A new law banning the trademarking of the term “redskins” and other racist language against Native Americans may accomplish what a number of court cases have so far failed to do.
The bill, called the Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013, if passed, would strip the Washington football team of its trademarked name and put a stop to its exclusive profiteering from using the racist slur in its logo on sweatshirts, tee shirts, caps, coffee mugs and dozens of other products flooding the market. The bill would also prohibit any future trademarks that use the offensive term.
The bill was introduced in the House on Wednesday, March 21, by Rep. Eni Faleomavaega (D-American Samoa) and co-sponsored by Reps. Eleanor Holmes Norton (D-D.C.), Raul Grijalva (D-Ariz.), Karen Bass (D-Calif.), John Lewis (D-Georgia), Gwen Moore (D-Wisc.), Donna Christenson (D-Virgin Islands), Michael Honda (D-Calif.). and co-chairs of the Congressional Native American Caucus Tom Cole (R-Okla.) and Betty McCollum (D-Minn.),
Suzan Shown Harjo (Cheyenne & Hodulgee Muscogee), the president of The Morning Star Institute, celebrated the introduction of the bill. "It's wonderful to have such distinguished and courageous members of Congress stand up for us to oppose this indefensible racial epithet. I hope this helps to open the eyes of those who have not seen or who have refused to see the harm this does to our young people."
The historical context for the name “redskins” is Phips Proclamation – a 18th century racist and genocidal policy put into place by the Massachusetts colonial government (Maine was still part of the Massachusetts colony at the time). In 1755, Spencer Phips, the Lieutenant Governor of the Province of Massachusetts issued a call for the genocide of the Penobscot Nation whose people had resisted the colonization of their ancestral lands. The proclamation named the Penobscots “to be Enemies, Rebels, and Traitors to his Majesty King George the Second,” and required Massachusetts residents to “Embrace all opportunities of pursuing, captivating, killing and destroying all and every of the aforesaid Indians.” It set out a schedule of payments “for every Indian Enemy that they shall kill and produce the Scalp.” Scalps of male Penobscots above the age of twelve years received 50 pounds; female brought in 25 pounds; and children under 12 brought in 20 pounds. The bloody scalps were called “redskins.”
The Non-Disparagement of Native American Persons or Peoples in Trademark Registration Act of 2013 would amend the Trademark Act of 1946, also known as the Lanham Act after Rep. Frederick G. Lanham, a Texas Democrat, and cancel the federal registrations of trademarks that use the term “redskin” in reference to Native Americans and prevent future registrations. There are currently six trademark registrations and five pending applications for trademark registrations before the Trademark Office that would be affected by the bill, according to a briefing paper Faleomavaega’s office has distributed to legislators, seeking their support for the bill. The Non-Disparagement Act has the backing of the National Congress of American Indians, International Indian Treaty Council, the Wisconsin Indian Education Association, and Harjo’s Morning Star Institute.
The Lanham Act currently provides that trademarks that “may disparage” persons may not be registered and are subject to cancellation. Using that provision, Harjo was the lead plaintiff with six other American Indians who in 1992 filed the first of several lawsuits against the Washington team’s racist name. They petitioned the Trademark Trial and Appeals Board – part of the United States Patent and Trademark Officeto cancel six “redskins” trademarks. In 1999 – after seven years of administrative litigation – the TTAB ruled that the Trademark Office erred when it registered the trademarks because “redskin” is a term that may disparage American Indians. The TTAB directed that the registrations be canceled. The owners of the trademarks appealed to federal court and in 2009 – 10 years later – the Washington, D.C., appeals court ruled in the owners’ favor not on the merits of the case, but on the finding that Harjo and the other petitioners had waited too long after their 18th birthdays to petition the Trademark Office under the Lanham Act. In 2006, five younger American Indians filed a new petition with the TTAB to cancel the registrations. Their petition, called Blackhorse v. Pro-Football, Inc., is continuing.
Although the new bill would prohibit registering “redskins” as a trademark it would not stop business owners who are determined to use the racist term. They would be free under the First Amendment right of free speech to use the term “redskins” – unregistered – even though it is disparaging. That means the Washington football team could continue to use the racist slur, but it would no longer have the market cornered with an exclusive right to sell items using the name.
Faleomavaega and the bill’s other sponsors make a moral argument for supporting the bill in the briefing paper for legislators. The new bill “will not improve the economy, public health, the environment or national defense,” the briefing paper acknowledges. “But, it is one of the more profound steps that Congress can take. … This bill would address a continuing wrong, an error that the Trademark Office itself has admitted. It would be a small, but symbolically important action for the federal government to correct its past legally erroneous decision to register ‘redskins’ trademarks.”
The briefing paper also appeals for a sensitivity that society has acquired toward other minorities. “’[R]edskin’ is the most vile term to use to refer to a Native person. It is never used in a neutral way. The Trademark Office would surely not register a trademark that uses the ‘n-word’ in reference to African-Americans. And in 2008, the Trademark Office refused to register a trademark containing the term ‘heeb’ because that term may disparage Jews. If the “n-word” and “heeb” are not eligible for registration, American Indians cannot understand why the federal government endorses use of the most offensive term that can be used to refer to them,” the paper says.
And for those who continue to believe that the term “redskins” is not offensive, the briefing paper lists nearly a dozen dictionaries that define the term as disparaging and offensive, lists more than a dozen schools and universities that have dropped the name in recent years, and reminds legislators that in 2005 the National Collegiate Athletic Association, the governing body for college athletics, condemned the use of these disparaging references and banned the use of Native Indian names, logos and mascots by colleges and universities during its championship tournaments.
But Washington officials may still need some convincing. The Washington Post noted that the issue is still under debate. “There is no guarantee that the bill will even get a committee hearing in the House, or reach a vote. But it comes at a sensitive time,” The Post reported. “Earlier this month in Alexandria, a three-judge panel on the federal Trademark Trial and Appeal Board heard arguments over whether the term ‘redskins’ should be considered a slur and therefore not worthy of trademark protection.”
The TTAB’s indecisiveness on the issue is reason for Congress to act, the briefing paper says. “The burdens on the individual petitioners to get the TTAB to act, and then to defend the agency’s decision in federal court are too significant,” the paper says. Leaving this matter to the Blackhorse petitioners, which has already languished in court for six years, “is no solution, but an abdication of Congress’s responsibility to govern.”