Why the Redskins Are Called the Redskins

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Washington Redskins logoWith 50 United States senators signing a letter to the president of the NFL urging him to pressure Daniel Snyder, the owner of the Washington Redskins, to change the team’s name, and Congressman Henry Waxman calling for the House Energy and Commerce Committee to hold hearings on the name, it is clear that the controversy over the name “Redskins” has yet to subside.

In the Wednesday, May 27, Washington Post columnist Robert McCartney purported to rebut the Redskins’ claim that the team was named the Redskins in honor of its Native American coach William “Lone Star” Dietz (whom, it turns out, may not have been an Indian at all, but that was clearly unknown to team owner George Preston Marshall at the time.)  The source of McCartney’s proof is a July 6, 1933 AP story that quoted Marshall to the effect that he changed the team’s name from “Braves” to “Redskins” so that he could avoid confusion with the Boston Braves of baseball’s National League and so that he could continue to use the team’s new Indian head logo.

McCartney is clearly correct on that point.  The team already had a Native American name (Braves) when it signed Dietz as its coach.  The name was changed, as Marshall indicated in the above quote, because the team was moving to a new venue within the city of Boston.  (The team did not move to Washington until 1937.)

Here is the story:

*In 1932, George Preston Marshall and three partners were awarded an NFL team on the condition that it be located in Boston, where the previous NFL team had folded after the 1929 season.

*Needing a place to play, the options for the new team were limited.  Fenway Park was not available because of a city ordinance that prohibited professional sporting events on Sundays if they were within a certain distance of a church (and Fenway was); Harvard would not rent out its famous stadium to professional teams; and the Boston College field was not enclosed.  The only real option was playing in Braves Park, the home of the Boston Braves baseball team.  Moreover, the baseball Braves owner, Emil Fuchs, was a friend of Marshall’s co-owner Jay O’Brien, a well-known New York investor and playboy.

*Having decided to play in Braves Field, it made perfect sense to use the same name as the baseball team.  This practice was quite common in the early history of the NFL for teams in cities with major league baseball teams.  The pre-1932 NFL at different times featured teams with “baseball” names like the Cleveland Indians, Washington Senators, Detroit Tigers, New York Giants, New York Yankees, and Brooklyn Dodgers, as well as the Chicago Bears whose name was a variant of Chicago Cubs.  Moreover, in 1933, the year following the creation of the Braves, the league added teams called the Pittsburgh Pirates and Cincinnati Reds.  In addition, NFL teams from Buffalo, Kansas City, Hartford, and Louisville had earlier used the names of local minor league baseball teams.  Consequently, there was nothing particularly special about the new Boston team using the name Braves.

*During the 1932 season, the Braves went 4-4-2, without making any special effort to emphasize the fact that the team had a Native American nickname.  Braves Field was nicknamed the Wigwam, but that name had been used for years before the football team was created in reference to the baseball Braves.

*However, a sequence of events following the 1932 season would lead the Boston team to change both its playing field and its nickname. The first step came when Lud Wray, the team’s coach, resigned to become the co-owner of the expansion Philadelphia Eagles.  To replace Wray, Marshall hired Lone Star Dietz, a famous college coach, who was at the time the head coach of the Haskell Indian School in Kansas.

*Having hired Dietz, Marshall, who was a born-showman who had long been fascinated with Native Americans, decided to revive “Indian football.”  Coach Dietz may well have been the inspiration, since he had been a teammate of Jim Thorpe at the Carlisle Indian School, when that institution ruled college football.  Moreover, only a decade earlier, the NFL had featured all all-Indian team, the Oorang Indians, which in 1922 and 1923 had been captained by Thorpe, universally viewed as the greatest football player in American history.

*Marshall encouraged Dietz to sign Native American players—six ended up on that year’s Boston team—and he decided to add an Indian emblem to the team’s uniform and planned a variety of Native American symbols ranging from war paint on the players’ faces, to Dietz’ Indian headdress which he wore on the sidelines, to the supposedly Indian-inspired tricks plays that filled Dietz’ playbook.  These plans were in place while the team was still planning to play the 1933 season as the Boston Braves.

*Nevertheless, subsequent developments would bring the career of the Boston Braves to a sudden close.  For a variety of reasons Marshall was not happy with Braves Field, which he felt was poorly maintained by the penny-pinching Fuchs.  O’Brien had dropped out of the ownership group after the 1932 season, and Marshall apparently did not get along with Fuchs, whom he felt was also overcharging the football team when it came to rent.  (Fuchs did not own Braves Field and was subject to an onerous master lease himself.)

*That same summer, Boston repealed the “close to a church” ordinance, just as substantial renovations to Fenway Park were completed.  Given the opportunity to move to a newer, nicer park at less rent, Marshall signed a new lease with Tom Yawkey, the owner of the Red Sox and Fenway Park that guaranteed that the football team would play the 1933 season in a new home.

*Given that he was no longer a subtenant of the Braves, he had very little incentive to have his football team continue to play under that name.  On the other hand, he was committed to the idea of bringing back Indian football, but the pool of Indian names was limited.  The Cleveland Indians had played in the NFL as late as 1931, and that name appeared to be informally reserved for a future Cleveland team.  Consequently, Marshall chose the name Redskins, in part, one suspects, because of the way that it echoed “Red Sox.”

*In the summer of 1933, the term Redskins was widely viewed as a synonym for Indian and as no more or no less pejorative than names like Indians, Braves, Warriors, or Chiefs.  Recent events have made it clear that many Americans today, both Indian and non-Indian, view Redskins as an objectionable name.  However, that is a consequence of much more recent linguistic changes and had nothing to do with the decision to adopt the name Redskins in 1933.

A fuller account of this story and the history of Native American team names in pre-World War II American can be found here  (http://scholarship.law.marquette.edu/facpub/564/) .

Adopting Veronica

Posted on Categories Family Law, Federal Indian Law, Public1 Comment on Adopting Veronica

Recently I wrote about the U.S. Supreme Court decision in which the Court declared that a Native American father was not covered by the Indian Child Welfare Act’s procedures for TPR because he had abandoned the child before her birth, and the Court stated that ICWA only protects existing families and their relationships. SCOTUS remanded the case to the South Carolina courts to decide the future custody of the child. Last week, the South Carolina Supreme Court found that the couple seeking to adopt Baby Girl – named Veronica – was the only party properly seeking her adoption, and ordered the Family Court to finalize the adoption.

So what happens now? It appears that Veronica will be transferred almost immediately, which is somewhat unusual. Normally, a court would hold a hearing to determine the best interests of the child, and might gradually re-introduce the child to her adoptive parents since, after two years in Oklahoma with her birth father, little Veronica might not feel comfortable moving back into the Capobianco home in South Carolina. In addition, under so-called “grandparent visitation” statutes, the birth father might be awarded some visitation rights. But here, where the adoptive parents and the biological father have fought bitterly for almost Veronica’s whole life (and where they live half a continent away from each other), shared custody might not be a viable option. Continue reading “Adopting Veronica”

When Did Slavery Really End in the United States?

Posted on Categories Constitutional Law, Federal Indian Law, Legal History, Public5 Comments on When Did Slavery Really End in the United States?

During the 2012-2013 academic year, Marquette University has sponsored “The Freedom Project,” which was described at the outset as “a year-long commemoration of the Sesquicentennial of the Civil War that will explore the many meanings and histories of emancipation and freedom in the United States and beyond.” Much of the recent focus has been upon the Emancipation Proclamation, which was issued in its final form by President Abraham Lincoln on January 1, 1863, an event described in impressive detail by Professor Idleman in an earlier post.

An interesting question rarely addressed is whether either the Emancipation Proclamation or the subsequently adopted Thirteenth Amendment to the Constitution applied to “Indian Territory.”

By Indian Territory, I refer to that part of the unorganized portion of the American public domain that was set apart for the Native American tribes. More specifically, I use the term to refer to those lands located in modern day Oklahoma that was set aside for the relocation of the so-call “Civilized Tribes” of the Southeastern United States: the Cherokee, Chickasaw, Choctaw, Creek, and Seminole.

These tribes were the only Native American groups to formally recognize the institution of African-slavery. As Southerners, the Civilized Tribes had accepted the institution of African-slavery, and at the outset of the Civil War, African-American slaves made up 14% of the population of Indian Territory occupied by the civilized tribes.

As it turns out, neither document applied to Indian Territory, and consequently, slavery survived in that part of the United States for several months after it was abolished everywhere else with the ratification of the Thirteenth Amendment in December, 1865.

In 1861, the existence of slavery and a common “southern” heritage, combined with a history of disappointing dealings with the United States government, led the Civilized Tribes to side with the Confederacy rather than the Union. Although the tribes’ effort to secure admission to the Confederate States of America as an “Indian” state failed, each of the five Civilized Tribes entered into treaties with the Confederacy that at least kept open the possibility that they might someday be directly incorporated into the new nation.

(Less well-known is that the Confederacy also entered into treaties with the Comanches, Delawares, Osage, Quapaws, Senecas, Shawnees, and Wichitas.)

Many Civilized Tribe members served in uniform in the Confederate Army—and while some individual Native Americans fought for the Union—the loyalties of the tribes was primarily to the South. Most famously, the last Confederate general to surrender his troops to the Union Army was the Cherokee Stand Watie, who commanded an all-Indian brigade.

The Emancipation Proclamation by its own language appeared not to apply to Indian Territory, as it was specifically limited to “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States.” Since Indian Territory was not a “state,” the Proclamation had no impact in Indian Territory, even if they were arguably in rebellion against the national government.

However, the year before, the United States Congress had enacted legislation abolishing slavery in the “territories.” Act of June 19, 1862, ch. 112, 12 Stat. 432. (According to the 1860 Census, small numbers of slave were present in Utah, Nevada, and Nebraska territories, areas that had been opened to slavery by the Compromise of 1850 and the Kansas-Nebraska Act, as well as the Indian-owned slaves in the area that would like become the state of Oklahoma.)

Was it possible that this act had outlawed slavery in Indian Territory? It seems unlikely, given the unique status of the Indian Territory. Although referred to as a “territory,” “Indian Territory” (or “Indian Country” as it was also called) had never been organized as a formal territory (even though it was apparently treated as one for census purposes in 1860.)

Moreover, territories were intended to be proto-states, but in 1862, there is no evidence that anyone in the Congress imagined that the Indian Territory, home to semi-sovereign Indian Tribes, would someday be a state. The problem of Native American tribes coexisting with state governments was what had made the Trail of Tears necessary three decades earlier. Consequently, it was never an actual territory and thus was not one of the areas covered by the 1862 act.

Moreover, subsequent events involving the Cherokees suggest that Native Americans in Indian Territory did not believe that either the 1862 Act or the Emancipation Proclamation had ended slavery in their jurisdiction. In 1862, John Ross, the president of the Cherokee nation, broke with the Confederacy and cast his lot with the Lincoln Administration. Although a majority of Cherokee remained loyal to the Confederacy (and pro-slavery), Ross was able to use his influence on the National Council of the Cherokee Nation to repudiate the treaty with the Confederacy and to abolish slavery in February 1863, slightly more than a month after the issuance of the Emancipation Proclamation. (Pro-Confederate Cherokee, who were concentrated in the southern part of the Cherokee lands, ignored these actions.)

The National Council’s 1863 decision to abolish slavery, if nothing else, illustrated the beliefs of pro-Union Cherokees that neither to Abolition of Slavery in the Territories Act of 1862, nor the Emancipation Proclamation had changed to status of slaves in Indian Territory.

Because of the widespread view that the Tribes were independent sovereigns, physically located in the United States, but not part of the United States, it also seems unlikely that the drafters and ratifiers of the Thirteen Amendment understood that it would end slavery in Indian Territory.

Moreover, the language of the Thirteenth Amendment itself seems to rule out application to the Civilized Tribes. The somewhat awkwardly worded amendment provides that it applies “within the United States, or any place subject to their jurisdiction.” The problem is not with the use of “their.” Until the 1870’s, the United States was commonly referred as a plural noun, even when one was talking about a single entity. .

The problem is that Indian Territory was not within the “jurisdiction” of the United States as that term was understood in the 1860’s. Given that the United States government used the international law device of treaties to deal with all Indian Tribes, including the Civilized Tribes, the Lincoln Administration continued the practice of treating the Indian tribes as though they were separate sovereigns, outside the jurisdiction of the United States.

The Fourteenth Amendment, enacted in Congress the following year, had a similar disclaimer: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States …” which provided a continuing rationale for treating native-born tribal Indians as non-citizens.

In fact, in 1866, the United States addressed the slavery in Indian Territory issue by entering into new treaties with each of the Civilized Tribes (although the treaty with the Choctaw and the Chickasaw was a joint treaty). Until these treaties, which were signed between March and July and proclaimed in July and August, only the Cherokee had taken steps to abolish slavery. However, in each of the 1866 treaties the tribal signatory acknowledged that slavery would no longer be recognized as a legal institution by the tribe.

If we simply go by the dates on which the Tribes ratified these treaties, slavery in the continental United States came to an end as a legal institution on June 14, 1866, when the Creek Tribe agreed to abandon African-American slavery. The was, somewhat ironically, the day after Congress approved the Fourteenth Amendment.

Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Posted on Categories Criminal Law & Process, Federal Indian Law, Public, U.S. Supreme Court1 Comment on Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. The purpose of this post, and of the series of which it is a part, is to identify and examine such anomalies in an effort to acquaint readers with the metes and bounds of Federal Indian Law, while shedding some light on the origins and perhaps the future of this unique legal realm.

The prior post examined one such anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. In this, the second installment in the series, another topic of significant contemporary interest will be surveyed. This is the oddly diminished character of Indian tribal sovereignty and, in particular, the extent to which tribes, in their own territories, lack criminal and civil authority over non-Indians or non-tribal members.

The capacity to enact and enforce laws is, of course, one of the hallmarks of sovereignty within the Western political tradition. This includes both criminal laws and civil laws, the latter often being divided into powers of regulation, taxation, and adjudication. It is typically accepted, moreover, that the reach of a sovereign’s laws extends along two axes: citizenship and territory. That is, the sovereign has the authority to govern not only its citizens but also all others who enter its territory. Thus, for example, inquiries into the jurisdiction of courts over a person or his property ordinarily entail an examination of the person’s citizenship and/or the relationship between the person’s conduct or property and the territory of the sovereign to which the courts belong.

In recent decades, however, Indian tribal sovereignty has increasingly been confined to a single axis—that of citizenship—leaving tribes largely powerless to enforce their laws against non-Indians who, within the tribe’s territory, commit criminal conduct or engage in activities that would normally be susceptible to regulation, taxation, or adjudication. Perhaps surprisingly, the institution primarily responsible for this diminishing conception of tribal sovereignty is not Congress, which the Supreme Court has repeatedly described as having “plenary power” over Indian affairs, but rather the Court itself. Continue reading “Legal Anomalies in Federal Indian Law, Part II—Tribal Jurisdiction Over Non-Indians”

Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Posted on Categories Constitutional Interpretation, Constitutional Law, Federal Indian Law, Public, Race & Law3 Comments on Legal Anomalies in Federal Indian Law, Part I—Equal Protection

Federal Indian Law—the legal provisions and doctrines governing the respective statuses of, and relations among, the federal, state, and tribal governments—is replete with seeming anomalies when compared to the background of typical domestic law in the United States. Such anomalies or aberrations, though frequently noted, have seldom if ever been systematically delineated in cases or in legal scholarship. The purpose of this and succeeding blog posts is to identify and examine several of these anomalies, the hope being that readers will gain a better sense of the unique topography of Federal Indian Law and at least some of the reasons that have brought it about.

Examined in this first post will be one such apparent anomaly, namely, the permissibility of the government’s differential treatment of Indian tribes and their members despite the U.S. Constitution’s guarantee of equal protection. This issue goes to the heart of Federal Indian Law, which is largely embodied as statutes in Title 25 of the U.S. Code (denominated “Indians”) and implemented through rules and regulations in Title 25 of the Code of Federal Regulations (also denominated “Indians”). To the extent that the classification of “Indian” ordinarily if not always includes a component of race, ethnicity, ancestry, or perhaps national origin, its use in the federal Code and Regulations—including its derivative use in judicial opinions—would seem presumptively to run afoul of constitutional as well as statutory proscriptions against discrimination on the basis of race, ethnicity, ancestry, and the like. After all, were one to encounter a Title of the U.S. Code designated “African Americans” or “Latinos” or “Germans,” an eyebrow, if not two, would almost certainly be raised in response. Continue reading “Legal Anomalies in Federal Indian Law, Part I—Equal Protection”

Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Posted on Categories Constitutional Law, Criminal Law & Process, Federal Indian Law, PublicLeave a comment» on Effective Assistance of Counsel and Tribal Courts—A Different Standard?

Virtually none of the U.S. Constitution’s guarantees or prohibitions applies to the actions of Indian tribal governments when those governments are exercising their inherent or retained powers. For this reason, among others, Congress in 1968 passed the Indian Civil Rights Act (ICRA), 25 U.S.C. §§ 1301-1303, which imposes on tribal governments most though not all of the guarantees found in the Bill of Rights and 14th Amendment. After almost 45 years, however, it remains uncertain whether or to what extent ICRA’s statutory guarantees must parallel the interpretations given to the respective constitutional guarantees on which they are based.

Among ICRA’s original provisions is a command that “[n]o Indian tribe in exercising powers of self-government shall . . . deny to any person in a criminal proceeding the right . . . at his own expense to have the assistance of counsel for his defense . . . .” This, of course, is an analog to the 6th Amendment guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence,” which the U.S. Supreme Court has interpreted as requiring “reasonably effective assistance,” Strickland v. Washington, 466 U.S. 668, 687 (1984), by “an advocate who is . . . a member of the bar,” i.e., a licensed attorney. Wheat v. United States, 486 U.S. 153, 159 (1988).

In the recent case of Jackson v. Tracy, No. CV 11–00448–PHX–FJM, 2012 WL 3704698 (D. Ariz. Aug. 28, 2012), a federal district court has held that ICRA’s assistance-of-counsel guarantee requires neither that one’s advocate be a licensed attorney nor that the advocate be held to the standard of a reasonably effective attorney. Continue reading “Effective Assistance of Counsel and Tribal Courts—A Different Standard?”

The Civil Jurisdiction of Indian Tribes

Posted on Categories Civil Rights, Congress & Congressional Power, Federal Indian Law, Public3 Comments on The Civil Jurisdiction of Indian Tribes

This is the fourth in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights; the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection; and the third explored the criminal jurisdiction of tribes. This post will examine the civil jurisdiction of tribes, both over members and especially over non-members, in each its three major forms: regulation, taxation, and adjudication.

As noted in the last post, tribal jurisdiction (not unlike federal and state jurisdiction) is uniquely limited in a manner that reflects the place and circumstances of tribes on the American legal landscape. In particular, each tribe is said to retain its original or inherent jurisdiction—the sovereign authority possessed prior to European contact and the subsequent formation of the United States—except insofar as such jurisdiction has been (1) relinquished or ceded by tribe itself through a treaty or other agreement, (2) expressly abrogated or taken away by Congress, or (3) deemed by the judiciary, especially the U.S. Supreme Court, to have been implicitly lost by virtue of the tribe’s historical circumstances and contemporary status. Continue reading “The Civil Jurisdiction of Indian Tribes”

The Criminal Jurisdiction of Indian Tribes

Posted on Categories Criminal Law & Process, Federal Indian Law, Federal Law & Legal System, Federalism, Public1 Comment on The Criminal Jurisdiction of Indian Tribes

This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments. Continue reading “The Criminal Jurisdiction of Indian Tribes”

American Indians and Equal Protection

Posted on Categories Civil Rights, Federal Indian Law, Public, Race & LawLeave a comment» on American Indians and Equal Protection

This is the second in a series of posts addressing some of the most commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post addressed casinos, hunting and fishing rights, and taxes. This second post, unlike the first, is devoted to just one question, namely, why doesn’t the unique legal treatment of Indian tribes or their members violate the Constitution’s guarantee of equal protection? Continue reading “American Indians and Equal Protection”

Answers to Some Common Questions About American Indians

Posted on Categories Federal Indian Law, Federal Law & Legal System, Public, Wisconsin Law & Legal System1 Comment on Answers to Some Common Questions About American Indians

This blog is written largely for the benefit of non-Indians, readers who have no affiliation with one of the hundreds of federally recognized tribes, eleven of which are found in Wisconsin.  I teach a course on federal Indian law at Marquette’s law school, and the questions that follow are just a few of the ones that I often encounter personally or hear in public discussions. Continue reading “Answers to Some Common Questions About American Indians”