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Megan Rowe

U.S. Amateur Sports Law
Spring 2014
April 28, 2014
Improving Athletic Opportunities for
Native American Students in Public Schools
Native American tribal schools need to be supported in implementing athletics programs
for the purpose of improving the quality of education for the students. Currently, Native youths
suffer from poor test performance, lack of attendance, frequent retention (being held back), high
dropout rates, and lack of college admission. Further, despite a long cultural history of athletic
participation and achievement, Native Americans are substantially underrepresented in collegiate
There are many programs aimed generally at improving Native primary and secondary
education, but studies show that spending more money on academics does not necessarily
increase student academic performance. What has been shown to alleviate a wide range of
educational and social problems in student populations, however, is strong athletics programs.
Therefore, this paper does not advocate for more federal funding but a federal policy directive to
encourage tribal governments to use federal funding for athletic programs.
The History of Native American Schools and Athletics
Throughout human history, sports have played an integral role in educating children.
Isocrates opined in his ancient speech Antidosis that “ physical training for the body, of which
gymnastics is a part, and, for the mind, philosophy…put forward a more intelligent mind and
prepare the body to become more useful.”
He believed that pedagogy was both a mastery of
physical training and mindful philosophical study. In modern times, it is generally recognized
that sports play an important role in teaching children morality, social skills, and “to survive and
enjoy the competitive experience.”
Sports are used not only as a means to teach children ethics
such as teamwork, cooperation, sportsmanship, and competitiveness, but are for the purpose of
developing a child's holistic being.
Today, the architects of modern jurisprudence have opined that “[t]o hold [sports as] less
fitted for the ultimate purpose of our public schools, to wit, the making of good citizens,
physically, mentally, and morally, than the study of algebra and Latin, is an absurdity.”
according to the courts sports have the potential to shape public school students into citizens just
as academic studies do. In modern times, it is generally recognized that sports play an important
role in teaching children morality, social skills, and “to survive and enjoy the competitive

Further, social scientists believe that sports are a universal human practice which “cut[]
1 Isocrates, Antidosis.
2 Martin Lee, Coaching Children in Sport: Principles and Practice. (1st ed. 1993) at 3.
3 Alexander v. Phillips, 254 P. 1056, 1059 (Ariz. 1927).
4 Martin Lee, Coaching Children in Sport: Principles and Practice. (1st ed. 1993) at 3.
across national and cultural differences and, like an ideology, provide[] a set of beliefs and values
which are both idealistic and prescriptive.”
Sports can be seen across all human cultures and are
universally used as a means to impart upon children social and cultural ideologies, as if the sport
were a mirror for real society.
Historians have confirmed that like most other human cultures, pre-Columbian Native
North Americans, not surprisingly, highly valued the role of sports in their culture, specifically in
the education of children.
One author remarks that Native culture viewed sporting activities as
an important tool for shaping the “physical, cultural, and spiritual characteristics of the
Early Native Americans played sports with balls, nets, and sticks, participated in
running races and betting games, and used childhood play to imitate real life adult work.
Before the arrival of Europeans, the immediate tribal community was of course the
primary source of education for a Native youth.
Tribal members, especially elders, raised
children in a way that reflected the community's unique cultural character.
However, starting in
the 1890s and continuing through the 1960s, the United States federal government took many
Native Americans out of their familial homes and tribal communities and placed them into
federally-run boarding schools.
These institutions aimed to forcefully assimilate Natives into
European American culture through education from primary school into college.
5 Peter James Arnold, Sports, Ethics, and Education (1st ed. 1997) at 3.
6 Joseph B. Oxendine, American Indian Sports Heritage. (1st ed. 1988) at 121.
7 Id.
8 Id.
9 Id.
10 Id.
11 2 John Bloom, To Show What an Indian Can Do: Sports at Native American Boarding Schools (2d ed. 2000) at
U.S Comm'n on Civil Rights, A Quiet Crisis: Federal Funding and Unmet Needs in Indian Country (2003) at 84.
12 Bloom at xii.
U.S Comm'n on Civil Rights at 84.
unfortunate goal of these schools was to erase Native culture and produce more 'civilized'
They used physical training as one of many methods of assimilation.

At first the schools used basic marching and drill exercises but eventually expanded,
allowing for recreational activities.
Soon, male students began demanding organized sports and
razed fields to play unsanctioned games.
Then, just before the turn of the century, football
became popular in mainstream American culture and with the support of many student athletes
the boarding schools adopted the sport.
Soon football became “source of pride for students…a
resource for pleasure, and an instrument through which they creatively constituted and
reformulated their identities.”

By the mid-twentieth century, federal Native American boarding schools had successfully
competed in football against Ivy League schools.
Astonishingly, the boarding schools had
produced “such world famous athletes as [Jim] Thorpe, nationally ranked football teams,
regionally dominant girls' and boys' basketball teams, [] highly rated boxing teams” and
successfully competing track and lacrosse teams.
Examples of stellar athletes hailing from these
boarding schools are “Hall of Fame baseball pitcher Charles Albert 'Chief' Bender, football star
Jon Levi, [] distance runner Louis Tewanima[,]” Olympic gold medalist runner Billy Mills and
many others.
Native Americans had an awesome emergence onto the new American sports
13 Id.
14 Bloom at xii.
15 Id. at 4.
16 Id.
17 Id. at xii.
18 Id.
19 Id. at 5.
20 Id. at xiii-xiv.
21 Id. at xii;
Encyclopedia Britannica 'Billy Mills' at (last
visited April 7, 2014);
scene in the late-nineteenth century and maintained a presence into the 1950s. Further, many
sports played today in America and in the Olympics have their roots in Native American games.
Ice and field hockey, the overhand swimming stroke, basketball, lacrosse, soccer, baseball,
tobogganing, and three-day marathons all have their stemmed from Native American culture.

However, despite these cultural contributions and the awe-inspiring record of athletic
participation and achievement at the outset of American popular sport, Native Americans in the
latter half of the twentieth century have been consistently underrepresented in amateur athletics.
In an article entitled The Disappearance of the Great American Athlete, the author writes that
Native Americans have been almost entirely missing from college and Olympic sports for over
fifty years. In college athletics, although first peoples account for 1.5 percent of the population of
the United States, they have made up less than 0.4 percent of National Collegiate Athletic
Association participants, according to studies spanning over the past twenty years.
“[w]hile the number of student-athletes is increasing, the representation of American Indians
within that population is not increasing proportionally.”
Similarly, Native Americans have had a low turnout for the recent Olympics: “from 1972
until 1996, no American Indians competed in the Olympic games and out of the dozen or so that
have ever competed, most came early in the 20th century.”
This underrepresentation is unique
to Native Americans because “[j]ust about every other ethnicity or race has numerous current
Brad M. Gallagher, The Disappearance of the Great American Indian Athlete, 24-Fall Ent. & Sports Law. 1
22 Gallagher at 15 (citing Suzy Chaffee, Olympians Honor Tribal Gifts to Olympics at Athens, (last visited April 7, 2014)).
23 Gallagher at 16.
24 Id.
25 Id.
athletes to identify with on the professional, Olympic[,] or collegiate level.”
The author cites
“poor education, bias and prejudice in sporting circles, poverty and a general lack of opportunity,
encouragement and support from within their own culture and from the outside world” as the
roots of this problem.
Indeed, many Natives live in areas in which “economic and social conditions resemble the
emergency states associated with natural disasters which require federal intervention.”
marker of the failings of the government in its relationship with Native Americans is poor
educational achievement.
Today, not only are Native Americans the poorest segment of
American society, but the government does not provide Native students the same educational
According to a 2003 study by the United States Commission on Civil Rights,
Native American students “routinely face deteriorating school facilities, underpaid teachers, weak
curricula, discriminatory treatment, outdated learning tools, and cultural isolation.”
conditions cause Native students to score lower on standardized tests than any other racial or
ethnic group and are more likely to drop out of school.
Further, approximately twenty four
percent of Native American students have been held back as of 2001.
Less than half as many
Native students were identified for gifted programs than those in student bodies as a whole.
The problems of Native schools stem from a failure of federal government programs aimed
26 Id. at 20.
27 Id. at 16.
28 U.S Comm'n on Civil Rights at 1.
29 U.S Comm'n on Civil Rights at ix.
30 Gallagher at 17;
See generally U.S Comm'n on Civil Rights.
31 U.S Comm'n on Civil Rights, at xi, 85-87.
32 Id.
33 Allison M. Dussias, Let No Native American Child be Left Behind: Re-envisioning Native American Education
for the Twenty-First Century, 43 Ariz. L.Rev. 819 (2001) at 868.
34 Id.
at Native education. While other public schools rely primarily on state and local property taxes,
“Indian schools and Indian programs across the nation are totally reliant on the level of federal
funding received to ensure that they meet even minimal standards.”
Schools on Indian
reservations are on tax-exempt land and thus are unable to raise funds from property taxes like
other public school districts.
Thus, schools on reservations are funded by many different federal
programs, the biggest contributors being the Department of Education's Office of Indian
Education and the Bureau of Indian Affairs' Bureau of Indian Education.

As of 2001, there are approximately 600,000 American Indian and Native Alaskan children
enrolled in public elementary and secondary schools in the Unites States.
About ten percent of
Native American students attend schools directly run by the Bureau of Indian Education (called
BIA schools) and the majority of the remaining 90 percent attend public tribal schools funded by
the federal government.
While the former group enjoys higher per student expenditures than the
national average for public schools, and the latter suffers from considerably lesser resources than
average, both still experience low test scores and low graduation rates.

Alongside inadequate federal programming, substance abuse and crime plague Native
35 Id. at 83;
See also United States General Accounting Office. Report to Congressional Requesters, BIA and DOD Schools
(September 2001).
36 National Congress of American Indians. A Call to Honor the Promises To Tribal Nations in the Federal Budget.
April 19, 2013, 5-6 (citing American Association of School Administrators, Federal Public Education Revenues
and the Sequester, November 2012.).
37 Raymond Cross. American Indian Education: The Terror of History and the Nation's Debt to the Indian People,
21 U. Ark. Little Rock L. Rev. 941 (1999) at 970-972.
38 United States General Accounting Office at 2;
Cross at at 970.
39 United States General Accounting Office;
Cross at 972
40 United States General Accounting Office;
U.S Comm'n on Civil Rights at xi, 85-86.
communities and are most definitely harming the educational experiences of children. Students
are impacted by alcohol and substance abuse which “borders on epidemic in Native
Students undoubtedly feel the effects of crime in their communities: first peoples
“are the victims of crime at more than twice the rate of all U.S. residents[,] the rate of
victimization of Native American women is 50 percent higher than the next highest group[, and
yet] law enforcement in Native communities remains inadequate.”
Native Americans are two-
times overrepresented in the criminal justice system and often are put in overcrowded jails with
deplorable conditions.
Therefore, not only are Native schools inadequate, but severe cultural
and social issues cause Native children undue stress and are a major contributor to poor academic
The solutions to these problems begin in the schoolhouses. Studies have consistently shown
that extracurricular activities such as sports reduce crime and substance abuse, improve grades,
attendance, and benefit physical, emotional, and mental health.
Students on athletic teams
oftentimes sign team pacts agreeing not to use drugs, alcohol, or cigarettes and the high physical
demands require that students avoid performance-harming substances and attend school and
practice regularly.
Students in minority areas with high poverty rates have been shown to
especially benefit from school athletic programs, exhibiting higher grade point averages,
attendance rates, successful graduations, and applications to higher education than students
similarly situated not participating in athletics.
41 Id. at 70.
42 Id. at 68-69.
43 Id. at 69.
44 National Federal of State High School Associations. The Case for High School Activities (2007).
45 Id.
46 Merkel at 399.
Further, lawmakers have discovered that increasing expenditures on athletic programs in
public schools improves academic performance more than increasing spending on academics.

This makes sense considering that “only about ten percent of a person's waking hours from birth
to age 18 are spent in a classroom[,]” whereas many students in low-income schools spend
around forty hours per week after school and on weekends in totally unsupervised, unstructured
While overworked parents of low-income students “are forced to focus on
providing the basics for their children,” schools need to provide children the structure of
extracurricular activities such as athletics.
After-school athletic programs and weekend sports
games provide students structured and supervised activities that have comparable benefits to
academic programs.
Modern sports, many of which have their roots in Native culture, should be revitalized as a
tool to engage Native children in educational programs. The Commission on Civil Rights has
declared that Native students “are more likely to thrive in environments that support their cultural
Programs that foster Native culture “motivate students, support improved academic
performance, promote a positive sense of identity and self, stimulate favorable attitudes about
school and others, and earn the support and positive perception of the community toward the
Thus, a solution to the social and educational issues facing modern Native
communities is the improvement and emphasis of athletic programs in public tribal and BIA
47 Id.
48 Id. at 400-401.
49 Id. at 404.
50 Id.
51 U.S Comm'n on Civil Rights at, 87.
52 Id.
Legal Background
Early into American jurisprudence arose legal discrimination against Native Americans
that would persist into modern times. In 1823 the United State's Supreme Court opined in
Johnson v. M'Intosh that the new federal government had the right to conquer the land that Native
Americans had held since time immemorial.
Several years later, the Supreme Court defined
government interaction with Native peoples as a trust relationship, the latter being beneficiaries
and tribes being distinct sovereign political entities free from state law.
These trust obligations
are an “exchange for land and in compensation for forced removal from [Native Americans']
original homelands.”
These duties to first peoples are “a matter of both moral and legal
imperative” for the federal government.
Thus, the federal government has established laws, treaties, jurisprudence, and customs
aligned with this notion of a trust relationship.
The earliest piece of legislation on the matter of
Native education was the Northwest Ordinance of 1787 which promised that the federal
government would encourage “[r]eligion, morality, and knowledge” upon Indians as these are
“necessary to good government and the happiness of mankind, schools, and the means of
Thus, this ordinance laid the groundwork for the assimilation programs enacted by
the federal government in the following century.
53 Johnson v. M'Intosh, 21 U.S. 543 (1823).
54 Cherokee Nation v. Georgia, 30 U.S. 1 (1831);
Worcester v. Georgia. 31 U.S. 515 (1832).
55 U.S Comm'n on Civil Rights, at ix.
56 Id. at 1.
57 Id.
58 Article III of the 1787 Northwest Ordinance Act of Aug. 7, 1789, ch. 8, art. 12, 1 Stat. 50, 52.
At the outset of the federal education programs, specifically the boarding schools,
“[e]qual educational opportunity was not among the goals in the effort to assimilate Native
Americans into Euro-American society.”
Up until the 1920s, while white students were taught
reading, writing, and mathematics, Native students learned trades, such as blacksmithing,
cooking, and farming.
Even with the practical skills from this education, Native graduates still
found it hard to gain employment in the white-dominated labor force.
Then, in the 1930s the government's education philosophy changed a bit and efforts were
made to educate Native children “in an environment more accepting of their beliefs[,]” and the
federal government made efforts to privatize Native Education.
Still these efforts did not
amount to equal protection and unfortunately the plan to privatize failed because state schools
systems merely accepted funds but were not interested in educating Native children.
Native students were forcefully integrated into white schools far from their homelands and white
schools openly mistreated them and did not offer them the same opportunities as other students.
In the 1950s the situation got even bleaker when the federal government under the
Eisenhower administration attempted to terminate its special trust relationship with Natives and
further thwarted Native education programs.
The government's treatment of Native students did
not improve until the 1960s when tribal leaders began asserting more control over the education
of their children, taking “the lead in forcing the federal government…to provide their children
59 U.S Comm'n on Civil Rights at ix.
60 Id. at 85.
61 Id.
62 Cross at 961.
63 Id. at 962.
64 Id.
65 U.S Comm'n on Civil Rights at 85.
quality education.”
During this era, Native Americans reminded the federal government of its
fiduciary obligation to first peoples set in numerous treaties and federal law.
Then, the Indian Education Act of 1972 and the Education Assistance Act of 1975
together passed the authority to direct and control education programs from the federal
government to the tribes.
This decision was based on Congressional findings that “the
prolonged domination of Indian service programs has served to retard rather than enhance the
progress of Indian people” and “parental and community control of the educational process is of
crucial importance to the Indian people.”
The United States government admitted that it had
failed Native people by enforcing upon them assimilation regimes and handed over the reigns to
tribal government to manage the education of their people.
Still, the federal government
acknowledged its duty to provide tribes funding for education, despite the fact that it was ceding
control over the specific programs.
Finally, in 1998 President Clinton issued an executive order honoring the government's
trust obligations to first peoples He ordered that more funding be made available for tribal
governments to spend on education. Further, he required that federal agencies assist the tribes in
focusing on six areas of Native educational need: reading and math, graduation and attendance
rates, outside influences such as poverty and substance abuse, safe and drug free schools,
science, and technology.
This order charged the federal agencies “to spring into action to gather
66 Id.
67 Cross at 963.
68 25 U.S.C. § 450.
69 Id. § 450(a)(1) & (b)(3).
70 Id.
71 Id.
72 Cross at 970-971.
data, form a task force, organize meetings, and develop strategies to deal with [these] issues.”

The most significant advancement resulting from this order was a vast amount of statistical
research indicating the deplorable conditions suffered by many Native American students.
data is now helping federal agencies, tribal leaders, and other policymakers fully realize the bulk
of the work that needs to be done for the federal government to actually fulfill its responsibilities
to Native Americans.
In recent years, legislatures have recognized the need for athletic programs in public
schools. For example, a New Jersey law enacted in 2008 states that “high school athletics often
serve an integral role in the development of the student” and that athletics must be “actively
promoted and made available to all students.”
This belief represents almost a hundred years of
jurisprudence concerning non-Indian schools, that athletics are an necessary aspect of public
In 1927 the Supreme Court of Arizona held that “athletic games under proper supervision
tend to the proper development of the body…they have a most powerful and beneficial effect
upon the development of character and morale.”
Further, it recognized the ever-increasing
popularity of athletic programs in public schools. Then, in 1968 when Alabama continued to
segregate high school sports competitions after being forced to integrate schools, a federal court
73 Id.
74 Cross at 980.
75 Id.
76 N.J. Stat. Ann. § 18A:11-3.2.
77 Alexander v. Phillips, 254 P. 1056, 1059 (Ariz. 1927).
found that “[i]t is without serious question that athletic programs in the various public high
schools throughout Alabama are an integral part of the public school system[.]”
Based on its
finding that athletic programs are so intertwined with educational opportunities, the court
ordered Alabama schools to allow all races to participate in interscholastic competitions.
Earlier, the U.S. Supreme Court in Brown v. Board held that under the U.S. Constitution
public education “is a right which must be made available to all on equal terms.”
Although the
Supreme Court has yet to extend public education to include athletics, various states have found
that their state constitutions require all students be afforded equal athletic opportunities. For
example, in 1972 a federal court in Montana held that under the state constitution “[t]he right to
attend school includes the right to participate in extracurricular activities.”
Similarly, courts
have held that the California, Michigan, and Colorado constitutions also extend the U.S.
Constitution's free school guarantee to “all activities which constitute an integral fundamental
part of the elementary and secondary education” including extracurricular athletics.
although federal law does not guarantee a right to play sports in public schools, state
constitutional provisions do extend the right to educational opportunities to athletics.
Moreover, the U.S. Constitution and federal statutes mandating the federal government to
fund Native schools require that students be afforded the same educational opportunities as
students from other schools. The Fourteenth Amendment Equal Protection Clause has been
interpreted as to require the government to provide equal education opportunities to Native
78 Lee v. Macon County Bd. of Ed., 283 F.Supp. 194, 197 (M.D. Ala. 1968).
79 Brown v. Board of Ed. of Topeka, Shawnee Cty, Kan., 347 U.S. 483 (1954).
80 Moran v. School Dist. #7, Yellowstone County, 350 F.Supp. 1180, 1183-84 (D.Mont. 1972).
81 Hartzell v. Connell, 679 P.2d 35 (Cal. 1984);
Bond v. Public Schools of the Ann Arbor School Dist., 178 N.W.2d 484 (1970);
Pacheo v. School Dist. # 11 of El Paso Cty, 516 P.2d 629 (Colo. 1973).
children in public schools.
The Civil Rights Act of 1964 prohibits racial discrimination in any
federally funded program and of course tribal schools are run on federal funds.
The purpose of
the Bureau of Indian Affairs schools is stated in the same vain: “to ensure that Indian students
being served by a school funded by the Bureau of Indian Affairs are provided with educational
opportunities that equal or exceed those for all other students in the United States.”
Thus, the
federal government has recognized that it has an obligation to provide equal educational
opportunities to Native students and it does so by granting tribal governments funds for schools
on reservations.
Given the fact that courts have recognized that extracurricular athletics are a common and
integral part of public schools in the U.S., the federal government has an obligation to provide
these opportunities to Native students, despite the fact that there is no U.S. Constitutional
guarantee to athletics in schools. If the average public school student has the opportunity to
participate in athletics, then the law requires the federal government to allow these same
opportunities to Native American students.
Just as President Clinton issued the executive order in 1998 which called for massive
amounts of research and re-budgeting of federal funds, the current executive administration needs
to make a policy statement urging tribal governments to implement and improve athletic
programs in their public schools. The federal government should not implement more paternal
regulations dictating how tribal governments run their schools but instead should make a policy
statement urging for a solution to the devastating problems impacting Native Americans: more
82 Meyers v. Bd. Of Educ. Of San Juan School Dist., 905 F.Supp. 1544 (D.Utah 1995).
83 42 U.S.C. §2000d.
84 25 U.S.C. § 2001(a)(1).
athletic programs in tribal schools.
The policy statement issued by the executive branch needs to reflect the urgency with
which tribal governments must act if they want to seriously confront the major issues facing not
only Native students but Native populations writ large. It needs to highlight the recent statistical
awareness of the deplorable poverty conditions of Native communities and the fact that first
peoples suffer some of the lowest test scores and highest dropout rates. The statement needs to
point to alcohol and substance abuse, domestic abuse and other crime, and the mistreatment of
Native Americans by European Americans over the past centuries as the roots of the social and
cultural problems which prevent Native youth from getting an adequate education. It must
advocate for education and athletic opportunities as a meaningful methods of promoting positive
change within Native American communities.
Tribal leaders must be assured that that the implementation of athletic programs has been
shown to cause a greater improvement in academic performance than directly investing more
money into academic programs. This is because sports occupy students' unsupervised,
unstructured free time, in which drug and other delinquent activity occurs, and also because
sports inherently imbue social skills, social ideals, and moral values upon participants. Students
who participate in sports statistically have higher grades, attend class more often, are less likely
to engage in substance abuse, and are more likely to graduate.
Further, the policy statement needs to remind tribal leaders of the role that Native
Americans have played in modern American sports. From spawning many popular games, such
as hockey, basketball, and lacrosse, to producing some of the greatest athletes of all time, such as
Jim Thorpe and Billy Mays, Native Americans began an athletic legacy in the nineteenth century
that needs to be continued into the new millennium. Native communities must be reminded of
their important role in early American athletics and the important physical, cultural, and spiritual
role of sports in their ancient societies.
The federal government must make a statement recognizing not only its age-old fiduciary
responsibility to fund Native education but also acknowledging that it must support tribal schools
in catching up with the rest. Native students deserve the same opportunities as pupils in other
public schools and one opportunity that almost all can enjoy is athletic participation. Even
though the U.S. Constitution has not been specifically interpreted to ensure a right to the athletic
opportunities in public schools, it has been interpreted as to require the federal government to
ensure equal opportunities for Native students. Courts for almost a century now have emphasized
that athletics are not only integral to public schools but that they are so prevalent, almost all
public schools have these programs. States have gone so far as to extend their constitutions to
guarantee the right to extracurricular activities to all students, meaning that no student can be
denied these opportunities based on their race or other protected characteristic.
Native American students should not be denied the opportunity to participate in athletic
programs merely because they are a Native living on a reservation attending a federally funded
school. Now that the tribal governments control schools on reservations, it has become their
responsibility to ensure their students have educational opportunities equal to those of non-Native
students in other public schools. Tribal governments need to set up athletic programs so that
Native schools are in compliance with the Fourteenth Amendment, federal civil rights laws, and
Indian education statutes.
In sum, tribal schools have a lot to gain from the implementation of athletic programs and
these programs may be relatively inexpensive depending on which sports they choose. Overall,
the benefits of alleviating the maladies of severe poverty outweigh the costs of a few soccer balls,
nets, and a high school coach. Although the solution may not be actually be that simple, a small
step in the direction toward greater overall happiness and an improved standard of living can have
an impact on a large number of Native students and those to come.