Maine has become the first state in the union to ban the use of Native American caricatures as mascots in public schools, which many say amount to a racist mockery of America's first peoples, in what indigenous rights advocates hail as a sign of a growing national movement. Although legal experts believe that the ban is constitutionally sound, citing recent precedent, some disagree over whether bans are in the spirit of the First Amendment and the best means of blocking offensive depictions of Native Americans.
Maine Governor Janet Mills signed a bill this month barring the state's public schools "from having or adopting a name, symbol or image that depicts or refers to a Native American tribe, individual, custom or tradition and that is used as a mascot, nickname, logo, letterhead or team name of the school."
Mills framed the law as a way to avoid the unintentional denigration of Native American peoples. "While Indian mascots were often originally chosen to recognize and honor a school's unique connection to Native American communities in Maine, we have heard clearly and unequivocally from Maine tribes that they are a source of pain and anguish," Mills said in an official press statement. "Our people, communities, and understanding and respect for one another are Maine's source of pride and it is time our symbols reflect that."
Local Native Americans disagreed that the mascots ever served to honor their nations. "The argument has always been that 'we are honoring you,' by passing this legislation the State of Maine is truly honoring Native Americans," said James Francis, Penobscot Nation's Tribal Historian, in the same official statement.
Policies like Maine's follow decades of back-and-forth arguments between Native American rights advocates and local communities that dismiss arguments against mascots as "just so much 'political correctness,'" according to Walter Fleming, professor of Native culture and history at Montana State University. "In many of the smaller communities, the sports team names, logos, and mascots are a strong part of the local identities, and change is painful for those schools to even consider," he adds. "Therefore, policies that are enacted at the state level, as in Maine, are likely to be the only mechanism that would facilitate a change, since it is unlikely that schools would voluntarily adopt a change."
Maine's ban follows years of public outrage over Native American mascots and team names that has frequently targeted more visible, privately owned teams. The Washington Redskins and Cleveland Indians have fought calls in recent years from Native American and social justice advocates to stop using Native American words and caricatures to brand their teams. The Washington Redskins' legal representation has stood by the name, citing First Amendment protections. Following pressure from the public, the Cleveland Indians recently stopped the use of so-called Chief Wahoo on player uniforms but continue to sell merchandise bearing the character's likeness.
The action in Maine is the latest sign that a movement to demand long-fought sovereignty rights and civil liberties for Native Americans is gaining traction. "This action suggests that Native peoples are beginning to recognize their political strength to facilitate change," Fleming says. "This is part of a growing interest on behalf of Native people to promote change where a generation ago such changes were not thought possible. There are other allied movements, if you will, like changing Columbus Day to Indigenous Peoples' Day, or ridding offensive names from the landscape."
Pacific Standard has reported on a growing push by Native American rights advocates to right historical and ongoing wrongs against their nations. Activists are ramping up efforts to guarantee their communities access to the polls in the already hotly contested 2020 presidential elections amid concerns that state voting authorities are using recently enacted voter identification laws to disenfranchise Native communities that traditionally vote for Democratic candidates. They are also calling for the formal recognition of historical massacres against their ancestors, after President Donald Trump appeared to make light of their slaughter.
Flemming observes that, while some authorities are addressing concerns over Native American-themed mascots at the state level, the reverse is also true. In 2013, then-Governor of Wisconsin Scott Walker signed a law making it harder for the public to pressure teams over names, requiring a petition for the state to review such complaints where a single complaint had once been sufficient.
"We hope [Maine] is the example that shows the nation the importance of how harmful these depictions can be to our students and shows that the sky will not fall when we move away from these images," says Native American Rights Fund advocacy group staff attorney Matthew Campbell.
Constitutional law experts explained that there aren't likely to be any formidable challenges to Maine's decision. In part this is because there is no practical grounds for a case: The last Maine high school to make reference to Native Americans in their sports team branding retired their "Indians" moniker this year. But experts also believe there isn't any constitutional grounding for a challenge either.
"There are no First Amendment problems when a state government tells local government entities—such as school boards—what to say and what not to say," explains Eugene Volokh, a University of California–Los Angeles law professor who specializes in free speech law. "If a state sought to do this to private schools or private universities, that would be unconstitutional. But state and local university teams are under state government control."
Other experts agree. "Because this appears to be government deciding what symbols and mascots will be permitted for the government's own schools, it is permissible, just as it was permissible, to take a recent Supreme Court case, for Texas to prohibit the Confederate flag on vanity license plates," says Fred Schauer, a law professor specializing in the First Amendment. Schauer refers to 2015 Supreme Court case Walker v. Texas, in which the Court sided with Texas in barring a group from ordering Confederate flags on their license plates.
"While there is a colorable First Amendment issue here, it's quite possible that Walker v. Texas would apply if a challenge were brought," says Nicole Ligon, supervising attorney and lecturing fellow at the Duke Law School's First Amendment Clinic. "In other words, because the Maine statute only concerns public schools, the speech at issue may be considered government speech. Such speech would be outside the scope of First Amendment restraints because the government gets to control its own expression pursuant to the government speech doctrine."
The legality of Maine's ban aside, some say it is questionable whether the ban comports with the First Amendment. "It certainly feels as though these bans fly in the face of First Amendment principles despite good intentions," Ligon says. "Regulating and restricting speech merely because it is offensive does not follow the spirit of the First Amendment." Ligon cited Matal v. Tam, a Supreme Court case in which the Justices upheld a lower court decision that a statute banning disparaging trademarks was unconstitutional, because it violated the First Amendment.*
Whether other states will follow Maine's lead remains to be seen, but Native American rights advocates heralded the development as a sign of things to come. "We are hopeful that this does raise the awareness around this issue and start a trend away from these depictions," Campbell says. "This is just one aspect of the broader fight to protect our rights and recognize us as peoples."
*Update—June 3rd, 2019: This article has been updated to clarify Ligon's quotation.