The following essay was written by Professor Francis Boyle of the University of Illinois School of Law.
ILLINIWAK: RACIAL DISCRIMINATION!
by
Francis A. Boyle
Professor of Law
University of Illinois at Urbana-Champaign
Board of Directors, Amnesty International USA (1988-92)
Holder of 2 Football Season Tickets (Since About 1981)
Holder of 2 Basketball Season Tickets (Since About 1982)
In his letter of 16 July 1997 to Ms. Susan Gravenhorst, Chair of
the Board of Trustees of the University of Illinois, Professor Mort
Winston, Chair of the Board of Directors of Amnesty International USA
(AIUSA) and a prominent University of Illinois Alumnus, called "Chief"
Illiniwak a "human rights violation," condemned it in no uncertain
terms, and demanded the elimination of this racist mascot. Before he
joined the AIUSA Board, Professor Winston was the leading AIUSA expert
on, and activist against, racism and apartheid in South Africa prior
to the Mandela revolution. Professor Winston knows a human rights
violation when he sees one.
The same is true for me. In addition to serving four years as a
Member of the Board of Directors of Amnesty International USA, I was
the person who single-handedly convinced the ultra-conservative
Faculty of the University of Illinois College of Law to introduce a
course on International Human Rights Law into the Law School
Curriculum as Law 370, and have taught this course for many years to
about 30 students per year. Illiniwak is indeed a human rights
violation.
The United States government is a contracting party to the 1965
International Convention on the Elimination of All Forms of Racial
Discrimination. Hence, this Racial Discrimination Convention is a
"treaty' and thus the "supreme Law of the Land" under the so-called
Supremacy Clause of Article VI of the United States Constitution:
Article VI
....
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United States, shall
be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.
In other words, the Racial Discrimination Convention absolutely binds
the entirety of the State of Illinois, including therein the
University of Illinois.
Article 1(1) of the Racial Discrimination Convention defines the
term "racial discrimination" as follows: "In this Convention the term
'racial discrimination' shall mean any distinction, exclusion,
restriction or preference based on race, colour, descent or national
or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing,
of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life." (Emphasis
added.) Obviously, Illiniwak is a "distinction" on the multiple bases
of "race," and "colour," and "descent." Illiniwak definitely has the
"effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other
field of public life" for Native American Students, Faculty, Staff and
Community Members here at the University of Illinois in
Urbana-Champaign. In accordance with the terms of this Racial
Discrimination Convention to which the United States is a party,
Illiniwak constitutes "racial discrimination" by the University of
Illinois against Native Americans.
Article 2, paragraph 1 of the Racial Discrimination Convention
provides as follows:
Article 2
1. States Parties condemn racial discrimination and
undertake to pursue by all appropriate means and without delay a
policy of eliminating racial discrimination in all its forms, and
promoting understanding among all races, and to this end:
(a) Each State Party undertakes to
engage in no act or practice of racial discrimination against persons,
groups of persons or institutions and to ensure that all public
authorities and public institutions, national and local, shall act in
conformity with this obligation;
(b) Each State Party undertakes not to
sponsor, defend or support racial discrimination by any persons or
organizations;
(c) Each State Party shall take
effective measures to review governmental, national and local
policies, and to amend, rescind or nullify any laws and regulations
which have the effect of creating or perpetuating racial
discrimination wherever it exists;
(d) Each State Party shall prohibit and
bring to an end, by all appropriate means, including legislation as
required by circumstances, racial discrimination by any persons, group
or organization;
(e) Each State Party undertakes to
encourage, where appropriate, integrationist multi-racial
organizations and movements and other means of eliminating barriers
between races, and to discourage anything which tends to strengthen
racial division. [Emphasis added.]
Clearly, Illiniwak places the United States of America in breach of
these most solemn obligations under Article 2 of the Racial
Discrimination Convention. Illiniwak contravenes Racial
Discrimination Convention Article 2. The conclusion is inexorable
that to be in accordance with the terms of the Racial Discrimination
Convention, the University of Illinois must eliminate Illiniwak.
Article 4 of the Racial Discrimination Convention clearly
requires the Government of the United States of America to eliminate
Illiniwak in no uncertain terms:
Article 4
States Parties condemn all propaganda and all
organizations which are based on ideas or theories of superiority of
one race or group of persons of one colour or ethnic origin, or which
attempt to justify or promote racial hatred and discrimination in any
form, and undertake to adopt immediate and positive measures designed
to eradicate all incitement to, or acts of, such discrimination, and
to this end, with due regard to the principles embodied in the
Universal Declaration of Human Rights and the rights expressly set
forth in article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all
dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination, as well as all acts of violence
or incitement to such acts against any race or group of persons of
another colour or ethnic origin, and also the provision of any
assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations,
and also organized and all other propaganda activities, which promote
and incite racial discrimination, and shall recognize participation in
such organizations or activities as an offence punishable by law;
(c) Shall not permit public authorities or public
institutions, national or local, to promote or incite racial
discrimination. [Emphasis added.]
Notice in particular the requirement of Article 4(c) of the
Racial Discrimination Convention: "Shall not permit public
authorities or public institutions, national or local, to promote or
incite racial discrimination." To the contrary, the University of
Illinois deliberately promotes and incites racial discrimination
against Native Americans by means of Illiniwak for the quite mercenary
purpose of making money!
Article 5 of the Racial Discrimination Convention expressly
requires the United States government "to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or
ethnic origin, to equality before the law, notably in the enjoyment of
the following rights..." (Emphasis added.) The conclusion is
inexorable that Illiniwak contravenes Article 5 of the Racial
Discrimination Convention.
Furthermore, Illiniwak also contravenes Article 6 of the Racial
Discrimination Convention:
Article 6
States Parties shall assure to everyone within their
jurisdiction effective protection and remedies through the competent
national tribunals and other State institutions against any acts of
racial discrimination which violate his human rights and fundamental
freedoms contrary to this Convention, as well as the right to seek
from such tribunals just and adequate reparation or satisfaction for
any damage suffered as a result of such discrimination.
Finally, Illiniwak contravenes Article 7 of the Racial
Discrimination Convention:
Article 7
States Parties undertake to adopt immediate and
effective measures, particularly in the fields of teaching, education,
culture and information, with a view to combating prejudices which
lead to racial discrimination and to promoting understanding,
tolerance and friendship among nations and racial or ethnical groups,
as well as to propagating the purposes and principles of the Charter
of the United Nations, the Universal Declaration of Human Rights, the
United Nations Declaration on the Elimination of All Forms of Racial
Discrimination, and this Convention.
The conclusion is inexorable that to be in accordance with the terms
of the International Convention on the Elimination of All Forms of
Racial Discrimination the University of Illinois--a Public
Institution--must eliminate Illiniwak.
As can be seen from the above analysis, the International
Convention on the Elimination of All Forms of Racial Discrimination
expressly incorporates by reference the 1948 Universal Declaration of
Human Rights (UDHR). No point would be served here by detailing all
the provisions of the UDHR that are currently being violated by
Illiniwak. But in particular, I wish to draw to your attention UDHR
Articles 1 and 2:
Article 1
All human beings are born free and equal in dignity and
rights. They are endowed with reason and conscience and should act
towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set
forth in this Declaration, without distinction of any kind, such as
race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status. (Emphasis
added.)
The United States government has been in the vanguard of the
worldwide movement to establish that these fundamental provisions of
the Universal Declaration of Human Rights, inter alia, constitute
customary international law. Customary international law is part of
the common law of the United States of America and the common law of
all the States of the Union. Customary international law applies to
and binds the State of Illinois and the University of Illinois.
Clearly, by means of Illiniwak the University of Illinois
refuses to act towards Native Americans "in a spirit of brotherhood"
in violation of UDHR Article 1. Similarly, Illiniwak constitutes a
"distinction" on the prohibited grounds of race, colour and religion,
inter alia, in gross violation of UDHR Article 2. In other words,
Illiniwak violates these most fundamental protections of the Universal
Declaration of Human Rights, inter alia, and thus violates customary
international law and therefore the common law of both the United
States and the State of Illinois.
I wish to end this Memorandum by joining those eloquent and
powerful words addressed to Trustee Susan Gravenhorst by Professor
Mort Winston, Chair of the Board of Directors of Amnesty
International, my fellow AIUSA Board Colleague and Comrade-in-Arms in
the long but successful struggle against racism and apartheid in South
Africa:
In your present position as Chair of the Board of Trustees, you
can steer university policy on this issue towards the greater good. I
urge you to do so. UIUC's sport's fans and the marching band can find
another mascot. Have a contest. Pick an animal or some culturally
neutral symbol. Show some moral leadership so that perhaps the
professional sports teams that also dishonor American Indians by
debasing their cultural symbols will one day follow suit. But above
all stop pretending that keeping "Chief Illiniwek" alive is somehow
"honoring" the Native Americans who once roamed the plains where the
University of Illinois now stands. In short, "Do the Right Thing --
Get Rid of the Chief!"
F.A.B.
25 July 1997