We posted about this case way back when, here.
M. Alexander Pearl has published “Redskins: The Property Right to Racism” in the Cardozo Law Review.
Everyone has an opinion, from President Obama to Matthew McConaughey, about the Washington football team name. This Article comprehensively analyzes the legal and social issues surrounding the mascot controversy. I focus my inquiry on the interaction of trademark law and Indian law. I offer three primary contributions in this Article. First, the current mainstream conception of harm caused by the team name is subjective, and I argue that the harm caused by the team name and logo is objective, testable, and demonstrable. Psychological research shows that these images harm Native people. Second, the remedies offered by the Lanham Act are wholly inadequate. Under section 2(a) of the Act, “disparaging” trademarks are subject to cancellation of federal registration benefits. This does little to economically affect the value of the trademark, thereby having no bearing on changing the name. Finally, I suggest a legislative solution that applies real economic pressure to change the team name. Utilizing the tool of express federal preemption, I suggest an approach that directly undermines the economic value of the trademark by precluding trademark infringement suits against unlicensed users of the trademark. This creates real pressure to change the name. Ultimately, this issue directly confronts the doctrinal inquiry into the extent of property rights in intellectual property forms.
His New York Times Op Ed piece is here.
Mr. Snyder, owner of the infamous Washington team, has decided that instead of changing the racial epithet used in the team’s name, he will start a foundation to address social ills within Native American communities. Taken from his letter Letter-from-Dan-Snyder-032414:
The mission of the Original Americans Foundation is to provide meaningful and measurable resources that provide genuine opportunities for Tribal communities. With open arms and determined minds, we will work as partners to begin to tackle the troubling realities facing so many tribes across our country. Our efforts will address the urgent challenges plaguing Indian country based on what Tribal leaders tell us they need most. We may have created this new organization, but the direction of the Foundation is truly theirs.
He claims that this decision was based on information he gathered while touring reservations.
Several months ago I wrote you about my personal reflections on our team name and on our shared Washington Redskins heritage. I wrote then – and believe even more firmly now – that our team name captures the best of who we are and who we can be, by staying true to our history and honoring the deep and enduring values our name represents. In that letter, I committed myself to listening and learning from all voices with a perspective about our Washington Redskins name. I’ve been encouraged by the thousands of fans across the country who support keeping the Redskins tradition alive. Most – by overwhelming majorities – find our name to be rooted in pride for our shared heritage and values. . . .What would my resolve to honoring our legacy mean if I myself—as the owner of and a passionate believer in the Washington Redskins—didn’t stay true to my word? I wanted and needed to hear firsthand what Native Americans truly thought of our name, our logo, and whether we were, in fact, upholding the principle of respect in regard to the Native American community. So over the past four months, my staff and I travelled to 26 Tribal reservations across twenty states to listen and learn first-hand about the views, attitudes, and experiences of the Tribes. We were invited into their homes, their Tribal Councils and their communities to learn more about the extraordinary daily challenges in their lives.
And so, in an admittedly small gesture, Mother Jones is also tweaking our house style guide, joining Slate and a group of other publications, from The New Republic to Washington City Paper. From here on out, we will refer to the team online and in print as “Washington” or “Washington’s pro football team” or, if we get sassy, “the Washington [Redacted].”
It is time that the National Football League and NFL Commissioner Roger Goodell face the reality that the continued use of the word “redskin” is unacceptable. It is a racist, derogatory term and patently offensive to Native Americans. The Native American community has spent millions of dollars over the last two decades trying earnestly to fight the racism that is perpetuated by this slur. The fact that the NFL and Commissioner Goodell continue to deny this is a shameful testament of the mistreatment of Native Americans for so many years. It is quite obvious that once the American public understands why the word “redskins” is so offensive, they will know that the word should never be used again.
The origin of the term “Redskins” is commonly attributed to the historical practice of trading Native American Indian scalps and body parts as bounties and trophies. For example, in 1749, the British bounty on the Mi’kmaq Nation of what is now Maine and Nova Scotia, was a straightforward “ten Guineas for every Indian Micmac taken or killed, to be paid upon producing such Savage taken or his scalp.”
Just as devastating was the Phips Proclamation, issued in 1755 by Spencer Phips, Lieutenant Governor and Commander in Chief of the Massachusetts Bay Province, who called for the wholesale extermination of the Penobscot Indian Nation.
By vote of the General Court of the Province, settlers were paid out of the public treasury for killing and scalping the Penobscot people. The bounty for a male Penobscot Indian above the age of 12 was 50 pounds, and his scalp was worth 40 pounds. The bounty for a female Penobscot Indian of any age and for males under the age of 12 was 25 pounds, while their scalps were worth 20 pounds. These scalps were called “redskins.” The question is quite simple: suppose that a “redskin” scalp that was brought for payment was your mother, your wife, your daughter, your father, your husband, or your son? The fact is Native Americans are human beings, not animals.
The current Chairman and Chief of the Penobscot Nation, Chief Kirk Francis, recently declared in a joint statement that “redskins” is “not just a racial slur or a derogatory term,” but a painful “reminder of one of the most gruesome acts of . . . ethnic cleansing ever committed against the Penobscot people.” The hunting and killing of Penobscot Indians, as stated by Chief Francis, was “a most despicable and disgraceful act of genocide.”
The NFL – Modern-Day Institutionalized Racism
Recently, I and nine Members of Congress explained the violent history and disparaging nature of the term “redskins” in a letter to Mr. Dan Snyder, owner of the Washington football franchise. Similar letters were sent to Mr. Frederick Smith, President and CEO of FedEx (a key sponsor for the franchise), and to Mr. Roger Goodell, Commissioner of the National Football League.
As of today, Mr. Snyder has yet to respond. Mr. Smith ignored our letter as well, opting instead to have a staff member cite contractual obligations as FedEx’s reason for its silence on the subject.
Mr. Goodell, however, in a dismissive manner, declared that the team’s name “is a unifying force that stands for strength, courage, pride and respect.” In other words, the NFL is telling everyone—Native Americans included—that they cannot be offended because the NFL means no offense. Essentially, Mr. Goodell attempts to wash away the stain from a history of persecution against Native American peoples by spreading twisted and false information concerning the use of the word “redskins” by one of the NFL’s richest franchises.
Mr. Goodell’s response is indicative of the Washington football franchise’s own racist and bigoted beginnings. The team’s founder, George Preston Marshall, is identified by historians as the driving force behind the effort to prevent African Americans from playing in the NFL. And once African Americans were allowed to play in 1946, Marshall was the last club owner to field an African American player – a move he reluctantly made some 14 years later in 1962. It should be noted that Secretary of the Interior Stewart Udall and U.S. Attorney General Robert F. Kennedy presented Marshall with an ultimatum – unless Marshall signed an African American player, the government would revoke his franchise’s 30-year lease on the use of the D.C. Stadium.
Congressman Tom Cole, the Representative from Oklahoma, Co-Chair of the Congressional Native American Caucus, and a member of the Chikasaw Nation, states: “This is the 21st century. This is the capital of political correctness on the planet. It is very, very, very offensive. This isn’t like warriors or chiefs. It’s not a term of respect, and it’s needlessly offensive to a large part of our population. They just don’t happen to live around Washington, D.C.”
Congresswoman Betty McCollum, the Representative from Minnesota and Co-Chair of the Congressional Native American Caucus, states that Mr. Goodell’s letter “is another attempt to justify a racial slur on behalf of [Mr.] Dan Snyder,” owner of the Washington franchise, “and other NFL owners who appear to be only concerned with earning ever larger profits, even if it means exploiting a racist stereotype of Native Americans. For the head of a multi-billion dollar sports league to embrace the twisted logic that ‘[r]edskin’ actually ‘stands for strength, courage, pride, and respect’ is a statement of absurdity.”
Congresswoman Eleanor Holmes Norton, the Representative from the District of Columbia, states that Mr. Snyder “is a man who has shown sensibilities based on his own ethnic identity, [yet] who refuses to recognize the sensibilities of American Indians.”
Recently, in an interview with USA Today Sports, Mr. Snyder defiantly stated, “We’ll never change the name. It’s that simple. NEVER – you can use caps.” Mr. Snyder’s statement is totally inconsistent with the NFL’s diversity policy, which states:
Diversity is critically important to the NFL. It is a cultural and organizational imperative about dignity, respect, inclusion and opportunity . . . The overall objective of the [NFL’s] diversity effort is to create a culturally progressive and socially reflective organization that represents, supports and celebrates diversity at all levels.
It is critically important that the NFL promote its Commitment to Diversity, and uphold its moral responsibility to disavow the usage of racial slurs. Just as important is the moral responsibility of the NFL’s 31 other football club owners to collectively have the necessary courage to stand up and speak out against the use of this derogatory term. Mr. Snyder, more than anyone else in the NFL, should display greater sensitivity and appreciation for a people who have been maligned and mistreated for hundreds of years.
Ms. Suzan Harjo, President of the Morning Star Institute – a national Native American rights organization – and a member of the Cheyenne and Hodulgee Muscogee tribes, summed it up best when she stated: “[Redskins] is the worst thing in the English language you can be called if you are a native person.” This is not just a statement, but a direct invitation for Mr. Snyder and the NFL to do the right thing. I challenge Mr. Snyder to be reasonable, and to realize the harmful legacy that his franchise’s name perpetuates.
H.R. 1278 – A Congressional Effort to Correct the Past
In an attempt to correct the long-standing usage of the term “redskins,” the bill H.R. 1278 entitled, “The Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013” was introduced. This bill would cancel the federal registrations of trademarks using the word “redskin” in reference to Native Americans. The Trademark Act of 1946 – more commonly known as the Lanham Act – requires that the U.S. Patent and Trademark Office (PTO) not register any trademark that “[c]onsists of or comprises . . . matter which may disparage . . . persons, living or dead…or bring them into contempt, or disrepute.” 15 U.S.C. §1502(a).
Native American tribes have a treaty, trust and special relationship with the United States. Because of the duty of care owed to the Native American people by the federal government, it is incumbent upon the federal government to ensure that the Lanham Act is strictly enforced in order to safeguard Indian tribes and citizens from racially disparaging federal trademarks.
Accordingly, the Patent and Trademark Office has rejected applications submitted by the Washington franchise for trademarks which proposed to use the term “redskins” – three times in 1996 and once in 2002. The PTO denied the applications on grounds that “redskins” is a racialslur that disparages Native Americans.
In 1992, seven prominent Native American leaders petitioned the Trademark Trial and Appeal Board (TTAB) to cancel the federal registrations for six trademarks using “redskins.” The TTAB in 1999 ruled that the term “redskins” may, in fact, disparage American Indians, and cancelled the registrations. On appeal, a federal court reversed the TTAB’s decision, holding that the petitioners waited too long after coming of age to file their petition. A new group of young Native Americans petitioned the TTAB to cancel the registrations of the offending trademarks in 2006. The TTAB held a hearing on March 7, 2013. A final decision is pending.
H.R. 1278 is supported by a number of major Native American organizations, including the National Congress of American Indians (NCAI) – the oldest, largest and most representative American Indian and Alaska Native organization serving tribal governments and communities. Mr. Jefferson Keel, a member of the Chikasaw Nation and President of NCAI, stated that our efforts as Members of Congress will hopefully accomplish “what Native American people, nations, and organizations have tried to do in the courts for almost twenty years – end the racist epithet that has served as the [name] of the Washington’s pro football franchise for far too long.”
The Native American Rights Fund (NARF) – the oldest and largest nonprofit law firm dedicated to asserting and defending the rights of Indian tribes, organizations, and individuals nationwide – also supports the call to change the Washington franchise’s racist name. NARF recently issued a statement describing our efforts as “a clear signal that some [M]embers of Congress do not take anti-Native stereotyping and discrimination lightly. These Representatives now join Native American nations, organizations and people who have lost patience with the intransigence of the Washington pro football franchise in holding on to the indefensible – a racial epithet masquerading as a team name.”
Despite the Native American community’s best efforts before administrative agencies and the courts, the term “redskins” remains a federally registered trademark. It has been well over twenty years and this matter is still before the courts. This injustice is the result of negligence and a cavalier attitude demonstrated by an administrative agency charged with the responsibility of not allowing racist or derogatory terms to be registered as trademarks. Since the federal government made the mistake in registering the disparaging trademark, it is now up to Congress to correct it.