.