The Name "Washington Redskins" and Efforts to Change It
by John Aquino on 11/05/13
I've been following the issue of whether the name of the Washington Redskins football team should be changed since 1999 as both a journalist and, briefly and tangetially, as the executive director of a tribal association.
I think the name should be changed, although I also feel that some of the arguments given for doing so do not make much sense.
In 1999, when I was a journalist for American Lawyer Media, I attended conferences in which an elderly Native American chief spoke with tears streaming down his creviced faces of attending Washington games with his grandchildren and being surrounded by drunken Washington fans with feathers in their hair and their faces painted red screaming in support of their team. "What do I tell my grandchildren?", I remember him asking. "That this is not about them?"
Embarrassment, humiliation, an insult to a person's heritage. All good reasons to be offended. But is it enough to cause someone to make changes to their property (intellectual) in which they have invested millions of dollars that could affect that someone's revenues. The name "Washington Redskins" is property, and it has been in use for over 80 years.
The efforts to change the name started with a legal process. In 1992, a petition was filed with the U.S. Patent and Trademark Office asking that the name "Washington Redskin" have its trademark status revoked under Section 14(3) of the Lanham Act, 15 U.S.C. Section 1064(3), which is the foundation for U.S. trademark law and which bars disparaging terms from trademark protection.
The strategy was that one reason the team has for not changing the name is its economic value. If the trademark protection were to be cancelled and anyone could use the name without cost, then the name would have no value and could be changed.
In 1999, the Trademark Trial and Appeal Board ordered in Harjo v. Pro-Football Inc. that the trademark be cancelled after it had determined that the term and five other related ones might disparage Native Americans.
The TTAB's ruling was overturned by the U.S. District Court for the Court of Appeals because it found the ruling was unsupported by substantaial evidence and barred by the doctrine of laches--which means the petitioners waited too long to file their petition--since the petition was filed many years after the team began using the name. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court's ruling on the laches grounds in Pro-Football Inc. v Harjo, D.C. Cir., No. 03-7162, 7/15/05.
This year a second petition was filed in the TTAB, and the board heard arguments again on March 7, 2013 as to whether the trademark for the name "Washington Redskins" should be cancelled. Whether laches will again become an issue is uncertain. The standard for whether a trademark is disparaging is the opinion of the referenced group, according to another decision by the TTAB when it refused to register for a trademark the mark "Heeb" in 1998, saying the term was dispagarging to the Jewish people.
The decision could come at any time. If the board again rules against the team, an appeal would be likely.
It could well be that trademark law is not the best arena to settle this issue. Recognizing that, Native Americans have been working with the federal and state governments. On March 20, 2013, two weeks after the second petition was filed, H.R. 1278 was introduced by Del. Eni F. H. Falcomavaega Jr. (D-Am. Sam.) to amend the Lanham Act so as to make explicit use of the term "redskin" as a trademark disparaging and not eligible for trademark protection. On Nov. 5, 2013, the D.C. City Council approved a referendum calling on the team to change its name. The council cannot force the team to do this, but it is the council of the city whose name the team bears.
Native Americans have also worked with the media, and sentiment in favor of changing the name has grown.
Last week (Oct. 24, 2013), Washington Post columnist Eugene Robinson wrote a piece on how the name should be changed. He indicated that he feels the name is racist and in support described how the team's first owner George Preston Marshall was a racist who wouldn't allow African-American players on his team. This argument makes no sense to me. If Marshall was a racist, why does that translate into the name "Washington Redskins" being a racist term. Without getting into the issue of whether there can be racism without intent, I'm picking up Robinson's suggestion that a racist owner's picking a name naturally results in that name being racist.
Why would someone give their team a name they thought to be demeaning to a group of people. That's like the Nazis, if they had had a football team, calling it the "Heebs," which, as the TTAB ruled, is disparaging to the Jewish people.
The name for the team before Marshall changed it was the "Braves," which also has Native American connections. The owners of professional sports teams named them after Native Americans because the names symbolize toughness and courage, not because they thought the names disparaged a group of people. The names "Cleveland Indians" and "Atlanta Braves" survive so far. Marshall's problem is that the name he picked--reportedly out of respect for a particular individual--specifically refers to the color of someone's skin.
What has really changed is our culture and sensitivity. When the name "Washington Redkins" began to be used in 1932 there was radio show called "Amos and Andy." The title characters were not very bright and did foolish things, but they were not that much different in kind than Laurel and Hardy or Abbott and Costello. Amos and Andy, however, were black men played by two white men--Freeman Gosden and Charles Cordell--using an exaggerated dialect. When an Amos and Andy film, Check and Double Check, was made in 1930, Gosden and Cordell blacked their faces. (When an Amos and Andy tv show was made in 1947, black actors were used.).
In 1932, the oriental detective Charlie Chan was played in a series of films by the Swedish-born actor Warner Orland. In the same fashion, the oriental detective Mr. Moto was played by Peter Lorre (born in Hungary), Mr. Wong by Boris Karloff (British) and when Orland died, Charlie Chan was played by Sidney Toler (born in Missouri of Scottish descent). Homosexuals in movies were characterized as effeminant men, and African-Anericans through actors such as Stepin Fetchit as slow and lazy. I remember my father both enjoying and being offended by an actor and singer named Danny Thomas, who had a popular television show on CBS in the 1950s and 1960s. Thomas was born in Toledo, Ohio of Lebanese descent but he used to do skits playing Italian-Americans who spoke in broken English. In one skit, he was calling CBS from a phone booth complaining that its show "The Untouchables" portrayed Italians and Italian-Americans as gangsters. He would say, "I'm a hot in the boots. I'm a hot in the boots." When the person he was calling didn't understand, Thomas shouted, "The telephone boots, she's a hot!" The skit ended with Thomas saying that Italians were good, decent people, and that if the head of CBS didn't change the show Thomas would put a bomb in his car.
When I was in grade school thirty years after Marshall changed his team's name to "Washington Redskins," we read a poem called "The Noble Redskin," which I dog-leafed because we were Redskin fans.
But by 1981, when the British actor Peter Ustinov played Charlie Chan in Charlie Chan and the Curse of the Dragon, Chinese-Americans protested the film with its white actor playing a Chinese with makeup on his eyeslids and using "Chop Suey pidgin English." Ustinov was following the tradition of Orland, Toler, Lorre, and Karloff. He or they were not being mean-spirited. But the times had changed.
There are anti-defamation organizations and, while people surely do it still, making fun people based on their sexual orientation or the way they talk or the color of their skin, such humor is not mainstream like it was with Stepin Fetchit.. When Rogers and Hammerstein wrote Flower Drum Song in 1958 about Chinese and Chinese-Americans in San Francisco, one of the leads, Larry Blyden, was a white man playing a Chinese-American character. I have no doubt they wrote the show with affection for its characters. But the show was not revived much because it was later thought to be full of racial stsreotypes, and when it was finally revived in 2002, Chinese-American playwright David Henry Hwang revised the book and it opened with an Asian-American cast.
What was not intended to offend can offend. What was once accepted is no longer acceptable. The term "Redskin" is now viewed as disparaging. White actors no longer wear blackface, Chinese are not played by white actors in movies, and a team name that calls attention to a person's skin and not his or her character is viewed as derogatory. That is why the name should be changed.
Copyright 2013 by John T. Aquino
