DePaul Journal of Sports Law Volume 2 Issue 1 Spring 2004 Article 2 Resolving the Chief Illiniwek Debate: Navigating the Gray Area Between Courts of Law and the Court of Public Opinion Brendan S. Crowley Follow this and additional works at: https://via.library.depaul.edu/jslcp Recommended Citation Brendan S. Crowley, Resolving the Chief Illiniwek Debate: Navigating the Gray Area Between Courts of Law and the Court of Public Opinion, 2 DePaul J. Sports L. & Contemp. Probs. 28 (2004) Available at: https://via.library.depaul.edu/jslcp/vol2/iss1/2 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Sports Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. RESOLVING THE CHIEF ILLINIWEK DEBATE: NAVIGATING THE GRAY AREA BETWEEN COURTS OF LAW AND THE COURT OF PUBLIC OPINION Brendan S. Crowley INTRODUCTION "It has ever been the way of the white men in relation to the Indian, first, to sentimentalize him as a monster until he has been killed off, and second to sentimentalize him in retrospect as the noble savage." -- James Gray, "The Illinois", 1940 In recent years, American colleges and universities have become increasingly cognizant of the debate surrounding Indian mascots. 1 Since Stanford University changed its name from "Indians" to "Cardinal" in the 1970s, sixteen other institutions have changed mascots that offended or inaccurately depicted Native Americans.2 These universities have consciously and freely decided to eliminate Indian mascots. Others, like the Florida State University Seminoles, have created an Indian mascot in collaboration with the tribe upon whom their mascot is based. Still others, like the University of Illinois, University of North Dakota, and San Diego State University, have steadfastly refused to cave to political pressures and remove their controversial mascots. This article will focus primarily on the debate surrounding Chief Illiniwek at the University of Illinois ("University"). From humble beginnings amidst the best of intentions, Chief Illiniwek has become perhaps the most controversial mascot in all of American sports. Part I of this article will trace the history of the Illinois tribes, the evolution of Chief Illiniwek, and the debate that has been raging on the Illinois campus since 1989. J.D. Candidate, DePaul University College of Law, 2005; B.S. Psychology, University of Illinois, 2000. Jeff Dolley, The Four R's: Use of Indian Mascots in EducationalFacilities, 32 J.L. & EDUC. 21, n.6 (2003). In an article discussing issues of Indian mascots, the author inquired as to the proper usage of the terms "Native American" and "Indian". The American Indian Law Review considered the use of "Indian" to be appropriate in the context of Mr. Dolley's article. Typically, "Native American" is used as a noun. "Indian" is used as an adjective. This article bears upon similar issues and will follow the same course as the Dolley article. Thus, mascots will be referred to as "Indian", while references to individuals or groups of people will be as "Native Americans". 2 The ChiefIlliniwek Dialogue Report, available at http://www.uiuc.edu/dialogue/report files/VII.html (last visited Jan. 24, 2004). The list of schools includes Dartmouth College ("Indians" to "Big Green"), the University of Oklahoma (retired "Little Red" mascot"), and Miami of Ohio ("Redskins" to "Redhawks"). 28 Part II of this article will analyze Crue v. Aiken, in which the University went to great lengths to prohibit anti-Chief speech during National Collegiate Athletic Association ("NCAA") recruitment periods. Crue sheds light on the need for clarity in NCAA rules. This is particularly true in regard to their extremely limited application to students and faculty, as well as to a limited group of individuals otherwise subject to the NCAA rules. Part II also shows that the First Amendment is not a panacea. While free speech was preserved to protect the interests at stake in Crue v. Aiken, it cannot also be employed to eradicate Indian mascots. An analysis of the "pedagogical concern doctrine" will indicate that some extensions of First Amendment doctrine are simply not worth their attendant costs to freedom of speech. As a result, the eradication of Indian mascots must take place under the sweeping power of the NCAA, or in the court of public opinion. Trademark law, once a stranger to the Indian mascot issue, enjoyed a brief stay as savior for those opposed to Indian mascots. Part III will analyze the impact of the Hago III decision on efforts to combat Indian mascots by way of trademark cancellation suits. The Hajo Court ultimately reversed factual findings of the Trademark Trial and Appeals Board ("TTAB"), which led to a reversal of cancellation of trademarks owned by the National Football League's ("NFL") Washington Redskins. Though the case of Chief Illiniwek may be distinguishable in some aspects, defenses utilized in Hlag'o III make it highly unlikely that trademarks for organizations with Indian mascots will be cancelled in the future. Thus, First Amendment and trademark claims by opponents of Indian mascots may not be successful in a court of law. Despite the shortcomings of adversarial legal proceedings, trademark law may still provide a means by which Indian mascots may be recast in a positive light and inure to the benefit of both their supporters and opponents. Part IV will apply the work of Professor Gavin 3 Pro-Football, Inc. v. Harjo, 284 F.Supp.2d 96 (D.C. Cir. 2003). 29 Clarkson to the Chief Illiniwek debate. It is hoped that application of the Clarkson study will affect a compromise in what has proven to be a protracted and highly divisive dispute. Creating value by collaborating on newly developed trademark images could serve as a catalyst to bridge the conceptual gap between perceptions of Native Americans and the reality of who Native Americans are. These trademarked images will become tangible assets, weapons of mass education that could bring an end to a debate that threatens to bring disrepute to some of our nation's finest universities. I. HISTORY OF THE CHIEF ILLINIWEK DEBATE A. Birth of a ControversialFigure As a starting point, it is essential to explore the history of the Illini tribe, the evolution of Chief Illiniwek, and the controversy surrounding use of the Chief Illiniwek mascot. The Illini tribes were a loosely affiliated group of tribes bound by their common language, Algonquin. 4 The boundaries of the area in which the Illini tribes lived were the Ohio River to the south, the modern Illinois-Wisconsin border to the north, the Wabash River to the east, and just across the Mississippi into eastern Iowa to the west. s The IlHini tribes subsisted on hunting, fishing, gathering, and farming. 6 After initial contact with European explorers in the late 17 th century, a substantial portion of the tribal membership was lost to disease and intertribal warfare, largely at the hands of the Dakota Sioux and Iroquois tribes. 7 These attacks were followed by a migration of the Illini tribes to 4 The ChiefIlliniwek Dialogue Report, available at http://www.uiuc.edu/dialogue/report files/II.itmil (last visited Jan. 24, 2004). These tribes included, but were not limited to, the Peoria, Tamaroa, Metchigamea, Kaskaskia, and Cahokia. 5id. 6Id. 7Id. 30 the Illinois River Valley, where they developed an alliance with the French and the Americans. ' This alliance proved disastrous, as the French ceded their territories to the British after the Revolution and the Americans failed to protect the Illini when attacked by British-supported groups. ' The United States adopted a policy of removal for Indian tribes in the early nineteenth century, which resulted in the forced relocation of tribes situated east of the Mississippi River. 1' Starting in the 1830s, the Illini were forced west of the Mississippi River to Missouri, then to Kansas, and finally to Oklahoma, where the Illini still reside, united today as the Peoria tribe. " In 1926, nearly a century after the removal of the Peoria tribe from the Illinois River Valley, the assistant band director at the University of Illinois proposed the idea of having an Indian dance at halftime of the upcoming Illinois-Pennsylvania football game. 12 An Illinois student with an interest in Indian folklore named Lester Leutwiler was selected to perform in his homemade costume of turkey feathers that featured a war bonnet. 13 The name "Illiniwek" was selected contemporaneously to the creation of the dance by Illinois football coach Bob Zuppke. 14 In the late 1920s, the University of Illinois adopted a new Chief Illiniwek costume. A student named A. Webber Borchers visited a reservation inhabited by the Dakota Sioux, the former enemy of the Illini tribes, in South Dakota. The purpose of the trip was to collaborate on a design for the costume. " Borchers sought out the Sioux tribe primarily because their dramatic war bonnets 8Id. 9 The Chief Illiniwek Dialogue Report, available at http://www.uiuc.edu/dialogue/report files/Ill.html (last visited Jan. 24, 2004). 10 Id. i The Chief Illiniwek DialogueReport, availableat http://www.uiuc.edu/dialogue/report files/Ill.html (last visited Jan. 24, 2004), supra note 5. It should be noted that a small number of Tamaroa and Metchigamea are still located in the Illinois River Valley region. Roughly 0.2% of Illinois residents identify themselves as American Indian, with no reference to tribal ancestry. The number of Native American students at the University of Illinois is also roughly 0.2% of the student population. 12 The ChiefIlliniwek Dialogue Report, available at http://www.uiuc.edu/dialogue/report files/IV.html (last visited Jan.