The issue of mascot issues brings into play a variety of legal issues

Onteora Central School District

Ulster County, New York

Issues and Law

Race and ethnicity based mascots bring into play a variety of legal issues.The current premise espoused by entities utilizing race and ethnicity based mascots and other depictions is the adoption is based on the desire to honor the race or ethnic group. If the premise is correct it will be supported historically.

The history of adoption of Native American mascots and associated depictions almost all fall in the two major cowboy eras of the 1920s and late 1940 to late 1950s.There are no known adoptions of any native based mascots prior to the end of the Western Indian Wars, and more importantly none prior to the death of Geronimo in 1909.

The start of Western mythology and the fascination with Western Indians is attributed to early Western novel authors and traveling shows.The greatest of the shows being Buffalo Bill's Wild West Show which included noted Indians such as Sitting Bull.The novels and traveling Wild West Show had a considerable impact promoting the fierce Indian mythology.With the heyday of both radio and TV came the greatest increase in interest in western mythology.

With the advent of organized sports came the desire to adopt mascots to promote the team’s athletic prowess.In instances where Native American based mascots were chosen the choice was made from lists that often included various Indian descriptive and slang terms as well as “vicious” animals from American, and often Western American folklore including wolves, lions, eagles, hawks and other similarly situated creatures.

Where the depiction involves Indians from tribes outside the general geographic area and the adoption falls into one of the two major Western popularity eras the adoption was not made through the desire to honor native cultures, instead the depiction was made to create a fierce image for school teams.

During and following the Western mythology popularity eras American Indian names were chosen from lists that often included descriptive as well as slang terms (including terms such as Indian(s), Redskin, Redman, Injuns, Braves, Warriors, Squaws, Chiefs, Cherokees, Sioux, Apache, etc…).The mascot depiction most frequently adopted is based on one of two general classifications of Western Indians.

The largest group of mascot models are based on Plains Indians such as Sioux, Cheyenne and Arapaho (frequently portrayed in TV programs and popular Western mythology with eagle feather war bonnets). There are numerous examples of Plains Indian regalia used in mascot roles in areas outside the aboriginal areas of Plains Indians.

The depiction on the left is a Gene Autry poster, depiction on right is one of the depictions representing the Onteora Indian from the Onteora High School, Ulster County, New York (Catskills Mountain Region).The most realistic descriptive term for the depiction on the right is “Vacation Indian”, because the only time anyone from a tribe with a history of using a similar headdress was in the Catskill Mountain region would have been in recent times, when the person was on vacation.

The second most frequently depicted classification of Indians are from Southwest tribes such as the Apache, andNavajo tribes.Southwest Indians are most often seen with colorful blankets, one or two feathers tucked in the wearer’s hair in a manner that does not extend above the profile of the wearer’s head.

The depiction and use of geographically incorrect depictions is common. Once it is determined the depiction of the mascot is geographically incorrect the recently adopted “heart felt desire to honor Native American” argument becomes meaningless.If the original intent was to honor Native Americans the depiction would more than likely have been accurate, and it would not have taken 40 years or more for the “true” motivation behind the adoption to become known.

With the historical basis of the mascot determined, any effort by an entity to modify, change, or adopt in any way a “more accurate native mascot” to meet the entity’s newly discovered original motivation for the use of a native based mascot because the entity is now also interested in finding a way “to better honor Native Americans” should be considered suspect.

The original intent behind the adoption of race based mascots is not curable with new stories concocted in an effort to preserve an offensive mascot anymore than we would allow other offensive actions to continue to exist with new, more acceptable explanations.If the Klu Klux Klan burns a cross on a person’s front lawn we would not allow them to argue what they did is somehow now socially acceptable because they have created a socially acceptable reason for their actions.

If the Klu Klux Klan were to burn a cross in a yard and assert the real reason they burned the cross was to honor the persons religious experience by showing the world how the cross of Christ was illuminated in the victim family’s life we would react no differently than prior to the ludicrous explanation because regardless the explanation we understand the motivation behind the act, the same is true regarding native mascots.

In virtually all areas where native based mascots were adopted the original native population was non-existent due to the success of various de-nativization programs.Typically the native population in the surrounding geographical areas was non-existent during the lifetimes of even the oldest of residents, and frequently the former native residents were removed prior to the birth of the oldest resident’s deceased parents and grandparents.As a result, traditions, customs and ceremonies utilized by the adopting entities are most frequently the result of a depiction from a movie or television program or the result of a non-natives imagination.

Due to the of native customs and religions some of the “dances” depicted in TV and movies are, or are close to, ceremonial dances that are part of native religious ceremonies.With TV and/or movie depictions of native dances as the model, native religious traditions find themselves incorporated into mascot programs.The use of native religious tradition in half time, or as part of moral building or fan entertainment is no different than mocking sacred “Christian” religious practices and traditions for the same reason.While this is true, only native religions are routinely forced to undergo mockery.

Having ones heritage, traditions, religion and culture used to satisfy the entertainment demands of society forces members of the race or ethnic group chosen to be treated in manner that is different from other similarly situated members of society.The equality of treatment is particularly important where children are involved, especially where compulsory education is mandated and the entity promoting unequal treatment is a school.

One of the more frequent questions posed relates to racism and what is or is not racist behavior. Regardless a person’s ideological affiliation few if any people want to be referred to as racists.The foregoing is as true for Klansmen and Skinheads as it is for normal members of our society.

It is not at all uncommon for people engaged in ideological differences regarding the differential treatment of members of a race or ethnic group to recognize the actions of opponents as racist.Regardless if the actions of a person are well meaning, and are founded in the desire to preserve a community tradition, the actions can none the less be racist, this is as true for well meaning people as it is for people with evil intent.

The vast majority of society is uncomfortable with the defense of native heritage actions as they serve as a reminder of the horrors perpetuated against Native Americans.Native Americans are expected to be silent, out of sight and out of mind.Prosecution for violations of civil rights related to native issues has taken a back burner in virtually all jurisdictions and in many jurisdictions native issues are never addressed.

While native issues remaining out of sight and out of mind has been the standard course of action for years, in recent months this attitude has changed.Recently Kevin Grover, U.S. Department of Interior, expressed sorrow concerning the use of native based mascots. Asst. Secretary of the Interior Grover, Pawnee, noted the use of native based mascots is dehumanizing and makes it seem as if Indians are a relic of the past.

Supporters of native based mascots are quick to note their use of native mascots is meant to honor natives, they may even parade a few of their “friends” who are native in support of the local mascot.It is ironic that the same people professing to be honoring natives through the use of a native based mascot are rarely if ever sure what Indians, individual, or as a tribe, nation or band they are honoring, but not knowing who is being honored seems to be a minor inconvenience at best.

If being named as a mascot is meant in a beneficial manner, why not give the same opportunity to all races and ethnic groups.If the same acceptance of race or ethnicity based mascots and names was given all groups we would have sports teams such as the Kansas City Jews, Atlanta Caucasians and Washington Negroes, but such is not the case.Instead we have the Kansas City Chiefs, Atlanta Braves and Washington Redskins complete with offensive depictions, representations and actions, and when natives object we are told the names and depictions are meant as an honor or else we are told our skin is too thin.Is it?

When matters concern Native American mascots it is common to hear supporters of the racially offensive mascots to declare they are not racists, some of them even have “good friends who are Native American.”It is also common for some of the same people to suddenly remember their own “native” heritage as they proclaim their pride at the depiction they are defending.It is also not unusual for some of the same closet natives to develop their own “Indian” names for the duration of the mascot issue.

Today it is well accepted that the Frito Bandito and Sambo are racist depictions of members of a race or ethnic group.With equal treatment the rule of law, all similar representations for other races or ethnic groups must face similar categorization.Considering the foregoing, is the same true with representations and/or depictions regarding Native Americans? The reality is such has not been the case, and Native American’s are routinely forced to endure categorization as mascots and demeaned accordingly without the protection of government agencies or entities charged with protecting civil rights.

Unequal treatment in education has existed within organized societies, sponsored by various government, quasi government and religious entities throughout human history.To address unequal treatment within the United States the U.S. Congress adopted legislation to eliminate sex and race discrimination and harassment.

There is an extensive line of cases regarding sex discrimination and harassment, the same is not true in matters involving race and ethnicity, the lack of case law is due in large part to the reluctance of potential plaintiffs to advance causes of action.To assist race discrimination and harassment cases the U.S. Supreme Court has drawn the parallel between race and sex based harassment and discrimination cases, and sex based cases are frequently cited in cases based on race and ethnicity.

Home Rule

In mascot issues involving local school districts it is not uncommon to hear terms such as “Home Rule” tossed about by those seeking to retain their district’s native based mascot.The issues involving Home Rule are neither new, nor difficult to understand.Home Rule is an integral part of the States Rights political ideology.The argument advanced in both Home Rule and States Rights is the political unit is free to determine issues without interference from the more “superior” political unit.In the case of State’s Rights, the political ideology holds the various states are free to determine issues within their boundaries without Federal intervention.

In the case of Home Rule, political subdivisions of the various states argue they are free to determine issues without Federal or State interference.The clearest example in recent memory of the promotion of States Rights and Home Rule was in the desegregation battles of the 1960’s.

Throughout the South there was a clear determination to prevent the integration of educational institutions on the premise that segregation and desegregation were local issues, and at most both were a state issue.It is important to note a similar argument was advanced on a recent New York radio program by a member of Commissioner Mills’ staff while explaining the issue of native based mascots.The logic and issues advanced by Commissioner Mills’ representative are uncomfortably similar to those advocating segregation in the 1960’s.

When ordered to integrate Southern schools, local school boards called on local leaders to assist in preventing the integration of schools.When local resources proved inadequate, local officials called for assistance from state leaders.Perhaps the most “memorable” example of a state leader becoming involved in a local segregation issue involved the Federal order to integrate the University of Alabama.

In response to calls to assist in preventing integration, on June 11, 1963, Alabama Governor George Wallace personally prevented two black students from registering at the University of Alabama.Governor Wallace’s actions were in direct defiance of a Federal order to allow the registration of black students.Over the following years Governor Wallace became involved in a variety of desegregation issues and efforts; his actions were copied by other Southern leaders.

Throughout the South, local and state forces were used to prevent the integration of public schools, colleges and universities and Federal orders requiring integration were ignored.To combat local and state forces preventing integration, President Kennedy Federalized National Guard units and utilized Federal law enforcement officers to integrate educational institutions.

The end result was a national determination that the U.S. Constitution applied to all states and it applied regardless what Southern governors, mayors and school boards believed.Today the vast majority of Americans understand the mistreatment of Southern blacks was wrong, as was the effort to keep them from fully participating in all public educational institutions.

Like Southern educational institutions demanding the right and ability to keep their schools white, and to retain the ability to oppress black students today we see the same efforts and arguments regarding the retention of native based mascots.Like the Montgomery School Board, and other Southern school boards, the Onteora board majority believes the decision to retain or remove their existing native based mascot is theirs and theirs alone and their actions should be viewed in light of what the local majority determines is correct.This opinion is exactly the same as the opinions held in Southern districts during the 1960’s.

The Onteora School Board believes there are no laws that apply to them based on the concept of Home Rule.The Onteora board is determined that they are in the best position to determine what if any effect the mascot has on students within its district.Curiously the Onteora board believes the most important effect of the mascot should be how the students would feel if the mascot is removed.

Contrary to the belief of the Onteora board majority, legally the issue is not how students and alumni feel about the removal of the mascot.The only legally relevant issue is how the mascot effects the educational opportunities for natives and other persons of color, this concept has escaped the Onteora board majority.

Members of the Onteora board majority have pledged to fight removal of native based mascots if they are ordered to remove them by State or Federal authorities.The rhetoric of the Onteora board majority, and its leader Joe Doan, sounds the same as Governor Wallace’s 1962 pledge "I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say, segregation now, segregation tomorrow, segregation forever."The difference between Governor Wallace and the Onteora School Board majority is in 1982 Governor Wallace acknowledged the error of his ways and pledged to work to develop unity with all peoples, races and ethnic groups.

Unlike Governor Wallace’s efforts at reconciliation, the Onteora board majority voted to expedite a vote that they knew would derail negotiations to develop a solution that was acceptable to both sides of the issue.The Onteora board majority decide to expedite the mascot restoration vote in spite of being asked by the New York Attorney General, and numerous other persons who understood a resolution was within grasp.The board majority expedited the vote to re-instate the mascot, as predicted, negotiations ceased and today all parties are as far apart as they were months ago.This is particularly unfortunate given the final resolution was expected four days from when the vote was made.

Title II of the Civil Rights Act of 1964

Title II provides all people equal access to all public facilities and other facilities and services within the scope of the title without regard for race or ethnicity.The Onteora mascot poses a wide range of Title II issues.

The Onteora District meets the statutorily required compulsory education needs of parents and children within the Onteora district.The Onteora “high school” is the only school within the district meeting the educational needs for students grades 9-12 and is funded through a combination of Federal, State and Local sources.State funding is provided through a combination of State and Federal funding.

Alternatives to Onteora are available outside the district, however to attend an alternative school outside the Onteora district would require private transportation, and payment of tuition ($11,000 to $15,000) and is not within the means (finances and time-time required to transport child to and from alternative school) of most potentially effected students.

With Onteora representing the only “high school” resource within the district, and other alternatives are unavailable the effect of any discriminatory practice will be to force the districts students to be subjected to the discriminatory and hostile environment as a result of the native based name and mascot.

As part of the Catskills Mountain region Ulster County and the Onteora District are unique.More than 100 miles from New York the Onteora school sporting events represent a source of entertainment for a large number of persons, both from the district and elsewhere.

The Onteora mascot is present within the Onteora educational facilities in various depictions, and is present at all known sporting events in a variety of forms.The Onteora District sporting team events are potentially attended by persons outside the local area (girls and boys basketball teams are both championship teams), and the State of New York.The sporting teams representing the Onteora District are supported by the Onteora district though budget allocations from the general district budget.

The Onteora school band participates both in some sporting event activities as well as acting independently from the sporting teams and is supported though budget allocations from the general district budget.The band instruments and uniforms are owned by the district.The materials used within the district and within the sporting and band programs are in part due to interstate commerce.

The Onteora District is within Ulster County, Catskills Region.Ulster County area has tourist based revenue of approximately $400,000,000 per year (New York Tourism).The Onteora District receives revenue as a result of tourist based revenue, which is in part due to interstate commerce.

Under Title II virtually any of the above represent an independent basis for an actionable complaint.

While the Onteora District may not physically prohibit native children or other native people from attending and otherwise participating in activities within the district it is however a denial of Title II if the person(s) effected by a discriminatory practice are prevented from engaging in an activity as a result of the practice.

The Onteora District is public funded, the actions of Onteora are state action, and with few exceptions, discriminatory action based on race and ethnicity is prohibited.Even without Federal funding, due to the involvement of Interstate Commerce in all areas of the district actions the chilling effect on participation within the district maybe actionable on Interstate Commerce grounds alone.

Federal courts have held where an offensive name was directed at person the name itself was actionable under Title II.In Jones v. City of Boston, 783 F. Supp. 604, 605 (D. Mass. 1990) an African-American patron at a bar in Boston was referred to as a “nigger,’ as this reference denied Jones access through intimidation.This action was sufficient to qualify as a Title II violation.

Some may argue the word “Indian” is a legitimate descriptive word, and it is, however it is not a descriptive word for a school, but for a group of people, additionally the district utilizes various ludicrous, absurd and hostile environment creating mascot depictions, including the depiction of “Chief Reclining Skunk.”Over 500 Native American organizations, and Asst. Secretary of the Interior Kevin Grover, are on record in opposition of native based names and mascots, including name and mascots similar to the Onteora Indian.As in Jones, natives are denied full access though intimidation where mascots and Indian names is used.

The intent of actions does not need to be discriminatory, all that is necessary is the result is discriminatory.To date no court has required a showing of discriminatory intent under Title II.In Robinson v. Power Pizza, Inc., 993 F. Supp. 1462, 1465 (M.D. Fla. 1998) the court held the “lack of racial animus” is not a defense.

There is case law that has addressed the negative effect on a group of people identifiable by race or ethnicity and how a name can be a deterrent in and of itself, this is however beyond the scope of this memo.

It is common for schools such as Onteora to suggest 40 or 50 years after the date of adoption that the purpose behind the adoption of a native based name and mascot was to honor Native Americans.Even if the adoption of a native based name and mascot was to honor Native Americans the intent of the adoption does not overcome the intentional use of racial and ethnically based descriptive terns, and depictions. United States v. Gulf-State Theatres, Inc. , 256 F. Supp. 549, 552 (N.D. Miss. 1966).

The need to determine the intent of the adoption of a native based mascot is not relevant in a Title II complaint, what is important is how the actions effect natives who reside within the district or may be involved in activities within the district.The Onteora board is on notice, and has been on notice as a result of complaints to the district, and the board, of the hostile and discriminatory racial environment the name, mascot and other depictions has created and the effect these actions and environments have on natives within the district.

Important to remember is the chilling effect on natives who, had it not been for the actions of the district and board in perpetuating a hostile racial environment, might have moved to the Onteora district, or those who left the district as a result of the district and board’s inaction to resolve the issues.

In the Onteora matter the board’s re-adoption of a native based mascot and name is in direct conflict with complaints already filed with the district citing the name and mascot depictions as having both a discriminatory effect and creating a hostile environment.In repealing the Onteora district racial discriminatory policy currently existing, the board is in effect adopting a policy to the contrary.

Effect of Federal Funding

A government entity receiving Federal funds, direct or indirect is prohibited from acting in a discriminatory manner.Where a state acts as a distributing authority or agent the state has obligation to ensure the Federal anti-discrimination policies are followed, to do otherwise places Federal funding in jeopardy.

More than four years ago the discriminatory nature of mascots within New York was been brought to the attention of the Commissioner of Education.After more than four years, the New York Commissioner of Education has failed to take action to address the discriminatory effect of native based names, mascots and their associated depictions.As of the Commissioner’s inaction funding from Federal programs could be at risk.

While the exact amount of Federal funding provided the State of New York since 1964 is unknown at this date, if return of funds is sought from the enacting of the 1964 Civil Rights Act the amount could easily exceed $50,000,000,000.00.In 36 years the Department of Education has yet to audit or take action against a single school or district regarding racially hostile environments (Source:Commissioner of Education’s office).

If the return of funds are sought only from the time Commissioner Mills has had the mascot issue on his desk, the amount could exceed $6,000,000,000.00.It is important to remember in the 36 years since the passage of the Civil Rights Acts the issue of native based mascots has never been discussed by the Board of Regents (Source:Board of Regents).In the five years since the Commissioner Mills has had an official complaint the Commissioner has never brought the issue before the Board of Regents (Source:Board of Regents and Commissioners office).

In that the Board of Regents and Commissioner of Education have failed to take any action in more than three decades one could easily assume they are not concerned and their failure to actively endorse the Federal non-discrimination funding requirement makes a solid case for requiring a full refund of all Federal funding for the past 36 years.The question must be asked, how much is it worth to the State of New York to support native based mascots?

While at this date the exact amount of Federal funding to the Onteora district in direct and indirect Federal payments is unknown, it is believed requiring Onteora to repay all funding since the enacting of the Civil Rights Act of 1964 would amount could exceed $15,000,000.00.

If Onteora is only required to repay Federal funding from the date the offensive nature of the mascot was officially brought before the district and/or the board the district would be required to repay more than four years funding.It is estimated the amount of direct and indirect Federal funding received by Onteora in the past four years exceeds $2,000,000.00.If it is alleged the Onteora district committed fraud in certifying its compliance with Federal non-discrimination policies it is conceivable that the amount sought as a result could increase substantially.

Perhaps the question as to how much it is worth to the Onteora board to retain the native based mascot would be appropriate at this point.Perhaps it would be an appropriate question at this time, except Onteora board leader Joe Doan has already indicated a willingness to venture any amount to retain the Onteora Indian mascot (a/k/a Chief Reclining Skunk), and to fight the issue regardless who tells the district to remove the native based mascot images and representations.Race based arrogance of the nature shown in Onteora has been unknown since the Wallace States Rights/Home Rule days of the 1960’s.

Title IV of the Civil Rights Act of 1964

Segregation within public educational facilities is prohibited under Title IV of the Civil Rights Act of 1964.Segregation in education is generally considered to similar to the officially sanctioned “mirror image” conditions that existed under the separate but equal doctrine.The question concerning desegregation is, is desegregation complete if segregation is allowed within a public educational institution.Where native children are segregated, not allowed to participate in activities, by any means, and for any reason, as other similarly situated students then the institution arguably has segregated native students.

Title VI of the Civil Rights Act of 1964

A school district violates Title VI when (1) there is a racially hostile environment; (2) the district had notice of the problem; and (3) it "failed to respond adequately to redress the racially hostile environment." 59 Fed. Reg. at 11449.

The Department of Education's publication expressly states that a hostile environment can be caused by the conduct of peers. "Under this analysis, an alleged harasser need not be an agent or employee of the recipient because this theory of liability under Title VI is premised on a recipient's general duty to provide a nondiscriminatory educational environment.

The Department of Education has established a three part guideline in its publication Interpretive Guidance which courts have used as the framework for evaluating a complaint regarding a hostile racial environment.

1. Hostile Environment
The Department of Education defines a "racially hostile environment" as one in which racial harassment is "severe, pervasive or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the services, activities or privileges provided by the recipient." .

Whether a hostile educational environment exists is a question of fact, determined with reference to the totality of the circumstances, including the victim's race and age. Racial harassment creates a hostile environment if it is sufficiently severe that it would interfere with the educational program of a reasonable person of the same age and race as the victim. 59 Fed. Reg. 11449; see Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (holding that "reasonable person" in sexual harassment case brought by female plaintiff is a reasonable woman).

Moreover, racist attacks need not be directed at the complainant in order to create a hostile educational environment. 59 Fed. Reg. 11449-50. See also Patterson v. McLean Credit Union, 491 U.S. 164, 180, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) (holding that racial harassment in the workplace is actionable under Title VII); Waltman v. International Paper Co., 875 F.2d 468, 477 (5th Cir. 1989) (sexual graffiti not directed at plaintiff relevant to show [*1034] hostile work environment under Title VII); Walker v. Ford Motor Co., 684 F.2d 1355 (11th Cir. 1982) (evidence of racial harassment directed at others relevant to establish hostile work environment under Title VII).

2. Notice
The second part of the inquiry focuses on whether a district had sufficient notice of the racially hostile environment.The Department of Education's interpretation provides that a district may have either actual or constructive notice ofracial harassment. 59 Fed. Reg. 11450-51.Both have types of notice have been met, even though only one is required.

3. The School's Response
Once a school district is provided notice the district "has a legal duty to take reasonable steps to eliminate" a racially hostile environment. 59 Fed. Reg. 11450. When a district is "deliberately indifferent" to its students' right to a learning environment free of racial hostility and discrimination, it is liable for damages under Title VI. Gebser v. Lago Vista Indep. Sch. Dist., 141 L. Ed. 2d 277, 118 S. Ct. 1989, 1999 (1998) (citing City of Canton, Ohio v. Harris, 489 U.S. 378, 388-92, 103 L. Ed. 2d 412, 109 S. Ct. 1197 (1989)).

Under this standard, a district is liable for its failure to act if the need for intervention was so obvious, or if inaction was so likely to result in discrimination, that "it can be said to have been deliberately indifferent to the need." Canton, 489 U.S. at 390.In the Onteora School District the action promoting racial discrimination and/or harassment was instituted at the direct order of the board reinstating the Onteora mascot, especially given the reinstatement was in violation of existing district policy.

The District

The Board of Education of the Onteora School District, and/or the Administration of one or more of the various schools within the district has allowed, encouraged or condoned the adoption or use of likeness or resemblance of American Indians allegedly for the past 50 years (letter, Town of Olive, February, 14, 2000).

The District’s earliest known depiction of an Indian likeness is in the 1953 Onteora yearbook.Onteora, like most schools and school districts with Indian mascots adopted the mascots during the Cowboy-Indian popular days of radio drama programs and early TV.The names were not chosen to honor Native Americans they were chosen to portray the fierce savage as portrayed in period programs.

The idea to change the motivation to a more justifiable reason is an after thought and does not change the original motivation.The motivation of the adoption, retention and promotion of the Onteora Indian is shown through the changes in the description of the mascot between 1958 and 2000.

It is alleged the various mascots are used in “school spirit building” and sporting and other related activities and events as such the use is honorable, even if a particular representation or depiction was not.The district has used the likeness of one or more cartoon like depictions of American Indians are found at various places throughout the districts property including the Middle School/High School and in some elementary schools.In addition to cartoonish depictions, the Onteora mascot is subjected to routine ridicule in the schools yearbooks.As a matter of routing the districts yearbooks portray the district’s native based mascot as a mixture of a buffoon and a vicious savage.

In 1994“The Onteora Indian” is depicted in the year book as “The Indians go on the war path”, also in 1994 we see “The football team and “Chief” echo their barbaric victory roar.” In 1994 we find “OCS’s very own Indians.” (OCS Chief with Plains Indian headdress and woman in Plains Indian apparel on football field).In 1998 the OCS Indian is a body builder appearing “Indian” breaking through a brick wall with a tomahawk., and the most enduring depiction is OCS’s own Chief Reclining Skunk whose depiction was noted in the 1983 yearbook.

As expected there are attempts to justify the use of the Onteora native based mascot by comparing the districts mascot to the new Sacagawea coin.At a recent board meeting a speaker noted the U.S. Government “honored” an American Indian by placing her likeness on the new dollar coin and there was no difference between the U.S. Government’s use of a native image and the Onteora districts.There is a considerable difference between the depiction of Sacagawea and the Onteora native based mascot.

The Sacagawea project was a three year joint effort of representatives of the Native American community, numismatists, artists, educators, historians, members of Congress, US Mint and Treasury officers and employees.The end result of the project is a coin bearing a historically accurate likeness of a noteworthy person, unlike Onteora’s native based mascot which is a changing likeness ranging from absurd to obscene depending on the year.The most important difference between the Sacagawea coin and the Onteora native depiction is the new coin is not portrayed in a manner that creates a hostile racial environment in a publicly funded school system.

The President of C.A.R.E. (an organization organized with the expressed intent to elect a slate of candidates to restore the former district’s native based mascot) complained at a board meeting that outsiders were coming into the district and changing a mascot that had existed for almost half a century, is best placed in light of the 300 year history of educational history in Ulster County, N.Y.It is important to note the same comment made by Rose Ostrander was also made in the 1950’s and 1960’s by Southerners opposed to integration, there is no difference.

Native History

The Catskills region was home to a number of Indian tribes and nations, the most significant being the Esopus Indians, part of the Delaware Nation, other nations in the region include the Seneca, Muncee Tribe of the Delaware Indians, Kitchawongs, Mahicans, Mohawks, The Pachami tribe of the Wappinger Indians, Wiccapee, Shenandoah and Wappinger Indians.

The Ulster County area has a significant number of locations bearing Indian names.These names are retained names from the original Dutch, English or native inhabitants or are names given to increase the Indian lore of the area.Publicly the name Onteora is alleged to be a name of Indian origin meaning “Land In The Sky.However the name is the 1823 creation of Henry Schoolcraft.

The first colonist contact is believed to be in or near 1614, with the first settlement (Dutch) established almost 50 years later.The Ulster County area was populated by Indians from a variety of tribes.As a result of Colonist-Colonist, and Colonist-Indian wars, widespread epidemics of smallpox, and other colonist spread diseases, and Indians being subjected to other hostilities the once numerous Indian population was reduced to a fraction of its original size, and the remainder were forced from their land.

Excluding a small number of families who refer to themselves as Iroquois (Iroquois is a term for nations comprising the Iroquois Confederation including the Seneca, Oneida, Cayuga, Tuscarora, Onondaga, and Mohawk nations) that moved to the Ulster County area in the early 1900’s, we have been unable to locate any indication that any, of the once numerous, indigenous peoples who once called Ulster County and the Catskills Region home resided in the regions after the mid to late 1700’s.

The first schools in Ulster County started with the growth of Kingston.By the early to mid 1700’s Kingston was home of the first college preparatory schools in the new colonies.With a rich educational history Ulster County was Indian mascot free for over 250 years, importantly the area was also native free for almost 200 years when the Onteora District chose a native based mascot.

The earliest evidence of an Indian mascot in Ulster County is found in 1953.In a February 14, 2000 letter the Town of Olive indicated the mascot is 50 years old, there is no evidence to support this contention other than the Town of Olive’s assertion.The native based mascot chosen by Onteora was not chosen to honor natives who contributed to the culture, and communities comprising the Catskills Region.

When the native based mascot was adopted by the Onteora district even the oldest resident’s great-great-grandparents were born after the last original native inhabitants were forced from the region.What actual native culture, customs, traditions, beliefs and values are we to understand existed to be honored after a lapse of almost 200 years that somehow served as the basis for adopting the “Onteora Indian”(a/k/a Chief Reclining Skunk)?

Aside from the assertion that the adoption of a native based mascot was to honor natives, the second most popular assertion is the “Onteora Indian”(a/k/a/ Chief Reclining Skunk) has been part of the Onteora Central School District for fifty years.Are we to believe a custom or tradition that spans a number of years is somehow honorable?

Slavery existed in the United States for over 300 years, if the argument that a practice that exists for a long period of time is correct and socially acceptable, where are the calls for a return to slavery?The calls for a return to such a vile and evil practice are absent because as a nation we determined that regardless how long slavery had existed, slavery would no longer exist in the United States.

As reasonable people we understand the passage of time does not make despicable and vile traditions respectable, acceptable or justifiable.Just as with slavery, and all other vile and cruel traditions and practices, the span of time does not make the use of a native based mascot ethically, morally, or legally acceptable.

Onteora Indian Offensive?

The issue surrounding the retention of Indian mascots is tradition.There is no disputing people are comfortable with that which has been in communities for years.The premise behind mascots in sporting and other programs is to build a sense of pride, and create an image that stands for the entities sporting prowess. A sample of mascot names used by high schools, colleges and professional sports teams include, Lions, Huskies, Eagles, Hawks, Golden Eagles, Tigers, Indian (s), Tall Oaks, Sharks, Sea Lions, Redskins, Savages, Warriors, Pioneers, Minutemen, Cardinals, Patriots…

Where a race or ethnic group is relegate to the status of a mascot, and the status is shared with wild animals, plants and animals and the use of other races and ethnic groups is considered per see racial discrimination, the assignment of a race or ethnic group as a mascot is discriminatory if one race or ethnic group is treated differently than one or more other races or ethnic groups.

No mascot matter would be complete without the Notre Dame Fighting Irish being dragged into the fray.The difference between Notre Dame and Onteora are important.Notre Dame is a private institution of higher learning, educating adults, and is not a public school where children are required to attend by virtue of a compulsorily education law.Most importantly, Onteora uses a native based mascot, Notre Dame’s mascot is a Leprechaun.

A Native American Notre Dame alumni was asked about the difference between Notre Dame and the University of Illinois’ use of a native based mascot, he replied, I am a Native American, and I care about being used as a mascot, as far as the Leprechaun, I am not a Leprechaun, if you can find one, I suggest you ask him how he feels.

The national debate on the use of native based mascots in major league sports has moved from casual discussions to the legal arena.While the issues involved in the Harjo v. Pro-Football, Inc (Washington Redskins) trademark case are both similar and different than those found in public school district matters, the trademark appeal case sheds some light on the analysis of treatment of Indians as mascots.The case is currently on appeal and the final outcome may be years to come, but the basic analysis will remain a source of valuable guidance.Full text of the decision available at: http://www.oblon.com/Uspto/Ttab/1900/00/seeker.php3?21069.html

Without getting into a long discussion concerning the parallels between sexual and racial harassment and discrimination the handling of sexual and racial harassment is similar in all respects except the body of available law with respect to sexual discrimination and harassment is more plentiful in large part due to the greater number of claims and consequently cases.

The Federal courts have held it is possible for actionable sexual harassment to exist with a single act of harassment 501 N.W. 2d 155, at 158, it is doubtful a different decision will be reached regarding racial harassment, especially in an educational setting.

Fallacy of Pro-Mascot Native Supporters Touted by Mascot Supporters

The issue about who determines what is or is not offensive always comes into play in all contested mascot issues.More than 500 Indian national Native American organizations are on record as being opposed to the use of mascots, in all known instances where a Federally recognized tribe, nation or band has taken an official position on mascots the position has been against the use of mascots.

In mascot matters it is common to hear someone bring up Florida State University and the Seminole Indians.Florida State University (FSU) took the name Seminole in 1948 over the objections of the student body who choose Dolphins as the mascot. The administration overruled the students because of the pageantry, this according to FSU’s own history as published in” FSU the First 50 years.”

Contrary to popular opinion, when adopting the Seminole name FSU did not ask the tribe for its permission or blessing. In 1978 FSU asked Howard Tommie, then Seminole Tribal Chair in FL if he liked the mascot, he said "Nice horse". Missing the dry humor FSU said the comment was an endorsement of FSU’s mascot. When the farce was exposed in 1992 FSU produced part of James's letter claiming the above was an endorsement of FSU’s use of the Seminole name and FSU’s native mascot.

Historical Tactics in Support of the Racial Status Quo

Meaningful societal change is never easy to create or implement, the pattern of change is the same today as it was in years before, different race or societal issues, but they all share the same historical pattern.The same tactics used in the 1960’s to prevent meaningful change during the early years of the Civil Rights era are again being used to fight the removal of native based mascots.

During the course of mascot matters pro mascot supporters frequently seek endorsement of local or other individual natives.The general procedure is to make the individual feel as though the mascot was adopted to honor natives, and portray those seeking to remove the mascot as mean spirited anti natives.The use of individual natives in attempts to prevent the removal of mascots is not new, it is an old tool, with different victims.

A professor involved in the Civil Rights movement tells about going to Selma Alabama for the first time in early 1965 and how he was greeted by a room of local black residents telling him to go back to New York and telling him they wanted nothing to do with the NAACP or martin Luther King. The next time he saw the people from the meeting was when he was on the march into Selma, they stood on the sidelines doing nothing, years later he met the grandchild of one of these people who told him his grandmother had asked him to not come back.After the meeting the lady went home where she told the father of her grandchild the reason she did not want the people to come to Selma was she was afraid at how things would change and how years later she told her grandson how she had been tricked and how she felt sad about he actions.

The professor also related how a man told him he felt used.For years he had been ignored, he had some standing in his own community, but the white people, especially the white people in positions of authority for the most part ignored him.When the NAACP was headed for Selma, and he came out against the NAACP’s involvement in local matters the white people were his best friends. After everything was said and done he was shunned just as before. Today, we see the same events, this time it is with natives and mascot issues, same story, different victims.

Onteora Board Actions

In 1983 the Onteora School Board adopted a standard Nondiscrimination policy.The policy states:

The Board of Education supports the principle of quality educational opportunity for persons of all social, economic, and cultural backgrounds.

It reaffirms its commitment that no person in the district shall, on the basis of race, sex, color, religion, creed, age, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity sponsored, administered or funded by the Board of Education

There is no indication the Board took any action to impartially administer the adopted policy.The policy as written would preclude the use of any race or ethnicity based mascot as race and ethnicity based mascots have the potential to create an atmosphere of hostility and cause members of the effected race or ethnic groups to be uncomfortable thereby denying them the opportunity to fully participate in school district funded or sponsored activities.

On January 24, 2000 the board approved Trustee Millar’s motion stating

“Remove the Indian name and all symbols, mascot, cartoons and characters.Phase it out and allow it to fade away in a natural time-frame.The graduating class of 2000 will be the last class to use the Indian name.”

On February 7, 2000 Trustee Vanacore submitted a motion to put the removal of the Indian mascot to a popular vote, the motion failed.

On March 20, 2000 the Onteora School Board passed an additional Board Resolution dealing with making the removal of the Onteora Indian permanent stating

“…It shall be the policy of the Onteora Central School District that a race of people shall not be used as the school’s nickname, logo, mascot or symbol”

The First reading of the policy was April 10, 2000, second reading April 26, 2000 .

On June 6, 2000 a motion was made and passed stating

“BE IT FURTHER RESOLVED, that the following motion of the Board of Education of January 24, 2000, be rescinded and have no further effect in the District;

The board re-instated the district’s use of a mascot, in violation of existing district policy.

Restoration Of The Onteora Indian Mascot and the Effect Of Restoration

Restoration of the Onteora Indian is a term used by the pro-mascot supporters.The reinstitution of the Onteora Indian mascot is not a reinstitution or restoration it is an adoption of an Indian mascot and can only be viewed as an intentional adoption of a stereotype known to create a potentially hostile environment, all that is needed to progress this issue is a plaintiff, and this is not lacking.Evidence of harm caused as a result of the mascot and related and associated depictions was clearly demonstrated through personal testimony in the video tapes of district board meetings.

On April 26, 2000 the board adopted the policy stating

“…It shall be the policy of the Onteora Central School District that a race of people shall not be used as the school’s nickname, logo, mascot or symbol”

Immediately following the most recent election the new board majority clearly expressed the intent to eliminate the above provision, because as long as the above portion of the April 26, 2000 policy existed the Onteora Indian mascot can not legally exist.

The vote to restore the mascot, and revoke the district’s prior anti-racial discrimination policy was scheduled for September 25, 2000.Announcement and presentation of a negotiated resolution developed as a result of the community mediation efforts of the New York Attorney General’s offices was expected on or about September 14/15.Late in the afternoon of September 8, 2000 a decision was made by members of the board majority to expedite the restoration vote from the previously announced date of September 25 to September 11.In response to the expediting of the vote attorneys and officers of the New York Attorney General’s office, and others spoke with members of the board majority in an effort to allow the resolution process to finish.

The board majority was determined to not allow the resolution process to finish, having been fully informed that expediting the vote would derail negotiations the board voted on September 11, 2000 to revoke the district’s anti-discrimination policy thereby reinstating the mascot without any limitations.As expected the reaction to the news of the vote was negotiations ceased.The community was surprised at the board’s actions given the community effort to resolve this matter and today community is more separated now than in months prior.

Onteora, Unique in North America

There is no record of any school or other institution or entity within the United States removing an Indian mascot and adopting a policy opposed to mascots based in part or in whole on race or ethnicity that has later sought to reinstate the mascot and reverse the policy.Once the adoption of the non-discrimination policy was adopted and the admission that it is wrong to use race or ethnicity based mascots is made, the admission cannot be undone.

The important issues to note in Onteora that makes the case unique is Onteora is not just trying to restore a native based mascot, the board is also attempting to revoke a non discrimination policy to allow the district’s differential treatment of a group or classification of a race or ethnic group.This action places the board in direct conflict with Federal guidelines that follow all Federal funding and various Civil Rights acts.

Where Federal funding is provided there is a strict prohibition on recipient entities denying any person participation in any program on the basis of race, color or national origin.If the Onteora Indian mascot creates, in any degree a hostile environment for one child the district is in violation of Federal law.The Onteora Indian and the associated mascot create a hostile environment.

Where a state receives Federal funding and the state distributes the funding in combination that a duty follows not only to the recipient district but also to the distributing state to ensure compliance because both are required to certify compliance.Failure to comply with the applicable non-discrimination provisions places all related Federal funding at risk.The question that remains unanswered is how much is it worth to school districts and states to allow the perpetuation of race and ethnicity based mascots (including all names, depictions and related representations, of any type).

The proposal has been advanced to remove the Onteora Indian mascot and its associated regalia, however the name would remain.Any proposal in which the name, mascot and depictions remain is unacceptable on ethical and moral as well as legal grounds

The proposed action would not address the race or ethnicity based differential treatment issues nor does it address the hostile racial environment, as a result the problems of today would be doomed to be revisited in the future and does not provide meaningful native education to correct misconceptions that is essential to resolving incorrect or anti-native attitudes.It is important to bear in mind with five known native children currently within the district if the issue is not be resolved, it is highly likely the board will face litigation as each of the students reaches high school age.

The community would be best served to resolve this matter once and for all, remove the native based name, depictions and other representations and get on with the business of educating the district’s children.It is the job of school districts to promote quality education, not racism, in any degree, form or fashion.

Respectfully submitted,

Charles Yow

Legal Counsel

American Indian Movement

Massachusetts Chapter