December 23

1620   One week after the Mayflower arrived at Plymouth harbor in present-day Massachusetts, construction of the first permanent European settlement in New England begins.

Comment:   I remain really curious about the timing of this. Why December? Was the thought that they could get a crop in that Spring,if they hit ground mid winter?

1776  Thomas Paine wrote The Crisis:

THESE are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands by it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph. What we obtain too cheap, we esteem too lightly: it is dearness only that gives every thing its value. Heaven knows how to put a proper price upon its goods; and it would be strange indeed if so celestial an article as FREEDOM should not be highly rated. Britain, with an army to enforce her tyranny, has declared that she has a right (not only to TAX) but "to BIND us in ALL CASES WHATSOEVER" and if being bound in that manner, is not slavery, then is there not such a thing as slavery upon earth. Even the expression is impious; for so unlimited a power can belong only to God.

Whether the independence of the continent was declared too soon, or delayed too long, I will not now enter into as an argument; my own simple opinion is, that had it been eight months earlier, it would have been much better. We did not make a proper use of last winter, neither could we, while we were in a dependent state. However, the fault, if it were one, was all our own; we have none to blame but ourselves. But no great deal is lost yet. All that Howe has been doing for this month past, is rather a ravage than a conquest, which the spirit of the Jerseys, a year ago, would have quickly repulsed, and which time and a little resolution will soon recover.

I have as little superstition in me as any man living, but my secret opinion has ever been, and still is, that God Almighty will not give up a people to military destruction, or leave them unsupportedly to perish, who have so earnestly and so repeatedly sought to avoid the calamities of war, by every decent method which wisdom could invent. Neither have I so much of the infidel in me, as to suppose that He has relinquished the government of the world, and given us up to the care of devils; and as I do not, I cannot see on what grounds the king of Britain can look up to heaven for help against us: a common murderer, a highwayman, or a house-breaker, has as good a pretence as he.

'Tis surprising to see how rapidly a panic will sometimes run through a country. All nations and ages have been subject to them. Britain has trembled like an ague at the report of a French fleet of flat-bottomed boats; and in the fourteenth [fifteenth] century the whole English army, after ravaging the kingdom of France, was driven back like men petrified with fear; and this brave exploit was performed by a few broken forces collected and headed by a woman, Joan of Arc. Would that heaven might inspire some Jersey maid to spirit up her countrymen, and save her fair fellow sufferers from ravage and ravishment! Yet panics, in some cases, have their uses; they produce as much good as hurt. Their duration is always short; the mind soon grows through them, and acquires a firmer habit than before. But their peculiar advantage is, that they are the touchstones of sincerity and hypocrisy, and bring things and men to light, which might otherwise have lain forever undiscovered. In fact, they have the same effect on secret traitors, which an imaginary apparition would have upon a private murderer. They sift out the hidden thoughts of man, and hold them up in public to the world. Many a disguised Tory has lately shown his head, that shall penitentially solemnize with curses the day on which Howe arrived upon the Delaware.

As I was with the troops at Fort Lee, and marched with them to the edge of Pennsylvania, I am well acquainted with many circumstances, which those who live at a distance know but little or nothing of. Our situation there was exceedingly cramped, the place being a narrow neck of land between the North River and the Hackensack. Our force was inconsiderable, being not one-fourth so great as Howe could bring against us. We had no army at hand to have relieved the garrison, had we shut ourselves up and stood on our defence. Our ammunition, light artillery, and the best part of our stores, had been removed, on the apprehension that Howe would endeavor to penetrate the Jerseys, in which case Fort Lee could be of no use to us; for it must occur to every thinking man, whether in the army or not, that these kind of field forts are only for temporary purposes, and last in use no longer than the enemy directs his force against the particular object which such forts are raised to defend. Such was our situation and condition at Fort Lee on the morning of the 20th of November, when an officer arrived with information that the enemy with 200 boats had landed about seven miles above; Major General [Nathaniel] Green, who commanded the garrison, immediately ordered them under arms, and sent express to General Washington at the town of Hackensack, distant by the way of the ferry = six miles. Our first object was to secure the bridge over the Hackensack, which laid up the river between the enemy and us, about six miles from us, and three from them. General Washington arrived in about three-quarters of an hour, and marched at the head of the troops towards the bridge, which place I expected we should have a brush for; however, they did not choose to dispute it with us, and the greatest part of our troops went over the bridge, the rest over the ferry, except some which passed at a mill on a small creek, between the bridge and the ferry, and made their way through some marshy grounds up to the town of Hackensack, and there passed the river. We brought off as much baggage as the wagons could contain, the rest was lost. The simple object was to bring off the garrison, and march them on till they could be strengthened by the Jersey or Pennsylvania militia, so as to be enabled to make a stand. We staid four days at Newark, collected our out-posts with some of the Jersey militia, and marched out twice to meet the enemy, on being informed that they were advancing, though our numbers were greatly inferior to theirs. Howe, in my little opinion, committed a great error in generalship in not throwing a body of forces off from Staten Island through Amboy, by which means he might have seized all our stores at Brunswick, and intercepted our march into Pennsylvania; but if we believe the power of hell to be limited, we must likewise believe that their agents are under some providential control.

I shall not now attempt to give all the particulars of our retreat to the Delaware; suffice it for the present to say, that both officers and men, though greatly harassed and fatigued, frequently without rest, covering, or provision, the inevitable consequences of a long retreat, bore it with a manly and martial spirit. All their wishes centred in one, which was, that the country would turn out and help them to drive the enemy back. Voltaire has remarked that King William never appeared to full advantage but in difficulties and in action; the same remark may be made on General Washington, for the character fits him. There is a natural firmness in some minds which cannot be unlocked by trifles, but which, when unlocked, discovers a cabinet of fortitude; and I reckon it among those kind of public blessings, which we do not immediately see, that God hath blessed him with uninterrupted health, and given him a mind that can even flourish upon care.
I shall conclude this paper with some miscellaneous remarks on the state of our affairs; and shall begin with asking the following question, Why is it that the enemy have left the New England provinces, and made these middle ones the seat of war? The answer is easy: New England is not infested with Tories, and we are. I have been tender in raising the cry against these men, and used numberless arguments to show them their danger, but it will not do to sacrifice a world either to their folly or their baseness. The period is now arrived, in which either they or we must change our sentiments, or one or both must fall. And what is a Tory? Good God! What is he? I should not be afraid to go with a hundred Whigs against a thousand Tories, were they to attempt to get into arms. Every Tory is a coward; for servile, slavish, self-interested fear is the foundation of Toryism; and a man under such influence, though he may be cruel, never can be brave.

But, before the line of irrecoverable separation be drawn between us, let us reason the matter together: Your conduct is an invitation to the enemy, yet not one in a thousand of you has heart enough to join him. Howe is as much deceived by you as the American cause is injured by you. He expects you will all take up arms, and flock to his standard, with muskets on your shoulders. Your opinions are of no use to him, unless you support him personally, for 'tis soldiers, and not Tories, that he wants.

I once felt all that kind of anger, which a man ought to feel, against the mean principles that are held by the Tories: a noted one, who kept a tavern at Amboy, was standing at his door, with as pretty a child in his hand, about eight or nine years old, as I ever saw, and after speaking his mind as freely as he thought was prudent, finished with this unfatherly expression, "Well! give me peace in my day." Not a man lives on the continent but fully believes that a separation must some time or other finally take place, and a generous parent should have said, "If there must be trouble, let it be in my day, that my child may have peace;" and this single reflection, well applied, is sufficient to awaken every man to duty. Not a place upon earth might be so happy as America. Her situation is remote from all the wrangling world, and she has nothing to do but to trade with them. A man can distinguish himself between temper and principle, and I am as confident, as I am that God governs the world, that America will never be happy till she gets clear of foreign dominion. Wars, without ceasing, will break out till that period arrives, and the continent must in the end be conqueror; for though the flame of liberty may sometimes cease to shine, the coal can never expire.

America did not, nor does not want force; but she wanted a proper application of that force. Wisdom is not the purchase of a day, and it is no wonder that we should err at the first setting off. From an excess of tenderness, we were unwilling to raise an army, and trusted our cause to the temporary defence of a well-meaning militia. A summer's experience has now taught us better; yet with those troops, while they were collected, we were able to set bounds to the progress of the enemy, and, thank God! they are again assembling. I always considered militia as the best troops in the world for a sudden exertion, but they will not do for a long campaign. Howe, it is probable, will make an attempt on this city [Philadelphia]; should he fail on this side the Delaware, he is ruined. If he succeeds, our cause is not ruined. He stakes all on his side against a part on ours; admitting he succeeds, the consequence will be, that armies from both ends of the continent will march to assist their suffering friends in the middle states; for he cannot go everywhere, it is impossible. I consider Howe as the greatest enemy the Tories have; he is bringing a war into their country, which, had it not been for him and partly for themselves, they had been clear of. Should he now be expelled, I wish with all the devotion of a Christian, that the names of Whig and Tory may never more be mentioned; but should the Tories give him encouragement to come, or assistance if he come, I as sincerely wish that our next year's arms may expel them from the continent, and the Congress appropriate their possessions to the relief of those who have suffered in well-doing. A single successful battle next year will settle the whole. America could carry on a two years' war by the confiscation of the property of disaffected persons, and be made happy by their expulsion. Say not that this is revenge, call it rather the soft resentment of a suffering people, who, having no object in view but the good of all, have staked their own all upon a seemingly doubtful event. Yet it is folly to argue against determined hardness; eloquence may strike the ear, and the language of sorrow draw forth the tear of compassion, but nothing can reach the heart that is steeled with prejudice.

Quitting this class of men, I turn with the warm ardor of a friend to those who have nobly stood, and are yet determined to stand the matter out: I call not upon a few, but upon all: not on this state or that state, but on every state: up and help us; lay your shoulders to the wheel; better have too much force than too little, when so great an object is at stake. Let it be told to the future world, that in the depth of winter, when nothing but hope and virtue could survive, that the city and the country, alarmed at one common danger, came forth to meet and to repulse it. Say not that thousands are gone, turn out your tens of thousands; throw not the burden of the day upon Providence, but "show your faith by your works," that God may bless you. It matters not where you live, or what rank of life you hold, the evil or the blessing will reach you all. The far and the near, the home counties and the back, the rich and the poor, will suffer or rejoice alike. The heart that feels not now is dead; the blood of his children will curse his cowardice, who shrinks back at a time when a little might have saved the whole, and made them happy. I love the man that can smile in trouble, that can gather strength from distress, and grow brave by reflection. 'Tis the business of little minds to shrink; but he whose heart is firm, and whose conscience approves his conduct, will pursue his principles unto death. My own line of reasoning is to myself as straight and clear as a ray of light. Not all the treasures of the world, so far as I believe, could have induced me to support an offensive war, for I think it murder; but if a thief breaks into my house, burns and destroys my property, and kills or threatens to kill me, or those that are in it, and to "bind me in all cases whatsoever" to his absolute will, am I to suffer it? What signifies it to me, whether he who does it is a king or a common man; my countryman or not my countryman; whether it be done by an individual villain, or an army of them? If we reason to the root of things we shall find no difference; neither can any just cause be assigned why we should punish in the one case and pardon in the other. Let them call me rebel and welcome, I feel no concern from it; but I should suffer the misery of devils, were I to make a whore of my soul by swearing allegiance to one whose character is that of a sottish, stupid, stubborn, worthless, brutish man. I conceive likewise a horrid idea in receiving mercy from a being, who at the last day shall be shrieking to the rocks and mountains to cover him, and fleeing with terror from the orphan, the widow, and the slain of America.

There are cases which cannot be overdone by language, and this is one. There are persons, too, who see not the full extent of the evil which threatens them; they solace themselves with hopes that the enemy, if he succeed, will be merciful. It is the madness of folly, to expect mercy from those who have refused to do justice; and even mercy, where conquest is the object, is only a trick of war; the cunning of the fox is as murderous as the violence of the wolf, and we ought to guard equally against both. Howe's first object is, partly by threats and partly by promises, to terrify or seduce the people to deliver up their arms and receive mercy. The ministry recommended the same plan to Gage, and this is what the tories call making their peace, "a peace which passeth all understanding" indeed! A peace which would be the immediate forerunner of a worse ruin than any we have yet thought of. Ye men of Pennsylvania, do reason upon these things! Were the back counties to give up their arms, they would fall an easy prey to the Indians, who are all armed: this perhaps is what some Tories would not be sorry for. Were the home counties to deliver up their arms, they would be exposed to the resentment of the back counties who would then have it in their power to chastise their defection at pleasure. And were any one state to give up its arms, that state must be garrisoned by all Howe's army of Britons and Hessians to preserve it from the anger of the rest. Mutual fear is the principal link in the chain of mutual love, and woe be to that state that breaks the compact. Howe is mercifully inviting you to barbarous destruction, and men must be either rogues or fools that will not see it. I dwell not upon the vapors of imagination; I bring reason to your ears, and, in language as plain as A, B, C, hold up truth to your eyes.

I thank God, that I fear not. I see no real cause for fear. I know our situation well, and can see the way out of it. While our army was collected, Howe dared not risk a battle; and it is no credit to him that he decamped from the White Plains, and waited a mean opportunity to ravage the defenceless Jerseys; but it is great credit to us, that, with a handful of men, we sustained an orderly retreat for near an hundred miles, brought off our ammunition, all our field pieces, the greatest part of our stores, and had four rivers to pass. None can say that our retreat was precipitate, for we were near three weeks in performing it, that the country might have time to come in. Twice we marched back to meet the enemy, and remained out till dark. The sign of fear was not seen in our camp, and had not some of the cowardly and disaffected inhabitants spread false alarms through the country, the Jerseys had never been ravaged. Once more we are again collected and collecting; our new army at both ends of the continent is recruiting fast, and we shall be able to open the next campaign with sixty thousand men, well armed and clothed. This is our situation, and who will may know it. By perseverance and fortitude we have the prospect of a glorious issue; by cowardice and submission, the sad choice of a variety of evils — a ravaged country — a depopulated city — habitations without safety, and slavery without hope — our homes turned into barracks and bawdy-houses for Hessians, and a future race to provide for, whose fathers we shall doubt of. Look on this picture and weep over it! and if there yet remains one thoughtless wretch who believes it not, let him suffer it unlamented.

1820  Moses Austin arrived in the Mexican territory of Texas seeking to secure permission for 300 families to immigrate there.

1823 The poem "A Visit from St. Nicholas" by Clement C. Moore was first published, in the Troy (N.Y.) Sentinel.

A Visit from St. Nicholas

By Clement Clarke Moore

’T WAS the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse;
The stockings were hung by the chimney with care,
In hopes that ST. NICHOLAS soon would be there;
The children were nestled all snug in their beds,
While visions of sugar-plums danced in their heads;
And mamma in her ’kerchief, and I in my cap,
Had just settled our brains for a long winter’s nap,
When out on the lawn there arose such a clatter,
I sprang from the bed to see what was the matter.
Away to the window I flew like a flash,
Tore open the shutters and threw up the sash.
The moon on the breast of the new-fallen snow
Gave the lustre of mid-day to objects below,
When, what to my wondering eyes should appear,
But a miniature sleigh, and eight tiny reindeer,
With a little old driver, so lively and quick,
I knew in a moment it must be St. Nick.
More rapid than eagles his coursers they came,
And he whistled, and shouted, and called them by name;
“Now, Dasher! now, Dancer! now, Prancer and Vixen!
On, Comet! on, Cupid! on, Donder and Blitzen!
To the top of the porch! to the top of the wall!
Now dash away! dash away! dash away all!”
As dry leaves that before the wild hurricane fly,
When they meet with an obstacle, mount to the sky;
So up to the house-top the coursers they flew,
With the sleigh full of Toys, and St. Nicholas too.
And then, in a twinkling, I heard on the roof
The prancing and pawing of each little hoof.
As I drew in my head, and was turning around,
Down the chimney St. Nicholas came with a bound.
He was dressed all in fur, from his head to his foot,
And his clothes were all tarnished with ashes and soot;
A bundle of Toys he had flung on his back,
And he looked like a pedler just opening his pack.
His eyes—how they twinkled! his dimples how merry!
His cheeks were like roses, his nose like a cherry!
His droll little mouth was drawn up like a bow
And the beard of his chin was as white as the snow;
The stump of a pipe he held tight in his teeth,
And the smoke it encircled his head like a wreath;
He had a broad face and a little round belly,
That shook when he laughed, like a bowlful of jelly.
He was chubby and plump, a right jolly old elf,
And I laughed when I saw him, in spite of myself;
A wink of his eye and a twist of his head,
Soon gave me to know I had nothing to dread;
He spoke not a word, but went straight to his work,
And filled all the stockings; then turned with a jerk,
And laying his finger aside of his nose,
And giving a nod, up the chimney he rose;
He sprang to his sleigh, to his team gave a whistle,
And away they all flew like the down of a thistle,
But I heard him exclaim, ere he drove out of sight,
“Happy Christmas to all, and to all a good-night.”

1869     Louis Riel replaces John Bruce as President of the National Committee of Metis.

1889  A monument was erected in Natrona County Wyoming to S. Morris Waln and C.H. Strong, who had been murdered by their guide while hunting and prospecting in the Spring of 1888.  Waln was from Philadelphia, and Strong from New York City, and they hired a guide/cook from Denver. The guide was later tried and convicted in Colorado of horse theft, but was never tried for the Wyoming murders.

1916   The Cheyenne State Leader for December 23, 1916: Stock Raising Homestead Act passed
 

While it only merited a single paragraph, it did make the front page.  The Stock Raising Homestead Act of 1916 had passed.

This was a major change in the homesteading laws in that it was the first of two homestead acts that recognized the stock raising and arid nature of the West. Rather than grant 40 acres, as the original Homestead Act had, it allowed for 640, an entire section.  It would be signed into law by President Wilson on December 29.

While we do not associate this period with homesteading it was actually the height, and close to the finish, of it.  A large number of entries were being taken out, and soon a large number would fail in the post World War One agricultural crash and drought.

The Wyoming Tribune for December 23, 1916: Carranza loses cities.

The Wyoming Tribune reported that Carranza was losing cities, suggesting he was losing the civil war in Mexico.  At the same time, the paper reported that people were being generous to Pershing's command in Mexico.

1913 The Federal Reserve Act was signed by President Woodrow Wilson.

1918  December 23, 1918. Wyoming Guardsmen of the 148th Field Artillery at the Château-Thierry and beyond.

The DI of the 148th Field Artillery.  Many of the Wyoming Guardsmen who served as infantry on the border were reassigned to this Field Artillery unit made up of Rocky Mountain Region and Northwestern Guardsmen during World War One.

If you'd been wondering what became of the men of the Wyoming National Guard, whom we started following with their first muster into service with the Punitive Expedition, the Wyoming State Tribune gave us a clue.

As readers will recall, quite a few of those men were put in to the 148th Field Artillery.  None of them deployed as infantry, which is what they had been when first mustered for border service with Mexico and then again when first recalled for the Great War.  Not all of them ended up in the 148th, but quite a few did, which was a heavy artillery unit of the field artillery.  Indeed, a quite modern one as it used truck, rather than equine, transport.  

Here we learned that the 148th was at Château-Thierry.

Another version of the distinctive insignia for the unit with additional elements for the western nature of the composite elements.

To flesh it out just a bit, the 148th at that time was made up of elements of the 3d Rgt of the Wyoming National Guard, the 1st Separate Battalion Colorado Field Artillery, and the 1st Separate Troop (Cavalry) Oregon National Guard. They were part of the 66th FA Bde.  They'd arrived in France on February 10, 1918, just prior to the German's massive Spring 1918 Offensive.  They were equipped in France with 155 GPF Guns and Renault Artillery tractors.

155 GPF in use by American artillerymen.

They went to the front on July 4, 1918 and were emplaced directly sought of Château-Thierry and began firing missions on July 9.  After that engagement, they'd continue on to participate in the St. Mihiel Offensive and the Meuse Argonne Offensive.  By the wars end, they'd fired 67,590 shells.

American Army Renault EG Artillery tractor with a GPF in tow.  Note the wood blocks for chalks.

The unit went on to be part of the Army of Occupation in Germany following the war, a mission with which it was occupied until June 3, 1919, when it boarded the USS Peerless for New York.  It was mustered out of service at Camp Mills, New York, on June 19, 1919, with Wyoming's members sent on to Ft. D. A. Russell for discharge from their World War One service.

We'll pick this story up again as we reach those dates, but as we made a dedicated effort to follow these men early on, we didn't want to omit their story later.  Wyomingites reading the papers in 1918 learned of their service, accepting censored soldier mail, for the first time on this day in 1918.  While news reporting done by the U.S. and foreign press during World War One was often remarkably accurate, one set of details that was kept generally well hidden was the service, and even the fate, of individual American servicemen and units.  Wyomingites now learned what role many of their Guardsmen had played in the war for the first time.

And it was a significant one.

1925 Sultan Ibn Saud of Nejed captures Jiddah.  Connection with Wyoming?  Ibn Saud founded Saudi Arabia through such conquests, a rare example of a state based so strongly on a ruling family, and a state that has worked, in part, because it possesses a valuable natural resource, petroleum oil.  Wyoming had been an oil province since the 1890s, and the Arabian Peninsula was just becoming one.  The economic fortunes of Wyoming have been tied to activities in the Middle East ever since that region became a significant oil producer.

1926  1,000 rabbits show near Medicine Bow and sent to Rawlins, Wyoming, to feed the hungry.

1935  5,600 jackrabbits killed in Natrona County in one of the periodic Depression Era rabbit drives that were designed to help feed hungry families.  Amongst the numerous natural disasters inflicted on the nation during the Dust Bowl years were plagues of rabbits.  Attribution.  Wyoming State Historical Society.

1941 American forces on Wake Island surrendered to the Japanese. British troops capture Benghazi, Libya. Gen. Douglas MacArthur decides to withdraw to Bataan. Japanese begin offensive against Rangoon, Burma. The 440-foot tanker Montebello was sunk off the California coast near Cambria by a Japanese submarine. The crew of 38 survived and in 1996 it was found that the 4.1 million gallon cargo of crude oil appeared intact. A conference of industry and labor officials agrees that there would be no strikes or lockouts in war industries while World War II continued.

1944  All horse racing in the US is banned in an effort to save labor.

1973  Larry Larom, founding president of the Dude Ranchers Association, died in Cody.

1991  A magnitude 3.6 earthquake occurred about 70 miles from Sheridan, WY.

Elsewhere:  1888 Vincent Van Gogh cuts off his ear.

December 17

1619     Prince Rupert of the Rhine, Royalist cavalry commander in the English Civil War, born.  He returned England with the restoration of Charles II, and headed the investors group that in 1670 got a charter for the Hudson's Bay Company and title to all lands draining into Hudson Bay.  He was the first Governor of the HBC.

1890  Union Pacific swithmen went on strike.   Attribution: Wyoming State Historical Society.

1904  John J. McIntyre born in Dewey County, Oklahoma.  He was the Congressman from Wyoming from 1941 to 1943, serving a single term.  He served as State Auditor in 1946, and was later a Justice of the Wyoming Supreme Court from 1960 until his death in 1974.

McIntyre graduated from high school in Tulsa, Oklahoma and had a law degree from the University of Colorado at Boulder from 1929.  He relocated to Wyoming in 1931 where he became the Converse County Attorney in 1933 and entered Federal service as an attorney in 1936.  He was a member of the Wyoming National Guard and was promoted to the rank of Captain in1936. This was not unusual for lawyers of that period, as many held commissions on the Guard.  He must have been in the Guard at the time it was Federalized in 1940, but his status as a Congressman likely took him out of service at the time of Pearl Harbor.  He was not reelected to Congress and served as a Deputy Attorney General in 1943 and 1944, and then entered the U.S. Army as an enlisted man where he was a Staff Sergeant with the 660th Field Artillery.

1916  Inter Ocean destroyed by fire.

The Inter-Ocean

1916   Inter-Ocean Hotel in Cheyenne destroyed by fire.  Attribution; Wyoming State Historical Society.

The Inter-Ocean was one of several Cheyenne hotels that were big deals and major watering holes, something very common in that era and for decades thereafter (and still somewhat true in larger cities today).  It's remembered to Western History for being the location referenced by Tom Horn in his famous conversation with  Joe LeFors.

If you go to the Inter-Ocean to sit down and talk a few minutes some one comes in and says, 'Let us have a drink,' and before you know it you are standing up talking, and my feet get so *&^*&^^  tired it almost kills me. I am 44 years, 3 months, and 27 days old, and if I get killed now I have the satisfaction of knowing I have lived about fifteen ordinary lives.

Horn was in fact arrested outside of the Inter-Ocean.

The hotel had been built by Barney Ford, a businessman who had been born a slave, a status that he escaped from.  His father was the white plantation owners where his black mother was enslaved.  After escaping he lived an adventuresome life and rose to great wealth in Colorado.

He apparently liked the name "Inter-Ocean" as he built another hotel in Denver's 16th Street by that name.  Like the Cheyenne hotel, it is no longer there, which is a real shame as funky buildings like this are all the rage in Denver now..

Denver's Inter-Ocean

1916  Sunday State Leader for December 17, 1916: Measles killing Guardsmen at Deming.

Not the only news of the day, but two Arkansas Guardsmen died from the measles at Deming, New Mexico, news that surely worried Wyomingites with family members serving in the Guard at Deming.

William F. Cody  was reported very ill at his sister's house in Denver.

And death claimed the life of a former Rough Rider living in the state as well.

The State Health Officer reported, in cheerier news, on the state's healthful climate.

1916  Carranza rejects the protocol

 

We've run a lot of newspaper articles on the negotiations between the United States and Mexico, or perhaps more accurately between the United States and the Constitutionalist government of Mexico lead by Venustiano Carranza

 Carranza

On this day he ended the doubt, he refused to sign it.

Carranza was a tough minded individual.  He never liked Woodrow Wilson and he had a grudge against the United States.  Irrespective of what may seem to be the advantages of the proposals that were made, he wouldn't agree.

And he never did.  Carranza never executed a protocol with the United States.

By this point the United States clearly wanted out of Mexico.  The intervention had bogged down to an uneasy occupation since the summer and was going nowhere.  Carranza guessed correctly that the United States would be leaving no matter what, although that did not mean that the US would be passive in protecting its interests.

1918  The USS Cheyenne, formerly the USS Wyoming, but renamed due the later battleship being assigned that name, assigned to Division I, American Patrol Division.

1918  December 17, 1918. No Booze for Soldiers. No Booze for Coloradans, No Booze for Montanans. Villa ponders attack

Up until at least the Korean War, if not the Vietnam War, a deficit of clothing meant that discharged soldiers often wore their uniforms after a time following their discharge.  That was very much the case after World War One and World War Two.  Here, the Federal Government was concerned about discharged soldiers drinking in uniform.

In the popular imagination, Prohibition was forced on an unwilling nation by a bunch of silly temperance women who didn't realize that America was a drinking nation.  That version of the story is very far from true.

The Cheyenne State Leader was reporting that Montana would go dry on December 30.  1918 was to be Montana's last "wet" year.  Villa, the paper also reported, was up to no good.

In reality, Prohibition was a hugely popular movement and was gaining ground in the states prior to it become Federal law.  By this date in 1918, Colorado had gone "bone dry" and Montana was about to.

Not all was bleak. One of the Casper papers was reporting that American soldiers still preferred American girls.  Those American soldiers would be bringing home quite a few French brides and even a few Russian ones.  Of course, the report here did contain some bad news for American women.  Some of the soldiers were reporting pretty favorably on les femmes Francais.

So Prohibition was really arriving in the individual states prior to the Volstead Act making it the law of the land and prior to any Constitutional amendment requiring it.  When Prohibition was repealed, it meant that each state that had laws on the books had to revisit those laws if it wanted to likewise repeal Prohibition in their state, which serves as a lesson in rushing to amend laws to comport with what seems to be a national development.  That allowed those states a breather to adapt to the new situation, which in the case of Wyoming it very much took, phasing drinking back in over a period of years.

1919 

Vernon Baker born in Cheyenne.  Baker is a recipient of the Congressional Medal of Honor for his actions in combat in World War Two, with his citation reading as follows:

For extraordinary heroism in action on 5 and 6 April 1945, near Viareggio, Italy. Then Second Lieutenant Baker demonstrated outstanding courage and leadership in destroying enemy installations, personnel, and equipment during his company's attack against a strongly entrenched enemy in mountainous terrain. When his company was stopped by the concentration of fire from several machine gun emplacements, he crawled to one position and destroyed it, killing three Germans. Continuing forward, he attacked an enemy observation post and killed two occupants. With the aid of one of his men, Lieutenant Baker attacked two more machine gun nests, killing or wounding the four enemy soldiers occupying these positions. He then covered the evacuation of the wounded personnel of his company by occupying an exposed position and drawing the enemy's fire. On the following night Lieutenant Baker voluntarily led a battalion advance through enemy mine fields and heavy fire toward the division objective. Second Lieutenant Baker's fighting spirit and daring leadership were an inspiration to his men and exemplify the highest traditions of the Armed Forces.

Baker had a rough start in life when his parents died while he was still young.  Partially raised by his grandparents, he learned how to hunt from his grandfather in order to put meat on the table.  Entering the Army during World War Two, he made the Army a career and retired in 1968 as a First Lieutenant, his rank at that time reflecting force reductions following World War Two.  He retired to Idaho where he chose to live as he was an avid hunter, and he died there in 2010.  Baker is a significant figure from Wyoming not only because he won the Congressional Medal of Honor, but because he was part of Wyoming's small African American community.

1985  Alan B. Johnson received his commission as a Federal Judge for the District of Wyoming.

2003  Wyoming filed a petition to delist the Prebbles Jumping Mouse from the Endangered Species List.

October 17

1835 The "Texas Rangers" formed.

1844  The Republic of Texas issued a passport for the widow of Ben-Ash, the deceased chief of the Battise Village of the Coushatta Indians. The passport written by Sam Houston stated:  " Know Ye that the bearer hereof, the widow of Ben-Ash who died lately at this place (Washington-on-the-Brazos), is on her way home to the Coshattee tribe of Indians...near Smithfield on the Trinity river; and they are hereby recommended to the hospitality and kind treatment of the good people of the Republic on the road."

1901  The Auti Stage Line between Buffalo and Sheridan commenced operating.  Attribution:  Wyoming State Historical Society.

1919 

October 17, 1919 Airborne visitors to Casper and more crashes.

Mishaps continued to take a toll on aviators and their planes participating in the 1919 Air Derby.  Included in the mishaps were a directional one, that took an airplane all the way to Casper.

At the time, Casper's air strip was near Evansville.  Portions of it can still be seen there, but you have to know what you are looking at in order to appreciate what it was.

With the ongoing toll on American military aircraft its quite frankly surprising that the race continued, but perhaps at this point it would have been embarrassing to stop it.

One of the features of the aircraft in question is their short engine life.  No doubt more than one engine was replaced on more than one craft during the race.

In other news, it looked at the time as if the Reds were about to fall in Russia.

In the U.S., some worried about homegrown Reds.

New York Herald Cartoon, "To Make America Safe For Democracy", October 17, 1919

1937  University of Wyoming Board of Trustees approved the contract for construction of Student Union.  Attribution:  Wyoming State Historical Society.

1945 Eleven year old girl shot a 700 lb bear with a .22 near Worland.  Attribution:  Wyoming State Historical Society.

1969  One of the most memorable events in Wyoming sports and social history occurred when all fourteen black players on the 1969 University of Wyoming football team walked into head coach Lloyd Eaton’s office wearing black armbands.  They hoped to convince Eaton to let them wear the armbands the following day in UW's football game against BYU to protest the Mormon Church’s policy against blacks in the Mormon priesthood. Eaton dismissed them all from the team.  According to the football players involved, they were never allowed to even address Eaton and he simply dismissed them.  The team was undefeated at the time.

The event remains controversial, and the actual events remain somewhat murky.  In recent years the Black 14 have come to have been regarded with increasing sympathy, and in 2019 they were invited back to the University and given their letter jackets.

The event put the University in a terrible spot as the football team was amongst the best ever fielded by the University of Wyoming and Eaton's actions effectively gutted the team.  According to the conventional view, Eaton felt that he could not allow the team to be used as a vehicle for protest.  The black team members felt that they weren't given a chance to voice their views and if their version of events is correct, they were not.  The entire matter ended up in a meeting the following day in which the Governor met with the 14 and the Board of Trustees of the University.  In the end no resolution was arrived upon, Eaton remained coach, and the Board of Trustees voted to support Eaton.

The entire matter ended up in litigation.  Judge Kerr, the Federal Judge presiding over the matter, initiated an effort to have the players and the coach meet on November 10, 1969, at the courthouse.  Coach Eaton agreed but the players did not take him up on this, and there was an objection to the suggestion by their attorney who felt that a meeting would be a poor idea due to Eaton's strong personality.  At least a couple of players later indicated that they were not aware that the offer to meet had been made.  The case, therefore, preceded on into litigation, effectively dooming any chance of an immediate resolution.

The Federal suit went up to the 10th Circuit Court of Appeals twice, the entire matter was fought out after the fortunes of the football team that year had been sealed by the event.  In the first decision, the 10th Circuit states as follows:

443 F.2d 422

Joe Harold WILLIAMS et al., Plaintiffs-Appellants,
v.
Lloyd EATON, as Football Coach of the University of
Wyoming, et al., Defendants-Appellees.

On October 18, 1969, a football game was scheduled in Laramie, Wyoming, between the University of Wyoming (hereafter the University) and Brigham Young University (hereafter BYU). BYU is a university located at Provo, Utah, and is owned and operated by the Church of Jesus Christ of Latter-Day Saints. This controversy involves the complaint of Black athletes at the University against alleged racial policies of the Mormon Church and by athletes playing for BYU. And the case concerns also a 'football coaching rule' of the Wyoming University Coach that football players at the University should not participate in demonstrations or protests. Shortly before the scheduled game with BYU the Black athletes at the University had a disagreement with the Coach about the wearing of the armbands as a protest against alleged Mormon beliefs and alleged acts of BYU players and were dismissed from the team, the dismissal being sustained by the University Trustees. The Black athletes then brought this civil rights suit.

The District Court proceedings and issues on appeal

This case arose as a civil rights action under 28 U.S.C. 1331 and 1343 and 42 U.S.C. 1983 for alleged violations of plaintiffs' Federal constitutional rights by their dismissal from the University football team which plaintiffs allege was due to the wearing of black armbands in protest against the views of the Mormon Church at a meeting the day before the game. The complaint sought interlocutory and permanent injunctive relief, a declaratory judgment and damages. Plaintiffs are fourteen of the Black athletes at the University and the defendants are the football coach, defendant Eaton (hereafter the Coach), the University Athletic Director, the Trustees of the University, its President and the State of Wyoming.  Since we feel that the pleadings are of substantial importance we turn to a discussion of their allegations in detail.

The complaint averred that on Friday morning preceding the game plaintiff Williams and thirteen other Black football players entered the coaching offices at the University in civilian clothes wearing armbands; that Williams asked the Coach to discuss the matter of the BYU protest with the fourteen players; that during a subsequent discussion with them the Coach advised the Black athletes that they were dismissed from the football squad for wearing black armbands.

The complaint alleged that such action was a deprivation of plaintiffs' right to peaceably demonstrate under the Constitution of the United States; that they were suspended from the football team without cause and for the sole reason that they wore armbands in peaceable and symbolic demonstration; that the dismissal was without a proper hearing or notice of any charges and without an opportunity being afforded for the plaintiffs to present evidence in their behalf; and that the action was in violation of their rights under the First, Ninth and Fourteenth Amendments of the Federal Constitution and various provisions of the Wyoming Constitution. It was further alleged that the suspension and dismissal of the plaintiffs had the effect of and was intended to penalize them for exercising such rights, and to compel conformance to undefined concepts of personal behavior set by the Coach, the Athletic Director, the University President and the Trustees. The complaint charged further the policy of the Coach and the subsequent ratification of his action by the Trustees amounted to an administrative requirement that was vague and over-broad with a chilling effect on the exercise of First and Ninth Amendment rights. The complaint prayed for convening of a three-judge court, a restraining order and preliminary and permanent injunctions, a declaratory judgment that the dismissal of the athletes by the University was unconstitutional, for damages in the amount of $75,000 for each plaintiff and punitive damages.

By their answer defendants admitted the jurisdiction invoked but denied any violation of plaintiffs' constitutional rights. Among other things they alleged that the action of the Trustees dismissing plaintiffs from the football team was taken after a full and complete hearing and presentation by each plaintiff and by others for them; that such action continued in force their athletic scholarships, subject to later review; that plaintiffs had stated they would not rejoin the team unless permitted to wear the armbands during the game with BYU, and that they would not rejoin if defendant Eaton remained a Coach; that plaintiffs' demands were in violation of their written scholarship agreements, entered with knowledge of the football coaching rule against their participation in protests and demonstrations; and that plaintiffs' dismissal by the Coach had not been solely based or predicated on the fact that plaintiffs were wearing black armbands when they first met with the Coach on the matter.

The answer further claimed that if the defendants had acceded to the demands of the plaintiffs, they would have acted as State officers and agents contrary to the First Amendment prohibition against State establishment of any religion and its guarantee for free exercise of religion, and like provisions of the Wyoming Constitution. Also the answer averred that the complaint failed to allege facts constituting a cause of action on which damages could be awarded for the reason that the defendants are all 'immune from such suit.' Further the verified answer denied that plaintiffs sustained any damage and denied the allegation of the verified complaint that the amount in controversy exceeds $10,000, exclusive of interest and costs. By counterclaim defendants prayed for injunctive relief against further false or inflammatory statements by plaintiffs' claims that the defendants had denied plaintiffs' constitutional rights and had practiced racial discrimination against them.

The District Court held an evidentiary hearing on the application for a temporary restraining order. On conclusion of the hearing the Court denied the application for the restraining order and for a three-judge court. Then after answering the defendants filed a 'Motion to Dismiss and/or for Summary Judgment.' The Court granted leave for the filing of supporting and opposing affidavits. After the affidavits were filed and on consideration of them and the transcript of hearing on the restraining order the Court entered its 'Order Granting Motion To Dismiss (With Findings).' 310 F.Supp. 1342.

The Order of Dismissal stated that it was granted for two reasons (1) that the complaint failed to state a claim on which relief can be granted, there being immunity of the State and the individual defendants from suit under the Eleventh Amendment and Wyoming law; and (2) that the complaint should be dismissed for lack of jurisdiction for the reason that the claim for damages is insubstantial and totally speculative, which reason was supported by detailed findings of fact made from the testimony and affidavits. The counterclaim of defendants was also dismissed and no cross-appeal from that part of the order was taken.

In its findings in support of the second ground for dismissal of the plaintiffs' claims, the Court said that 'based upon the test of credibility, the operative facts, from the whole of this record * * *' /3/ that these facts were found; that the plaintiffs had never previously protested against the rule of the Coach that University athletes not participate in demonstrations or protests; that the Black athletes had been wearing armbands at the meeting with the Coach when they were dismissed from the football team; that the armbands were worn in specific protest against specific beliefs of the Mormon church and BYU, with intent on the part of the plaintiffs to demonstrate during the scheduled game; and that they were notified by the Coach that they were dismissed from the team for undertaking such demonstration-protest; and that the plaintiffs stated during an emergency meeting of the Trustees that they would not return to the football team unless they were permitted to wear the armbands or so long as the defendant Eaton remained as football coach at the University. The Court found that had defendants acceded to the demands of the plaintiffs, such action would have been violative of the First Amendment principles requiring neutrality in religious matters and similar provisions in the Wyoming Constitution, and that the plaintiffs' damage claims were therefore insubstantial. We note here that opposing testimony and affidavits for the plaintiffs conflicted with proof of the defendants in several particulars and that the plaintiffs denied that they had insisted on wearing the armbands during the game.

The plaintiffs brought this appeal and we view it as involving these principal questions:

(1) Whether the Eleventh Amendment or Wyoming law afford immunity to the defendants from the civil rights claims seeking injunctive and declaratory relief and damages for allegedly unconstitutional acts;

(2) whether the complaint stated any claim for relief under the First Amendment and Federal constitutional decisions on freedom of expression;

(3) whether the order was proper ad a dismissal for failure to state a claim for relief or as a summary judgment; and

(4) whether the First Amendment establishment and free exercise clauses and similar Wyoming provisions required and justified defendants' actions.

The Eleventh Amendment and The Wyoming Constitution

We turn first to the holding of the District Court that this action was barred by the immunity from suit conferred by the Eleventh Amendment and the Wyoming Constitution. See 310 F.Supp. at 1349-1350. The principal provisions are set out in the margin.4 The Wyoming constitutional provision referred to states that 'suits may be brought against the state in such manner and in such courts as the legislature may by law direct.' Art. 1, 8, Wyo. Constitution. And the State statutes declare that any action permitted by law against the University Trustees and several other named agencies 'is hereby declared to be an action against the State of Wyoming and hereafter no action shall be brought against any of such boards, commissions or trustees except in the courts of the State of Wyoming and no action shall be maintained against any of such boards, commissions or trustees in any other jurisdiction.' 1-1018, Wyo. Statutes of 1957.5

Thus, by law immunity of the Trustees from suit is waived only as to such actions 'in the courts of the State of Wyoming.' We do not feel the immunity was waived as to the suits in the Federal Courts. Such waiver provisions are strictly construed. Harrison v. Wyoming Liquor Commission, 63 Wyo. 13, 177 P.2d 397, 399; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, 356 F.2d 599 (10th Cir.). Where there is no clear intent in such a waiver of immunity statute to subject the state agencies to actions in the Federal Courts such suits may not be maintained. Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573, 66 S.Ct. 745, 90 L.Ed. 862; Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 467, 65 S.Ct. 347, 89 L.Ed. 389; Great Northern Insurance Co. v. Read, 322 U.S. 47, 64 S.Ct. 873, 88 L.Ed. 1121; Murray v. Wilson Distilling Co., 213 U.S. 151, 29 S.Ct. 458, 53 L.Ed. 742.

In facing this issue appellants' first contend that the immunity conferred by the constitutional provisions has been waived by defendants in this suit. The argument is that the answer admitted the jurisdiction invoked and that the defendants also sought affirmative relief by the prayer for an injunction so that the immunities were waived. At this point we note that the answer alleged that the defendants were immune from suit.

This waiver question turns on Wyoming law as to whether an authorization for such waiver was given by State law. Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 467, 65 S.Ct. 347. The Wyoming Constitution seems clear in its provision that amenability to suit is granted 'in such manner and in such courts as the legislature may by law direct.' Despite the inequities that the immunity may produce, it '* * * is so well established in this state that any change must be effected by the legislature rather than by the courts.' Denver Buick, Inc. v. Pearson, 465 P.2d 512, 514 (Wyo.); Bondurant v. Board of Trustees of Memorial Hospital, 354 P.2d 219 (Wyo.). Such waiver must be by an express legislative provision. Hjorth Royalty Co. v. Trustees of University, 30 Wyo. 309, 222 P. 9, 11.

There is no Wyoming statute waiving the immunity from this type of suit in the Federal Court. The plaintiffs point to the general provision in 9-132, Wyo. Statutes of 1957, authorizing the Attorney General to go into State or Federal Court to prosecute or defend suits on behalf of the State whenever its interests would be best served by so doing. However, we are not persuaded that this statute constitutes the required waiver or authorizes waiver by the Attorney General in view of the State constitutional requirement for waiver by statute and the strict construction of statutes dealing with such waivers. Harrison v. Wyoming Liquor Commission, supra; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, supra. We feel that the Attorney General was not authorized to waive the immunity conferred by the Eleventh Amendment, if such waiver was made by the pleading. See Utah Construction Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951, 955 and Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 468, 65 S.Ct. 347. Therefore, we must consider the impact of the constitutional provisions on immunity from suit.

Insofar as the claims for injunctive and declaratory relief are concerned, the principles are well established. 'It is the settled doctrine of this court that a suit against individuals for the purpose of preventing them as officers of a state from enforcing an unconstitutional enactment to the injury of the rights of the plaintiff, is not a suit against the state within the meaning of that amendment.' Smyth v. Ames, 169 U.S. 466, 518, 18 S.Ct. 418, 422, 42 L.Ed. 819; see also Ex parte Young, 209 U.S. 123, 155-156, 28 S.Ct. 441, 52 L.Ed. 714; Larson v. Domestic & Foreign Corporation, 337 U.S 682, 690, 69 S.Ct. 1457, 93 L.Ed. 1628; McCoy v. Louisiana State Board of Education, 332 F.2d 915 (5th Cir.); and School Board of City of Charlottesville, Va. v. Allen, 240 F.2d 59, 62-63 (4th Cir.). And if the plaintiffs establish a violation of Federal constitutional rights and entitlement to relief under the Federal civil rights acts, the Wyoming Constitution may not immunize the defendants and override the Federal constitutional principles in view of the Supremacy Clause. Therefore, if a violation of Federal constitutional rights is established by plaintiffs, the immunity under the Eleventh Amendment and the Wyoming Constitution would not bar injunctive or declaratory relief against the defendants other than the State of Wyoming. McCoy v. Louisiana State Board of Education, supra, and Dorsey v. State Athletic Commission, 168 F.Supp. 149 (E.D.La.), aff'd 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028. And the Federal Court would have jurisdiction to grant such relief, even though the claim for money damages is barred by the immunity, as we discuss below. See Hopkins v. Clemson Agricultural College, 221 U.S. 636, 649, 31 S.Ct. 654, 55 L.Ed. 890.

With respect to the State of Wyoming, we are satisfied that the dismissal was proper. In view of the principles of the Eleventh Amendment relief could not be granted against the State itself, and the State is not a person within the meaning of the civil rights statute. 42 U.S.C. 1983; Whitner v. Davis, 410 F.2d 24, 29 (9th Cir.).

The claims for money damages present a more difficult problem. In some circumstances State officers may be sued for money damages as individuals under the civil rights statutes. See Whitner v. Davis, supra at 30. And since suits for injunctive relief against unconstitutional acts by State officers are not viewed as unconsented suits against the State under the authorities cited above, some courts have held that a claim against them for money damages may also be maintained on the ground that the immunity does not shield unconstitutional action. See, e.g., Sostre v. Rockefeller, 312 F.Supp. 863, 879 (S.D.N.Y.), and cases there cited.

However, we feel that the basis for allowing equitable suits against unconstitutional action is that they merely enjoin such acts, and we believe the result is different where the relief sought would 'expend itself on the public treasury or domain, or interfere with the public administration. Ex parte New York, 256 U.S. 490, 500, 502, 41 S.Ct. 588, 590, 591, 65 L.Ed. 1057.' Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209. When the action in essence is for recovery of money from the State the immunity is available even though individual officials are nominal defendants. See Ford Motor Co. v. Department of Treasury of Indiana, supra, 323 U.S. at 464, 65 S.Ct. 347; Hamilton Manufacturing Co. v. Trustees of State Colleges in Colorado, supra; and Westberry v. Fisher, 309 F.Supp. 12, 18-20 (D.Me.); contra, Sostre v. Rockefeller, supra.

The complaint before the District Court named defendants Eaton (the Coach), Jacoby (the Athletic Director), and the several Trustees and President of the University by name and with express description of their positions. Brief allegations were made also about their official functions. Each paragraph describing these several defendants concluded with the statement that he or they were sued in their official capacity. The District Court concluded that the complaint does not contain any allegation that the defendants were personally liable. 310 F.Supp. at 1350. We agree, finding no averment in the complaint that may reasonably be interpreted as asserting a claim for money damages against these defendants in their individual capacities. Since the money claim alleged was directed solely against them in their official capacities, and since there was no waiver of immunity of such State officers or agents from suit, we conclude that the dismissal as to the claims for money damages against them was proper.

The First Amendment and Federal Constitutional Decisions on Freedom of Expression

The starting point for weighing the constitutional claim of the plaintiffs is Tinker v. Des Moines Independent School District, et al., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731. At least with respect to the allegations of the complaint before us, the Tinker case bears obvious similarities in that the claimed right was there asserted for the wearing of black armbands to protest the Government's policy in Vietnam. The plaintiffs were suspended for wearing armbands. Nominal damages and an injunction were sought against enforcement of a regulation that students would be requested to remove protest armbands and that they would be suspended until their removal.

After an evidentiary hearing the District Court dismissed the complaint on the ground that the action of the school authorities was reasonable in order to prevent disturbance of school discipline. The Eighth Circuit affirmed without opinion, being equally divided. The Supreme Court reversed, holding that First Amendment rights of expression were violated and that there was no showing or finding that the conduct in question would materially interfere with school discipline. Because of its controlling significance in this case, we refer to the following reasoning of the Supreme Court:

'First Amendment rights, applied in light of the special characteristics of the school environment, are avilable to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the school-house gate.' (393 U.S. at 506, 89 S.Ct. 736)

'In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained. Burnside v. Byars, supra, (363 F.2d) at 749.' (393 U.S. at 509, 89 S.Ct. at 738)

'* * * A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer(ing) with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. Burnside v. Byars, supra, (363 F.2d) at 749. But conduct by the student, in class or out of it, which for any reason-- whether it stems from time, place, or type of behavior-- materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. Cf. Blackwell v. Issaquena County Board of Education, 363 F.2d 749 (C.A.5th Cir. 1966).' (393 U.S. at 512-513, 89 S.Ct. at 740)

See also Burnside v. Byars, 363 F.2d 744 (5th Cir.); Saunders v. Virginia Polytechnic Institute, 417 F.2d 1127 (4th Cir.); Aguirre v. Tahoka Independent School District, 311 F.Supp. 664 (N.D.Tex.); and Frain v. Baron, 307 F.Supp. 27 (E.D.N.Y.).

Plaintiffs' averments have been outlined in detail. Their allegations and affidavits in essence said that they were dismissed from the football team by the Coach during their meeting with him; that he stated that they were dismissed from the squad for wearing black armbands; and plaintiffs averred that their dismissal from the team was without cause and for the sole reason that they wore armbands in peaceable and symbolic demonstration. Defendants' answer made general denial covering such allegations.

There was no showing before the District Court of the plaintiffs' conduct producing or that it likely would produce any disturbance interfering with school discipline or the interests which the authorities are entitled to protect, under the principles of the Tinker case. Whether such circumstances may have existed was a matter that was not established conclusively so that a summary judgment could be entered against the plaintiffs. And whether at trial circumstances may be established justifying the defendants' actions under the standards of Tinker and similar cases, we cannot say. Nevertheless, for reasons discussed more fully below, dismissal for insufficiency of the allegations or by way of summary judgment was inappropriate. In the light of the principles of the Tinker case and similar authorities, we cannot say that the complaint fails to state a claim on which relief could be granted or that summary judgment was proper.

We have considered our opinion in Jones v. Hopper, 410 F.2d 1323, cert. denied, 397 U.S. 991, 90 S.Ct. 1111, 25 L.Ed.2d 399, involving a civil rights claim where infringement of First Amendment rights was alleged by refusal to reappoint a professor, assertedly because of speeches and writings offensive to the Trustees. Jones v. Hopper held the complaint insufficient in view of the statutory authority of the Trustees to appoint, remove, discharge and suspend professors, and in view of the lack of any contractual arrangement for renewal of the professor's employment. Here, however, plaintiffs alleged irreparable harm from their dismissal from the team in that their ability to promote their careers, practice and perform their skills has been denied them, and that the dismissal caused them to lose their chance to be observed by scouts as potential professional football players during the 1969 football season, and has caused them emotional and mental stress and anxiety. The answer alleged the existence of written athletic scholarship agreements, stating, however, that they had been continued in force subject to further review. Nevertheless, we view the interests and injuries averred by these plaintiffs as distinguishing the case from Jones v. Hopper.

Propriety of the Order of Dismissal

As indicated above, the District Court order stated that the complaint was dismissed for failure to state a claim on which relief could be granted. 310 F.Supp. at 1349-1350. However, 'in appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; Parkinson v. California Co., 233 F.2d 432 (10th Cir.); and see Jones v. Hopper, supra, 410 F.2d at 1327. The allegations must be taken as true and all reasonable inferences from them must be indulged in favor of the complaint. See Olpin v. Ideal National Insurance Co., 419 F.2d 1250 (10th Cir.), cert. denied, 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809; and Virgin Islands Corporation v. W. A. Taylor & Co., 202 F.2d 61 (2d Cir.). And viewing the allegations of the complaint under the principles of the Tinker case and similar authorities, we feel that dismissal for failure to state a claim may not be sustained.

However, the order of the District Court and the record persuade us that the Court followed the procedure mentioned in Rule 12(b), F.R.Civ.P., and treated the motion as one for summary judgment. The Court afforded the parties opportunity to submit affidavits, and gave detailed consideration to the pleadings, the transcript of the temporary restraining order hearing, and the affidavits. Since matters outside the pleading were presented and not excluded by the Court but considered by it, the motion was treated as one for summary judgment. Rule 12(b); Ryan v. Scoggin, 245 F.2d 54 (10th Cir.); Whitner v. Davis, supra.

Viewing the order as granting summary judgment, we believe it may not be sustained as to the claims against the State officers for equitable and declaratory relief. There were disputed issues of substantial importance that remained. The plaintiffs alleged and stated by affidavit that they were discharged for wearing the armbands at the time of the meeting with the Coach. The defendants, however, alleged and stated by affidavit that the plaintiffs insisted that they would not rejoin the team unless they were permitted to wear the armbands during the game; that they would not rejoin if the Coach remained in his position; and that if defendants had acceded to the demands relating to the armbands, they would have violated constitutional principles on neutrality in religious matters-- thereby raising an issue on causation. Thus a central issue of fact was unresolved and remained for disposition by trial.

Summary judgment was proper only if no material issue of fact remained and a formal trial would have been fruitless. Rule 56, F.R.Civ.P.; Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967; Frey v. Frankel, 361 F.2d 437, 442 (10th Cir.). The summary procedure '* * * does not serve as a substitute for a trial of the case nor require the parties to dispose of litigation through thr use of affidavits.' Bushman Construction Co. v. Conner, 307 F.2d 888, 892 (10th Cir.); Frey v. Frankel, supra, 361 F.2d at 442. We cannot agree that the making of findings and the dismissal-- which was in effect a summary judgment-- was proper.

On appeal the defendants have argued that the findings of fact in the order were not clearly erroneous but are supported by substantial evidence and justify an affirmance. However, the findings were not made after trial and so the provisions of Rule 52(a), F.R.Civ.P., according respect to such findings, do not apply. 3 Barron and Holtzoff, Federal Practice and Procedure, 202 (Charles A. Wright, rev. ed. 1958). Instead, they were made only on consideration of the pleadings, affidavits and the transcript of the hearing on the application for a temporary restraining order, which had been earlier denied. Although there had been an adversary hearing on the temporary restraining order application, a finding based on the interlocutory hearing would not serve as the ground for a final judgment. See Sooner State Dairies, Inc. v. Townley's Dairy Co., 406 F.2d 1328 (10th Cir.).

Religious Beliefs and Restrictions of the Free Exercise and Establishment Clauses

The remaining principal issue concerns the First Amendment free exercise and establishment clauses which were binding on defendants as State officers, Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and like provisions of the Wyoming Constitution. The defendants claimed that the constitutional provisions on religion prohibited acceding to the plaintiffs' demands, to avoid favoring a religious belief or interfering with such beliefs of others. The District Court upheld the defense of the actions by the State officers under these constitutional provisions. Its order concluded that had the defendants acceded to plaintiffs' demands (found to have included the right to wear the armbands during the game), then defendants' action would have been violative of the establishment clause and its requirement of complete neutrality in religious matters. The order held also that such action would have violated like provisions on religious toleration and free exercise in the Wyoming Constitution. 310 F.Supp. at 1352-1353.

The Federal Constitution enjoins strict neutrality on State officials in matters of religious belief. Epperson v. Arkansas, 393 U.S. 97, 103-104, 89 S.Ct. 266, 21 L.Ed.2d. 228; Abington School District v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 10 L.Ed.2d 844; Everson v. Board of Education, 330 U.S. 1, 14-15, 67 S.Ct. 504, 91 L.Ed. 711. The Abington opinion says the constitutional ideal is '* * * absolute equality before the law, of all religious opinions and sects * * *. The government is neutral, and, while protecting all, it prefers none, and it disparages none.' 374 U.S. at 215, 83 S.Ct. at 1567. 'It may not be hostile to any religion * * *' Epperson v. Arkansas, supra, 393 U.S. at 104, 89 S.Ct. at 270. Of course, these constitutional restrictions applied through the Fourteenth Amendment govern only State action. The First Amendment provisions would be implicated only if the State has been significantly involved by defendants' actions. Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 18 L.Ed.2d 830; Adickes v. S. H. Kress & Co., 398 U.S. 144, 170-171, 90 S.Ct. 1598, 26 L.Ed.2d 142.

We do not feel that the present record supported a summary disposition on the ground that these First Amendment principles required or justified the defendants' actions. While we realize the importance of the principles which the District Court was properly considering, the facts relating to them were in significant conflict. After trial ultimate findings may show that the plaintiffs were dismissed from the team because of their demands to wear the armbands during the game. And it may be found that permission therefor by the defendants would have been recognized as a significant involvement of the State officers in an expression of hostility to the religious beliefs of others.10 Such findings may justify the defendants' actions on the constitutional principles of religious neutrality. However, such close and delicate constitutional questions should be decided when the facts are fully developed at trial.

Conclusion

Accordingly the order is affirmed with respect to the dismissal as to the State of Wyoming, and with respect to the dismissal as to the claims for money damages against the State officers; the order is vacated with respect to the dismissal of the claims against the State officers for equitable and declaratory relief; and the cause is remanded for further proceedings.

1 Defendants' answer described the football coaching rule of the football coaching staff of the University of Wyoming as one '* * * prohibiting demonstrations or protests by members of the University of Wyoming football team.'

2 On their motion this appeal has been dismissed as to plaintiffs John M. Griffin, Donald K. Meadows and Theodor T. Williams

3 310 F.Supp. at 1350

4 The Eleventh Amendment to the Federal Constitution provides: 'The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects or any Foreign State.'
While one of the plaintiffs was a Wyoming resident, the Amendments as expanded applies to this suit by him, as well as to the remaining plaintiffs, who are non-residents of the State. See Parden v. Terminal Ry. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 12 L.Ed.2d 233.
Article 1, 8 of the Wyoming Constitution provides:
'8. Courts open to all; suits against state.-- All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay. Suits may be brought against the state in such manner and in such courts as the legislature may by law direct.'

5 1-1018, Wyoming Statutes of 1957, provides: '1-1018. Actions against state agencies deemed actions against state; jurisdiction.-- Any action permitted by law, which shall be brought against Wyoming farm loan board, board of land commissioners, state board of charities and reform, public service commission of Wyoming, state board of equalization of Wyoming, or the trustees of the University of Wyoming is hereby declared to be an action against the State of Wyoming and hereafter no action shall be brought against any of such boards, commissions or trustees except in the courts of the State of Wyoming and no action shall be maintained against any of such boards, commissions or trustees in any other jurisdiction.'
The Board of Trustees of the University is constituted a body corporate and given numerous powers by 21-352 and 21-353, Wyo. Statutes of 1957. They are empowered to appoint a person to examine and approve payment of all legal claims against the corporation, among other things. However, there is no provision in these statutes authorizing suits against the Trustees. We find no statute dealing with the Coach or the Athletic Director of the University.

6 President Carlson testified that the Coach had said at the meeting with the Trustees the night before the game that he had called the rule against protests and demonstrations to the attention of the team at least three other times in the last year, * * * 'the reason being that he felt that this would have an adverse effect upon team unity, upon their grades, if they were involved in protests and such things as this. This was at spring practice, at the end of spring practice in 1969.' There also was testimony at the hearing on the application for the restraining order by he University President on the football coaching rule which included the statement that 'Coach Eaton said that in order to maintain proper discipline on the football team he had certain rules and regulations, and this was one of them.'
The order of the District Court included findings that '* * * the Board further found that the football coaching rule was imposed for disciplinary purposes looking to the unity of the football team and that the plaintiffs had been well aware and had full knowledge of the existence of the coaching rule * * *' 310 F.Supp. at 1347. We are not persuaded that these statements and findings so established that there was or would have been any material disruption of class work, substantial disorder of invasion of the rights of others as to justify a summary judgment against the plaintiffs. Tinker v. Des Moines School District, supra, 393 U.S. at 513, 89 S.Ct. at 740.

7 As discussed below, the District Court considered matters beyond the pleadings so that the ruling must be viewed as a summary judgment

8 We note also plaintiffs' claim that the football coaching rule was unconstitutional for over-breadth and vagueness. The reason for the plaintiffs' dismissal from the team and the manner of the application of the rule are within the area of factual dispute, although the rule iteslf in broad terms was admitted by the defendants. Until the facts and circumstances surrounding the application of the rule to the plaintiffs are decided and the reasons for their dismissal determined, the claim of impingement on First Amendment rights by general prohibition against protests or demonstrations by the players may not be dismissed as wholly insubstantial. See Sword v. Fox, 317 F.Supp. 1055, 1062-1067 (W.D.Va.), and cases there cited

9  An affidavit submitted for plaintiffs stated that at the time of the meeting with the Trustees the plaintiffs had indicated they thought they were entitled to wear the armbands during the game, but that they had not planned to do so if the Coach refused to permit such action. This affidavit also stated that the plaintiffs had not said they would wear the armbands against the directions of the Coach or the Trustees if returned to the game 

10  Plaintiffs' brief suggests that instead it might be concluded that they were protesting against manifestations of racism that plaintiffs saw in BYU and its football team

The first 10th Circuit decision did not end the matter, and it came back for a second one, in which the court stated:

This appeal is a sequel to our earlier consideration of this controversy involving several Black athletes of the University of Wyoming football team. They were dismissed from the team following a dispute over their intentions to wear black armbands during a football game with Brigham Young University. After their dismissal they sought relief by this civil rights action, claiming violation of First Amendment rights.

In the prior appeal we affirmed in part, sustaining the dismissal of claims against the State of Wyoming and all damage claims, but reversed a summary judgment and dismissal of claims for equitable and declaratory relief as to other defendants, and remanded for further proceedings. 443 F.2d 422. After a trial to the court on these remaining claims for declaratory and injunctive relief, the trial court made findings of fact and conclusions of law in favor of the defendants and dismissed again. 333 F.Supp. 107. Essentially the court upheld the defendants' actions in dismissing the athletes from the team on the ground that the Federal and Wyoming Constitutions mandated complete neutrality on religious matters which would have been violated otherwise by the armband display expressing opposition to religious beliefs of the Church of Jesus Christ of Latter-Day Saints on racial matters.

The general circumstances of the controversy have been set out by the trial court and our earlier opinion and need not be repeated. We feel it important to discuss the facts in detail based on the trial record only in respect to two principal issues which will be treated.1 We believe the controlling issues on this appeal are as follows:

(1) whether findings of fact 14 and 15 made by the trial court, dealing with the purpose of the athletes in seeking to wear the armbands and the position they took thereon, are clearly erroneous;

(2) whether the determination by the Board of Trustees of the University refusing to permit the athletes to wear the armbands on the field during the game was a reasonable and lawful ruling or regulation under the principles of Tinker v. Des Moines Independent School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731, and similar cases.

We do not treat certain additional propositions forcefully argued for the athletes on this appeal. Arguments are made that the football coaching rule against participation generally by the athletes in demonstrations was invalid. However, we feel that questions concerning the rule need not be decided. The original dismissal of the athletes by Coach Eaton for violation of the rule was not the end of the matter. Later the controversy was considered by the Trustees and President Carlson at a conference with the athletes and the athletic officials. It was found by the trial court that the decision of the Trustees to sustain the dismissal of the athletes was made after this conference during which the athletes insisted on the right to wear the armbands during the game. And it was further found that the Trustees' decision was made on the ground that permitting the wearing of the armbands would be in violation of the constitutional mandate requiring complete neutrality on religion.2 Therefore our decision focuses on the lawfulness of the Trustees' action.

Findings 14 and 15 and the purpose of the athletes in seeking to wear the armbands

The plaintiffs challenge findings 14 and 15 of the trial court, arguing that they are clearly erroneous under the test of United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746.3

The plaintiffs first challenge the portion of finding 14 that there is no merit in the contention that one of the purposes of the armband display was protesting against "cheap shots" and name-calling by members of the Brigham Young team. There was testimony by plaintiffs Williams and Hamilton that they were protesting against such conduct by the BYU team; Governor Hathaway and defendants Carlson and Hollon also said the plaintiffs did complain at the meeting with the Trustees about such conduct of the BYU players. However, plaintiffs Williams and Hamilton also said that at various meetings they were protesting against racial policies, Williams referring to such policies of BYU and Hamilton to those of the Mormon Church. And there was testimony by several defendants that centered on the demand of the athletes to wear the armbands in the game to protest views of the Mormon Church. Viewing the record as a whole we cannot agree with this challenge to the findings.

The plaintiffs also say that there was error in the portion of finding 14 that all of the plaintiffs refused to play against Brigham Young University unless they could wear the armbands. And they argue also that finding 15 was in error in stating that all of the plaintiffs refused to play again for the University if defendant Eaton remained as coach. They say the proof fails to establish these facts as to all of the individual plaintiffs and that there was contrary proof. The evidence was in conflict. There was, however, testimony by Governor Hathaway and President Carlson about the discussions and conduct of the plaintiffs at the meeting which Governor Hathaway and President Carlson had separately with them which supports these findings. Defendant Pence's testimony also supports these findings.

The plaintiffs contend that we must make our own examination of the record and that we are not at liberty to accept the findings on such constitutional issues merely because we consider them not clearly erroneous. They rely on Guzick v. Drebus, 431 F.2d 594, 599 (6th Cir.), cert. denied, 401 U.S. 948, 91 S.Ct. 941, 28 L.Ed.2d 231. We are required of course to consider the record ourselves when findings of fact of the trial court are challenged. However, we have not treated findings made in cases involving constitutional rights differently from those in other civil cases. See e. g., Keyes v. School District No. 1, Denver, Colorado, 445 F.2d 990, 999, 1000 (10th Cir.), cert. granted, 404 U.S. 1036, 92 S.Ct. 707, 30 L.Ed.2d 728; Linebarger v. State of Oklahoma, 404 F.2d 1092 (10th Cir.), cert. denied, 394 U.S. 938, 89 S.Ct. 1218, 22 L.Ed.2d 470; Caldwell v. United States, 435 F.2d 1079 (10th Cir.); Brown v. Crouse, 425 F.2d 305 (10th Cir.); Carpenter v. Crouse, 389 F.2d 53 (10th Cir.).4

We believe that the test of Rule 52, F.R.Civ.P., applies here. "The question for the appellate court under Rule 52(a) is not whether it would have made the findings the trial court did, but whether 'on the entire evidence [it] is left with the definite and firm conviction that a mistake has been committed."' Zenith Corp. v. Hazeltine, 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L. Ed.2d 129. The weighing of the conflicting evidence and the credibility of witnesses was for the trial court, and its findings will not be disturbed unless they are clearly erroneous. Rule 52(a) F.R.Civ.P.; Linebarger v. State of Oklahoma, supra at 1094, 89 S.Ct. 1218. We are satisfied that the record supports the challenged findings and that they are not clearly erroneous.

First Amendment principles under Tinker v. Des Moines Independent School District

Both plaintiffs and defendants rely on the principles stated in the Tinker case and similar decisions. The plaintiffs argue that they come within its bounds of freedom of expression recognized therein as applying to students in different places, including the playing field. 393 U.S. at 512, 513, 89 S.Ct. 733. On the other hand the defendants say that their actions were within the exceptions stated in the opinion. We feel the controlling guidelines from the Tinker case are the following:

"A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinion, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. * * * But conduct by the student, in class or out of it, which for any reason-whether it stems from time, place, or type of behavior-materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. * * *"

". . . The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom." [citations omitted]

393 U.S. at 512, 513, 89 S.Ct. at 740.

The trial court concluded that had the defendants, as governing officials of the University of Wyoming, permitted display of the armbands, their actions would have been violative of the First Amendment establishment clause and its requirement of neutrality on expressions relating to religion, citing School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844, and similar cases. The Court further grounded its conclusions on the provisions of the Wyoming Constitution guaranteeing the free exercise and enjoyment of religion and worship without discrimination or preference.

". . . The government is neutral, and, while protecting all [religious opinions and sects], it prefers none, and it disparages none." Id. at 215, 83 S.Ct. at 1567. Thus stemming from state and federal law there is strong support for a policy restricting hostile expressions against religious beliefs of others by representatives of a state or its agencies. We feel that the Trustees' decision was a proper means of respecting the rights of others in their beliefs, in accordance with this policy of religious neutrality.

The plaintiffs vigorously deny that there would have been state action or a violation of the First Amendment principles on religion by permitting the armband display. Without deciding whether approval of the armband display would have involved state action or a violation of the religion clauses, we are persuaded that the Trustees' decision was lawful within the limitations of the Tinker case itself. Their decision protected against invasion of the rights of others by avoiding a hostile expression to them by some members of the University team. It was in furtherance of the policy of religious neutrality by the State. It denied only the request for the armband display by some members of the team, on the field and during the game. In these limited circumstances we conclude that the Trustees' decision was in conformity with the Tinker case and did not violate the First Amendment right of expression of the plaintiffs. See Sword v. Fox, 446 F.2d 1091, 1097, 1098 (4th Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 534, 30 L.Ed.2d 547.

We do not base our holding on the presence of any violence or disruption. There was no showing or finding to that effect and the trial court's conclusions of law state that the denial of the right to wear the armbands during the game ". . . was not predicated upon the likelihood of disruption, although such a demonstration might have tended to create disruption." Instead the trial court referred only to the mandate of complete neutrality in religion and religious matters as the basis for the court's ruling.

We hold that the trial court's findings and this record sustain the Trustees' decision as lawful, made for the reasons found by the trial court, as a reasonable regulation of expression under the limited circumstances involved, in accord with the principles of the Tinker case on free speech.

Affirmed.

1  There is substantial discussion by both briefs on the question whether the plaintiffs would, in any event, be barred from reinstatement to the team by rules of the NCAA and the Western Athletic Conference. This question need not be decided in view of the conclusions we reach

2  This conference was attended personally by the Governor, President Carlson and several Trustees. Except for two Trustees who were unavailable, the remaining Trustees participated by a telephone conference call arrangement which permitted them to hear the discussions and to express their views. At different times the plaintiffs, and also the Coach and the Athletic Director, discussed the matter with the Board. There is no claim by the plaintiffs that there was a denial of procedural due process in the various proceedings by the University officials or the Trustees

3  Findings of fact 14 and 15 were as follows: "14. That taking all of the evidence and facts adduced by the parties into consideration, the Court finds that there is no merit in the contention raised by the Plaintiffs in their complaint filed herein that one of the purposes of the black armband display was that of protesting against the alleged cheap shots and name-calling charged to members of the Brigham Young University football team; on the contrary, the Court finds that such allegation is without merit and that the sole and only purpose in the armband display was that of protesting against alleged religious beliefs of the Church of Jesus Christ of Latter-Day Saints, commonly known as the Mormon Church, and Brigham Young University, which the Plaintiffs considered one and the same, and the Court further finds that each of the Plaintiff football players refused to participate in the football game with Brigham Young University as members of the football team of the University of Wyoming unless they were permitted to demonstrate against the religious beliefs of the Mormon Church by wearing black armbands upon the playing field.
"15. That, taking all of the evidence and facts adduced by the parties into consideration, the Court finds that each of the Plaintiffs refused to play football as a member of the University of Wyoming football team unless and until the Defendant, Lloyd Eaton, was removed from his position as Head Football Coach of the Universty of Wyoming."

4  In some cases the Supreme Court has, of course, reviewed the record where constitutional rights were involved, reaching a conclusion different from that of a state court where there was compelling evidence of a constitutional wrong. See Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697; Blackburn v. Alabama, 361 U.S. 199, 209, 80 S.Ct. 274, 4 L.Ed.2d 242. We cannot agree that such cases indicate that we should depart from Rule 52 standards in reviewing findings on a record such as this.

While UW's football fortunes declined after this event, amazingly the Cowboys defeated the Cougars on October 18, 1969, in spite of the walkout.  Eaton resigned as coach in 1971, after a series of defeats dating back to the 1969 event.  Ten of the Fourteen graduated from university.  Four went on to play in the National Football League.  One became a prominent educational figure in Casper.  The Mormon church changed its doctrine on this issue in 1978.

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

Some Gave All: The Black 14, University of Wyoming, Laramie Wyoming

This is a monument to The Black 14 in the University of Wyoming's Student Union.

The Black 14 were fourteen University of Wyoming football players who, in 1969, wanted to wear black armbands during the University of Wyoming v. Brigham Young football game. The action was intended to protest the policy of the Mormon church in excluding blacks from leadership roles in their church.  Coach Eaton, the UW football coach at the time, dismissed all fourteen players prior to the game, ending their football careers at UW and, at least in some cases, simply ending them entirely.

 

The event was controversial at the time, and to a lesser degree, has remained so.  Generally, in most of Wyoming, Coach Eaton was supported, rather than the players, which doesn't mean that the players did not have support.  As time has gone on, however, views have changed and generally the players are regarded as heroes for their stand.  Views on Eaton are qualified, with some feeling he was in the wrong, and others feeling that he was between a rock and a hard place and acted as best as

he could, even if that was not for the best.

It is indeed possible even now to see both sides of the dramatic event.  The players wanted to wear black armbands in protest of the Mormon's policy of not allowing blacks to be admitted to the Mormon priesthood and therefore also excluding them from positions of leadership in the Mormon church.  This policy was well know in much of Wyoming as the Mormon theology behind it, which held that blacks were descendant of an unnatural union on the part of Noah's son Cain, resulted in black human beings.  This was unlikely to be widely known, however, amongst blacks at the University of Wyoming, most of whom (but not all of which) came from outside of the state.  A week or so prior to the UW v. BYU game, however, Willie Black, a black doctoral candidate at UW who was not on the football team, learned of the policy.  Black was head of the Black Students Alliance and called for a protest.  The plan to wear armbands then developed.

The protest, therefore, came in the context of a civil rights vs. religious concepts background, a tough matter in any context.  To make worse, it also came during the late 60s which was a time of protest, and there had been one against the Vietnam War just days prior to the scheduled game. Following that, Eaton reminded his players of UW's policy against student athletes participating in any demonstration, a policy which raises its own civil liberties concern. The players went ahead with their plans and Eaton removed all of them from the team.

Looked at now, it remains easy to see why Eaton felt that he had to act, while also feeling that he acted much too harshly.  Not everyone agrees with this view by any means, however.  Many, but a declining number, still feel Eaton was right.  A much larger number feel he was definitely wrong.  Few hold a nuanced view like I've expressed.  Even those who felt that Eaton was right often admire the protesting players, however. 

Anyway its looked at, the Black 14 are now a definite part of Wyoming's legacy as The Equality State, even if most of them were not from here (at least one, and maybe more, were).  This year at Wyoming History Day, a statewide high school history presentation competition, which had the theme of "taking a stand", they were the subject of one static display and two video presentations.  They may be more well remembered now than at any time since the late 1970s, and this memorial in the student union certainly contributes to that.

1969  The Milward L. Simposn Fund created at the University of Wyoming "to further, foster and advance education and learning in the field of political science at the University of Wyoming."

1973 Arab oil-producing nations announced they would cut back oil exports to Western nations and Japan resulting in the Oil Embargo.

1974  An earthquake swarm occurred in Yellowstone.

2014.   Judge Scott Skavdahl issued his written ruling apparently striking down Wyoming's law on marriage, which of course speaks in terms of male and female (it was written in the 1890s) as unconstitutional.  The ruling came only one day after the oral arguments and in advance of his declaration that the ruling would be issued on Monday.  The apparent impact of the ruling (I haven't read the decision) is to hold that Wyoming must recognize same gender marriages and issue marriage licenses accordingly, although given the text of the Wyoming statute, a reasonable question could be raised if the door wouldn't be slightly open to argue that the decision might actually invalidate any new marriages until such time as a new law was drafted, although nobody seems to be arguing that this is the implicit result.  The decision goes into effect on Thursday of this week, as time was built in to allow the state to appeal. The state has indicated that it will not appeal.