The Fight Over the Redskins Trademark and Other Racialized Symbols
By SONIA K. KATYAL
|Monday, December 7, 2009
A few weeks ago, the Supreme Court declined to hear a case involving the trademark for the Washington Redskins. That decision left in place a lower court ruling stating that the plaintiffs had waited too long to bring a case for trademark cancellation – thus triggering the doctrine of laches, under which suits brought too late are barred. Around the same time, a federal judge in North Dakota prohibited the State Board of Education from immediately retiring the Fighting Sioux moniker of the University of North Dakota.
But neither controversy is truly over, and the underlying issue of racialized representations is likely to be discussed and litigated for years to come. With respect to the Washington Redskins, a different set of plaintiffs – and an entirely new case, filed in August 2006 – is waiting in the wings to challenge the trademark on the grounds of its disparaging content. In the UND case, the judge imposed a temporary restraining order on the ground that the state board could not unilaterally alter the deadline without ensuring the tribes' participation. A new hearing has been set.
The legal cases against racially-hostile mascots can be complicated, raising issues related to both intellectual property rights and the First Amendment. Yet the ethical case against such representations could hardly be clearer.
The Widespread Use of American Indian Mascots, and the Damage It Causes
Both of the cases discussed above are painful legacies of an era in advertising that relied on the use of racial or ethnic minorities as the basis for logos, without much attention to the psychological harms such logos can cause, particularly in an educational context.
Sherman Alexie's partly-autobiographical novel "The Absolutely True Diary of a Part-Time Indian" makes the point well. Its fourteen-year-old Native American protagonist courageously decides to attend – and play basketball – at a prestigious all-white high school. As the only boy from the reservation, he faces a daily tirade of taunts: An illustration shows a series of cloud-like white figures bearing down on a small, skinny, bedraggled boy, calling him "Chief," "Sitting Bull," "Tonto," "Squaw Boy," and of course, "Redskin." There is one glaring exception to his solitary confinement as the sole Native American at his school. Every time he plays basketball, he is greeted on the court by the image of the school mascot: a hook-nosed, buck-toothed version of an American Indian, sporting feathers and an angry scowl.
For a moment, put yourself in the shoes of Alexie's protagonist: You are fourteen, and saddled with all the challenges that adolescence brings—from acne, to bad fashion, to painful insecurities -- on top of the differences you are trying so desperately to overcome as a Native American growing up in the United States. In this sense, Alexie's character is no different than many other children who are asked to overcome tremendous cultural barriers in search of an education. But there is one thing that makes Alexie's character's experience unique: Every day that he excels in basketball, the one activity that enables him to surpass the racial divide between himself and his classmates, the ubiquitous image of the school mascot reminds him of his limitations.
No other race gets singled out for this sort of caricature, so often and so regularly, in this day and age. The toll such mascots take cannot be justified ethically, no matter how the litigation is resolved.
The Suit To Retire the Washington Redskins Logo
Back in 1972, as Suzan Harjo, one of the plaintiffs in the Redskins case, recounts in the book Team Spirits (edited by C. Richard King and Charles Springwood), this kind of harm motivated a Native American coalition to respectfully ask the team's attorney to change the name of the Washington Redskins team. They asked him to imagine an NFL in which "the other teams are known as the New York Kikes, the Chicago Polocks, the San Francisco Dagoes, the Detroit Niggers, the Los Angeles Spics, etc."
Their efforts were largely met with silence until twenty years later, when, in 1992, a group of native leaders from diverse tribes sued to request the trademark's cancellation. That year, thousands of Native Americans protested at the Super Bowl in Minneapolis. Speaking to Congress, Suzan Harjo commented, "We have emotional scarring that is taking place...the highest rate of teenage suicide of any population in this country, which comes from low self-esteem, which comes from having those kids' elders…mocked, dehumanized, cartooned, stereotyped. That is what is causing the deaths of many of our children. We can't be polite about these problems anymore."
Washington Post columnist Richard Cohen agreed: "It hardly enhances the self-esteem of an Indian youth to always see his people – himself – represented as a cartoon character. And always, the caricature is suggestive of battle, of violence – the Indian warrior, the brave, the chief, the warpath, the beating of tom-toms….Its time the Redskins changed their name. A rose by any other name would smell as sweet, but a team that insists on retaining an offensive name just plain stinks."
In the Washington Redskins case, a U.S. Patent and Trademark Office panel agreed with the plaintiffs that the term "Redskins" was disparaging, and ordered cancellation of the trademark. But U.S. District Judge Colleen Kollar- Kotelly overturned that ruling, claiming that "[t]here is no evidence in the record that addresses whether the use of the term ‘redskin(s)' in the context of a football team and related entertainment services would be viewed by a substantial composite of Native Americans, in the relevant time frame, as disparaging." Yet one plaintiff had observed, for example, that "Redskins" is "the absolute, unquestionably worst term….There is no context in which the term ‘Redskins' is not offensive."
Sadly, we seem to have made little progress since that decision.
The Problem of Commercial Insensitivity Against Native Americans
Americans have proved increasingly and rightly sensitive about representations that are racially derogatory. Thirty plus years ago, American advertising was littered with objectionable stereotypes of people of color. Today, many of those brands have since retired. Even Aunt Jemima has been given a "liberation makeover," replacing her kerchief with a short bobbed haircut, crisp white sweater, set of pearls, and shining smile. Miley Cyrus faced sharp criticism when she was photographed pretending to be Asian by "slanting" her eyes. A few years ago, there was a national outcry when Abercrombie & Fitch put out a white T-shirt featuring caricatures of Asians with slanted eyes and rice-paddy hats that said, "Wong Brothers Laundry Service -- Two Wongs Can Make It White," along with other, similarly themed shirts. Immediately after a public outcry, the shirts were pulled off of the shelves, and the company issued a public statement: "We are truly and deeply sorry we've offended people."
Yet even as African-American and Asian-American stereotypes are widely decried, stereotypical – and sometimes shocking -- caricatures of Native Americans persist largely without complaint: The cigar store Indian; the sports team mascot; and the ubiquitous Halloween costume, complete with feathered headdress, are just the most prominent examples.
Fans who thinks nothing of doing a "tomahawk chop" or exhorting their team to "scalp the enemy" do not always see or understand how those attitudes feed into the longstanding, pervasive harms that minorities often face when their culture is thoughtlessly mocked. Not only do these stereotypes fail to recognize the living reality of Native Americans, but they also suggest that Native culture, unlike any other, is safe to make fun of.
The Benefits to Fans are Far Outweighed by the Costs to Native Americans
Some fans of teams with Native American mascots insist that they are trying to honor—or represent--our country's Native history, and point out that in some cases, it was a desire to "honor" Native Americans that led to the mascots being created. But today, virtually every America Indian advocacy group, and a long list of powerful non-native groups, including the NAACP and the National Education Association, have spoken out against such mascots.
The American Psychological Association, along with many other researchers, has documented a link between self-esteem and racially hostile mascots, pointing out that their use has a negative effect on all students (not just Native students). Testament to the harm that is caused can be found in the fact that, in every case where a Native American mascot exists, there is also a group of Native Americans students and their parents, pleading with the school to change the name.
In 2005, the National Collegiate Athletic Association laudably instituted a policy barring schools from hosting NCAA championships if they use Native American nicknames, mascots, or imagery. Yet many of these decisions have raised tremendous controversy – for instance, at UND and the University of Illinois. Even today, we still witness the image of the "Fighting Sioux," at UND; the startling caricature of "Chief Wahoo" of the Cleveland Indians; and the use of Native American references in the names of the Chicago Blackhawks and Atlanta Braves.
Some students might take these symbols lightly, but their Native American classmates do not. Consider the words of Charlene Teters, a University of Illinois graduate: "When I first arrived here 10 years ago, it was with a great deal of excitement. I was honored to be here amongst you, attending the University of Illinois, a Big Ten University. I came full of dreams. But what I found... was a community permeated with Indian concoctions, a campus bar with a neon sign, HOME OF THE DRINKING ILLINI, a sorority MISS ILLINI SQUAW contest. Fraternity brothers wearing colored paper headdresses to go to the bar to drink, and act out negative stereotypes of Indians. My dream...turned to a nightmare."
With many other Native Americans sharing Teters's view, it is no wonder that a plethora of organizations, including the U.S. Commission on Civil Rights, have urged schools to retire these images on the grounds that they perpetuate racial hostility. Even if some folks enjoy these images, the simple truth is that they cause more harm than good to the very population they most affect.
We need not recite the harsh statistics surrounding Native Americans—vast disparities in health care, public safety and education, not to mention the high suicide and dropout rates among youth—to ask ourselves whether such mascots perpetuate harms that are already faced by a group that, quite simply, deserves better treatment at the hands of mainstream marketing.
The Second Washington Redskins Case Is Now on the Horizon
The first Washington Redskins case was filed by a superstar group of Native American activists and scholars, from different tribes, all of whom also served as plaintiffs. Among them was Vine Deloria, Jr., long considered the father of Native American law.
The members of today's second group of plaintiffs are similarly impressive. They are from a variety of tribes, geographies and walks of life, and they include Native American youth leaders such as Amanda Blackhorse, Marcus Briggs, and Courtney Tsotigh. Together, they argue that the term "Redskin" "was and is a pejorative, derogatory, denigrating, offensive, scandalous, contemptuous, disreputable, disparaging, and racist denigration for a Native American person."
They too have filed a petition for the cancellation of the trademark "Washington Redskins." But the difference is that they are all much younger than the earlier generation of plaintiffs, potentially minimizing or obviating the laches defense that ended the first Washington Redskins case.
It seems like poetic justice that the very people now leading the charge in the new filing are a group of Native American youth leaders. After all, they are the ones who perhaps feel the racial effects of stereotyping the most. Recently, I saw a photo taken during the 1992 protests at the World Series, and it gave me pause. It showed a young Native American teenager, hair pulled back, proudly standing before the camera with a handwritten sign that read in large black letters, "I am not a Mascot." Seventeen years later, he is still as right as he was then.
Sonia K. Katyal is a Professor of Law at Fordham Law School and the author of Property Outlaws (forthcoming from Yale University Press, 2010) with Eduardo M. Peñalver, a Professor of Law at Cornell Law School.