THE CHRONIC EFFECT OF "KILL THE INDIAN SAVE THE MAN": AN ANALYSIS OF DREAMING BEAR V. FLEMING.

• Author: Merrill, Samantha J.

The District Court of South Dakota has found that the wearing of cultural regalia is a protected First Amendment Expression, but that such an expression can be prohibited at a graduation ceremony based on the pedagogical interests of a public high school. The District Court found, in the case of Dreaming Bear v. Fleming, the Dataphase /actors did not support awarding a preliminary injunction that would allow such expression. However, when weighing the Dataphase factors, the District Court failed to account for important historical, statistical, and sociological facts that it should have examined in the Dataphase analysis. Based on unconsidered factors and the misapplication of the Dataphase test, the District Court should have granted a preliminary injunction to Mr. Dreaming Bear and, therefore, allowed him to wear his traditional regalia while graduating.

1. INTRODUCTION

   The merging of cultures, languages, religions, ethnicities, and ways of life is what makes America the great melting pot. (1) However, not all cultural expressions have been met with the acceptance one would expect from "the great American melting pot." This is especially true for the culture, language, religion, and customs of Native Americans. (2) This suppression of cultural values and expression is examined in the case of Dreaming Bear v. Fleming? In Dreaming Bear, the District Court looked at the First Amendment right to freedom of expression (4) in the context of schools through the lens of a preliminary injunction by using the Dataphase Systems, Inc. v. C L Systems, Inc. ("Dataphase") (5) factors. (6)

   In this case, Aloysius Dreaming Bear informed his class sponsor (7) of his intent to wear traditional Lakota regalia and clothing at his graduation and the sponsor approved. (8) The sponsor later informed Mr. Dreaming Bear that the high school would not allow this because he was required to wear a cap and gown. (9) Following this decision, Mr. Dreaming Bear fded for a preliminary injunction in the United States District Court in the District of South Dakota, Western Division. (10) The District Court denied the injunction based on its application of the Dataphase factors." Though the District Court determined that wearing tribal regalia is a protected First Amendment expression, (12) it found the school had a legitimate pedagogical interest in suppressing the diverse expression. (13) Further, the District Court could not see how the school board's actions would cause Mr. Dreaming Bear irreparable harm. (14) Rather, the District Court found that the school board would suffer more harm than Mr. Dreaming Bear, as the injunction "could well force the cap and gown tradition into obscurity." (15)

   This case note will discuss the improper application of the Dataphase factors to Mr. Dreaming Bear's facts. (16) In Dreaming Bear, the District Court failed to consider important statistical, sociological, and historical facts when applying the Dataphase factors. (17) Most significantly, the District Court placed too much value on the third Dataphase factor, (18) the likelihood of success on the merits of Mr. Dreaming Bear's First Amendment claim, while failing to consider an essential question when determining this factor: whether the school's actions constituted prior restraint. (19) Based on the factors mentioned above, the District Court should have granted Mr. Dreaming Bear's request for a preliminary injunction. (20) This case note will discuss the pedagogical interest, or lack thereof, served by the suppression of Dreaming Bear's expression of culture, the implications of prior restraint, the statistics showing the likelihood of irreparable harm to Mr. Dreaming Bear, and the historical and sociological facts that affect the public interest. (21) Finally, this note will end with a discussion of a 2018 South Dakota law that tried and failed to protect the cultural expression of future high school graduates in similar situations. (22)

   As a brief aside regarding terminology, there is no consensus regarding the appropriate terminology used to reference the indigenous people of North America. (23) There are several commonly used terms including Indian, American Indian, Native American, Indigenous, and others. (24) For consistency, this note will refer to those of indigenous descent as "Native American." (25) However, certain quotations contain other terms and will remain in their original form to retain their authenticity. (26) Further, Lakota is one of three main subcultures of the Sioux people. (27) For the purposes of this article, Sioux and Lakota will be used interchangeably with Lakota being the preferred terminology. (28)

2. FACTS AND PROCEDURE

   Mr. Dreaming Bear, a member of the Oglala Sioux Tribe, had been a lifelong resident of the Pine Ridge Indian Reservation at the time of his high school graduation in 2010. As a seventh-generation descendent of Chief Red Cloud, Mr. Dreaming Bear identifies as a Lakota man and takes great pride in his culture. (29) Mr. Dreaming Bear attended Oelrichs High School, a public high school in rural southwest South Dakota near the Pine Ridge Indian Reservation. (30) The Oelrichs student handbook notes that students will take an active role in planning graduation, including decisions regarding cap and gowns. (31) It is a tradition at Oelrichs High School for females to wear one color of gown and males to wear the other during their graduation ceremony. (32) Based on Mr. Dreaming Bear's identity as a Lakota man and the school's handbook, Mr. Dreaming Bear informed his class sponsor that he intended to wear his traditional Lakota regalia as he graduated from high school. (33) The class sponsor informed Mr. Dreaming Bear that "he could [wear his regalia] because it was the students' graduation." (34)

   The school then informed Mr. Dreaming Bear that he had to wear a cap and gown over any traditional clothing he chose to wear. (35) In response to the school's mandate, Mr. Dreaming Bear took steps to be heard at the upcoming school board meeting and was placed on the agenda. (36) In preparation for this, Mr. Dreaming Bear obtained the signatures of ninety percent (37) of his class, all of whom supported his decision to wear traditional Lakota clothing instead of a cap and gown. (38) While at the school board meeting, the school board cut off Mr. Dreaming Bear before he had the chance to complete his presentation to the board. (39) When explaining why the board did not allow Mr. Dreaming Bear to complete his presentation, the board stated that Mr. Dreaming Bear had gone over his allotted time, despite the board failing to inform Mr. Dreaming Bear that he had a limited amount of time to make his presentation. (40)

   The same evening as the meeting, the board informed Mr. Dreaming Bear that he would be required to wear a cap and gown over his traditional Lakota clothing. (41) The school board further stated that all students must wear a cap and gown--despite ninety percent of the graduates being Lakota people. (42) Mr. Dreaming Bear then brought suit against the superintendent of the school district and the members of the school board. (43) Mr. Dreaming Bear alleged the defendants violated his First Amendment rights by mandating that he wear a cap and gown over his traditional regalia and sought a preliminary and permanent injunction in federal court. (44) At the hearing, Mr. Dreaming Bear articulated the importance of being able to wear his cultural regalia:

   To me my culture and people mean a lot, in the Lakota culture a man was suppose to protect his people and stand for what is right! That is one of the base reasons why I come here to face you, the school board, because I am protecting my people by coming here to face you, and protect my cultures heritage by standing up for what is right and that is me wear[ing] my tribes traditional clothing with pride on graduation day, because how can I be a honorable Lakota warrior by wearing a white mans gown, and not my tribes regalia? (45)

   After hearing the testimony of school officials, expert witnesses, and Mr. Dreaming Bear, the District Court denied Mr. Dreaming Bear's request for preliminary injunction based on its application of the Dataphase factors. (46)

   Those factors include consideration of "(1) the threat of irreparable harm to the movant; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest." (47) The District Court first looked at the likelihood of success, finding that the wearing of tribal regalia is an expression protected by the First Amendment, but that the school had a legitimate pedagogical purpose to suppress the presence of Native American tribal regalia at the graduation ceremony. (48) Therefore, the District Court determined that Mr. Dreaming Bear would likely not succeed on the merits of his claim. (49)

   The District Court then found that there was no clear way that the school board's actions would cause irreparable harm to Mr. Dreaming Bear and that allowing cultures to wear their traditional regalia would harm the school because it could "force the cap and gown tradition into obscurity at Oelrichs High School." (50) Finally, the District Court found that public interest weighs in favor of the school board. (51) Specifically, the District Court found that the tradition of the cap and gown "is time-honored and is part of the very fabric of the academic experience throughout the nation. The public expects regularity and solemnity in graduation proceedings. To surrender control of graduation proceedings to students runs the risk of undermining the high standards the public expects." (52) Based on this reasoning, the District Court denied Mr. Dreaming Bear's motion for a preliminary and permanent injunction and dismissed Mr. Dreaming Bear's complaint. (53) Mr. Dreaming Bear did not...