19 June 2014

Are the days of the 'Redskins' nickname numbered?

A big development yesterday in the Washington Redskins nickname controversy came with the Trademark Trial and Appeal Board of the United States Patent and Trademark Office cancelling the team's trademark registration. The board's ruling, which you can read in full here, found that the registrations made between 1967, when the trademark was first registered, until 1990 "must be cancelled because they were disparaging to Native Americans at the respective times they were registered," which violations the Lanham Act of 1946 which "prohibits registration of marks that may disparage persons or bring them into contempt or disrepute."

This suit was filed in 2006 as Blackhorse v. Pro Football Inc. by five Native Americans and the case was heard in March of last year and this is the second ruling by the USPTO on the matter in the last 15 years. In 1999, they cancelled the team's trademarks but the district court ruling in Harjo v. Pro Football Inc. in 2003 overturned that decision, largely on a technicality that the plaintiffs, led by activist Suzan Shown Harjo, should have filed their complaint sooner to 1967 due to their age. This case is different in that regard as Harjo organized it with younger plaintiffs, including Navajo activist Amanda Blackhorse. The franchise has vowed to appeal the case.

While this is a key development in this case, it is also important to note that this decision may be little more than a symbolic one and here is why.

First and foremost, the ruling does not force the team to change their nickname. In fact, if the team were to lose on appeal, they could continue to use the name. Where the trademark protection comes into play is that without it, anybody can use the team's likeness in terms of its name and team logos to sell merchandise without the team and league able to do anything to prevent it. The team can still attempt to enforce exlusivity on the name and logo but it is made much tougher.

And, as the excellent Michael McCann notes over at SI.com, federal trademark protection is not the only form of trademark protection as the team, which is based in the commonwealth of Virginia, may have legal protection under state law and what is known as "common law" rights. Even if the team were to lose the appeal, it is uncertain whether the economic loss will be significant enough for the team to be financially forced to change the name. ESPN quoted a former head of NFL retail operations, Frank Vuono, in saying it is "not a death blow, but it's a good jab."

Ultimately, this is going to be a battle that will be continue to be hashed out in the courts of public opinion, where it has largely been discussed since the fall when the Oneida Indian Nation of New York announced the "Change the Mascot" campaign in September. Largely since then, the issue has not gone away. Just last week, the Yoch Dehe Wintun Nation, a Native American tribe in California, paid for an advertisement that criticized the usage of the 'Redskin' moniker to run during game 3 of the 2014 NBA Finals last Tuesday.

And the issue has entered the political arena as well. In October, President Obama said if he were the owner of the tea, he would "think about changing it." 50 U.S. Senators, all Democrats, signed a letter sent to commissioner Roger Goodell urging the league to change the name. That follows a letter send to Goodell in February by Senator Maria Cantwell (D-WA) and Congressman Tom Cole (R-OK 4) that said that it was inappropriate for a tax-exempt organization like the NFL to "profit from the continued degradation of tribes and Indian people." Cole is a member of the Chickasaw Nation and is one of two members of Congress that is Native American and has been outspoken in his support for changing the name, saying last January:
Come on. 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.
But even as owner Dan Snyder has been adamant that they will never change the name, in caps no less, and while it may not come for a long time, I do believe that eventually the team will be known as something other than the Washington Redskins. And quite frankly, the sooner it happens, the better.

In theory, this should not be a big deal to change the name. There is no question that the term 'Redskin' is a pejorative and a slur against Native American peoples. No other pejorative would be acceptable to use as a team's name and there is no chance that if a team was founded tomorrow, it would be allow to be called the 'Redskins.' And that if nobody would call a Native American a 'redskin' to their face, how could you have a sports franchise called that?

But alas, it is not that easy.

We hear that this is a case of "white guilt," that this is the case of white, liberal journalists driving this controversy. Never mind the fact that the litigants in both this and the 1992 suits were all Native Americans, that the loudest voices in support of changing the name are Native American groups like the aforementioned Oneida and Yoch Dehe Wintun Nations, as well as the National Congress of American Indians. Not to mention that the outrage is not exclusive to liberals or Democrats with the aforementioned Rep. Cole, again, a Native American, and 2008 Republican Presidential nominee John McCain also weighing in. Or that the writer of this:
If you were detailing the racial composition of Congress, you wouldn't say: "Well, to start with, there are 44 Negroes." If you'd been asleep for 50 years, you might. But upon being informed how the word had changed in nuance, you would stop using it and choose another.
And here's the key point: You would stop not because of the language police. Not because you might incur a Bob Costas harangue. Not because the president would wag a finger. But simply because the word was tainted, frieghted with negative connotations with which you would not want to be associated.
And this:
Similarly, regarding the further racial breakdown of Congress, you wouldn't say: 'And by my count, there are two redskins.' It's inconceivable, because no matter how the word was used 80 years ago, it carries invidious connotations today.
And this:
I wouldn't want to use a word that defines a people - living or dead, offended or not - in a most demeaning way. It's a question not of who or how many had their feelings hurt, but of whether you want to associate yourself with a word that...carries inherently derogatory connotations. 
happens to only be one of the most popular and influential conservative columnists in America.

We hear that the vast majority of Native Americans support the nickname by citing a question from the National Annenberg Election Survey in 2004. Never mind the fact that there are many flaws with that survey that ultimately render it all but irrelevant. Or the fact that some surveys have found a substantial majority of Native Americans that find the name offensive.

We hear that this was a non-issue until now. Never mind that there is evidence that Native American groups have had issues with the nickname as far back as 1972 as well as the aforementioned suit that arose in the early 1990's. Also, let's not ignore the fact that Native Americans have never had the kind of megaphone via the media, or one notable activist, that was able to create much of an outcry until now on the issue.

We hear that the term 'redskin' is "used historically...as a term of respect to people." Never mind that the plaintiffs in the lawsuit submitted clips from ten different films as evidence that the term is not used respectfully.

Similarly, we hear that the Redskin nickname is "a badge of honor" and that the team changed its name in part to honor the team's head coach at the time, William "Lone Star" Dietz. Never mind that the plaintiffs submitted significant evidence to prove that it is anything but honorific. And never mind that the team's then-owner, George Preston Marshall, admitted in a July 6, 1933 edition of the Hartford Courant that that was not the reason why he chose the new nickname. Not to mention that Marshall was an unabashed racist and that it is questionable whether Dietz was actually a Native American at all (read here for more on that).

I decided to not use the 'Redskins' moniker on this blog early in the NFL season. It was not used on my predictions, any of the TV schedules and the like. And while I wondered if there would be any sort of backlash as seen on the comments section, the only comment I got on it was on my post reaction to the team's hiring of Jay Gruden as their new head coach. That comment was hilarious because the guy, who surprisingly was not anonymous as most of them are, said he thought I would edit the word of his comment (something I can't do) if I post it (I stopped approving comments last year), but I wouldn't have the "balls" to do it because I "don't take criticism well" (not sure how that makes sense) and that I "won't last long" if I can't take criticism (I never responded to that comment and have let it stand as is). I was also accused of being "sanctimonious" over the nickname when in fact I made no comment on the matter.

I understand the point that the franchise has a rich history and tradition, and it's absolutely true. But changing the nick will change none of that; their history will not be whitewashed if they are called something else. It's same team, same history and everything, just with a different nickname. And I highly doubt that fans of the team will no longer support the team should they change the name (if anything, the biggest reason for that that should be Snyder's incompetent ownership tenure).

But one of these days, the Washington Redskins will be the Washington (fill in the blank)s. It probably will not happen anytime soon, but I truly believe it will one day.


  1. Funny the congressman from Oklahoma glosses over the fact that the literal Native American translation of his state's name is "Red People." Sounds like a disparaging term to me referring to the person instead of skin color, yet no outrage over that. If you're going to change the name, then it's time to ban the tomahawk chops and chants that go on at Atlanta Braves and Florida State games. My brother-in-law, who has Native American ancestry, finds that stuff much more offensive than the team name of Redskins.

    And just because the biggest (read have the most money) Native American "groups" have voiced their objection and claim the name is disparaging/racist, etc. why is it that the majority of Native Americans when polled still don't feel that way and speak of the phrase as a badge of honor. How is their voice marginalized because of the "groups" who have money to spend on lawsuits and ads so their point of view must be right and the majority's is wrong? And what about the many schools on reservations that use the nickname? I guess it's fine for them to use it because they're just disparaging themselves?

    In the end, this is such a tired issue as it's turned into a cause that's been taken up by predominantly white men (regardless of political party), who have found a cause they believe they can actually be successful with in this age of 24/7 social media since we can't get any real change on real issues. And they feel they are speaking up for the majority of Native Americans, which they're not. They're speaking for the groups with the most money and influence.

    And for the record, yes I am a fan of the team, so you can deem my opinion to be biased. That's fine. My mentioned brother-in-law is not a fan of the team, yet feels the same way as I do.

    1. I think there's a difference between the name of the state, the likes of which came from the suggestion of a Choctaw man so that the translation of 'Oklahoma Territory' would be 'Indian Territory,' than a nickname of a team named by a racist in George Preston Marshall.

      I'm not sure why you put groups in quotes, because it's not like these are legitimate tribes with a legitimate gripe. And nobody's voices are being marginalized and while yes, polling still suggests a majority of Native Americans are fine with the name, that still means 1 of 3 Native Americans are offended by the name, a significant portion.

      And I would have no problem with getting rid of the tomahawk chops by Braves and FSU fans, although FSU is an interesting case because the Seminole tribe supports their use of the Seminole moniker. While we're at it, Chief Wahoo has to go and I support how the Indians have worked to minimize their usage of the logo.

      Again, here's the thing. Nobody would call a Native American a 'redskin' to his or her face, and there is no way a team founded tomorrow would be able to use that name. And there's no way that a pejorative against any other race or ethnicity would okay either, so why is it okay in this example?

    2. And the current Redskins logo was designed by a Native American, what's your point? You once again do some Google research to pick up one opinion/explanation of how the state came to be named. I'm not impressed. You're essentially making my point in that a name can be interpreted many ways, just as Native Americans have done so with a lot of them claiming Redskins is not disparaging/racist. And yeah, the original owner was indeed one, you'll get no argument from me there, but try placing that moniker on the current owner, even though I can't stand him.

      There is still a majority of Natives who do not find the name offensive. Hell, they use it on their own reservation high schools. But, in the PC culture, I guess it's ok to disparage yourselves. Until it's proven that a true N.A. majority are against this, and everyone is willing to ditch ANYTHING (and that means the Cleveland Indians don't "minimize" the use of Chief Wahoo, lead by example and eliminate it period, including the indian drum beat) that can be deceived as derogatory against Native Americans, the Redskins name lives on, despite your discretionary edits on this blog.

    3. Hey, if you want to ignore facts that's your call, not mine. If you can find me a different etymology of the name of Oklahoma, one that suits your agenda, I'm more than happy. I'm not cherry picking one definition that over another, I'm using the definition. And I guess it would be okay if you did some Google research, but not me of course.

      The controversy is over the nickname, not the logo so whoever came up with the logo is irrelevant. If the team changed their logo but not the nickname, the issue will not be settled. In some aspects, it's the opposite of the Cleveland Indians issue (although there certainly are other issues there such as the drumbeat you noted).

      And I think you are conflating the question asked in the poll you cite between is the use of the nickname offensive or is the word 'redskin' is offensive altogether. It's not the same question. And don't put words in my mouth suggesting that I may think Snyder is a racist, which I don't. I don't think he refuses to change the name because he hates Native Americans and I don't think fans who don't want to see the name changed are racists either.

      A reservation high school using the name is not the same as an NFL team using it. It would be similar if a Native American owned the team or even if the team went to gain approval of Native American tribes when they sought the trademark, which there appears to be no evidence supporting that.

      I do appreciate that you are admitting that the name offends a significant portion of the Native American population, albeit one that does not appear to be a majority, rather closer to 1 in 3. I guess that one's person's opinion should not count the same as the other 2. And how do we know that if the number eventually shows a majority of Native Americans wished the name to be changed, that would be enough. Certainly Snyder doesn't think so and then the argument would be "well not every Native American is offended by the name, let's not ignore the opinions of the minority." The goalposts simply will be moved again, no pun intended.

      And as a I clearly state in the piece, the name will go on as I say that the name will, in all likelihood, not be changed anytime soon. And I understand that the franchise has a great history and tradition. However, changing the nickname will change none of that.