Suzan Shown Harjo. Photo: U.S. National Archives

Opinion | Sports

Suzan Shown Harjo: Offensive mascots belong in museums and history books

Friday, December 15, 2017

Note: The following statement by Presidential Medal of Freedom winner Suzan Shown Harjo (Cheyenne and Hodulgee Muscogee), the president of the Morning Star Institute, was read at a Rising Hearts Coalition press conference in Washington, D.C., on December 14, 2017. The press conference took place at at the George Preston Marshall Monument in front of Robert F. Kennedy Memorial Stadium.

Twenty-five years ago, on September 10, 1992, I stood at this very location with two co-plaintiffs - Author/Theologian Vine Deloria, Jr., Esq. (Standing Rock Sioux), and Educator Norbert S. Hill, Jr. (Oneida) – and our attorney, Stephen R. Baird, Esq., whose theory of law was the basis for our federal legal action.

We had just held a press conference to announce the filing of our landmark case, Harjo et al v. Pro Football, Inc. In our petition, we asked the U.S. Patent & Trademark Office to cancel the lucrative federal trademark licenses of the dreadful name of the Washington NFL franchise. No existing federal trademarks had ever been cancelled.

Four other co-petitioners held simultaneous press conferences in El Paso, Minneapolis and Santa Fe, with other Native leaders, artists and activists: Ysleta del Sur Pueblo Governor Raymond D. Apodaca, Educator Dr. Manley A. Begay, Jr. (Navajo), Activist/Educator William A. Means, Jr. (Oglala Lakota), and Artist/Educator Mateo Romero (Cochiti Pueblo).

Seven years later, on April 2, 1999, the three-judge panel of the PTO Trademark Trial & Appeal Board agreed with us. Opining that the trademarks should not have been granted in the first place, they ruled unanimously in a 145-page decision to cancel the trademarks.

Ours was a pocketbook-incentive case that would not force anyone to do anything. We were counting on the owners’ avarice to abandon the name if their federal trademarks were cancelled, after all appeals, and if they no longer could make money exclusively with federal protection against others. The franchise owners insisted that they didn’t need federal trademarks because they had state registrations.

However, they alternatively dragged their feet and fought us tooth and nail in two cases over the next quarter-century, ultimately claiming their commercial free speech was being threatened, as if they were Native Peoples who were expressing a recontextualization of a slur. It was enough to make a giraffe laugh.

Join us this Sunday, at FedEx Field, with Indigenous Relatives and allies. Peaceful, non-violent Action. Calling for Washington Football to ChangeTheName! #NoHonorInRacism #NotYourMascot https://t.co/mlv62Y1mRS pic.twitter.com/wTtIwkLwVo
— Rising Hearts (@_RisingHearts) December 14, 2017

I’m a free-speech advocate from work in Native rights, the arts and journalism. In the mid-1970s as our family was moving from New York City to D.C., the FCC was hauling into court the Pacifica Network’s free-speech flagship, WBAI-FM Radio Station, which I served as Drama & Literature Director and co-produced “Seeing Red” with my husband, Frank Ray Harjo (Wotco Muscogee).

What was WBAI’s crime? Broadcasting comedian George Carlin’s “seven dirty words” routine. The case went to the Supreme Court, which ruled against Pacifica and free speech, but I’m proud to say that WBAI continued to air that cut and other similar recordings by Carlin and his comedic and free speech inspiration, Lenny Bruce.

In developing our complaint and pursuing our case against the Washington franchise, we seven plaintiffs and our lawyers were not impeding anyone’s free speech – we were speaking up against name-calling, bullying and hateful speech. We were saying that the team owners could call their ball club any racist name they wanted – as they have done and continue to do – but the federal government should not sanction such racism or reward it with the exclusive privilege of making money off its racist name and imagery.

The first of the franchise’s owners we sued was Jack Kent Cooke, who claimed what his owner/son, John Kent Cooke, and current majority owner, Daniel Snyder, echoed: there’s no chance the name will be changed - it’s a tradition, it’s not offensive and it would cost too much money.

Taking their last point first, changing the team’s name and imagery would yield a fortune from the sale of memorabilia alone, let alone from new paraphernalia. Or, as Wizards owner Abe Pollin later told Snyder about changing his team’s name from the Bullets in 1996: “I did not lose money.” (Pollin urged Snyder to change his football club’s name in 2003, after Snyder’s father died and he considered Pollin his surrogate father. Pollin said at the time that Snyder was “adamant” that he would not change the name.)

To the owners’ point about tradition: many forms of genocide and racism against Native Peoples and others – such as skinning and lynching and the N-word and the R-word – became traditional, but that did not make them right. It made them traditions of racism.

Regarding their claim that the name is not offensive: it’s up to the offended, not the offender, to say what is offensive and what offends. It is grossly arrogant for offending whitemen to tell us what hurts and what does not, but that was their case: we’re not offending, we’re honoring you.

Far from an honor, the team’s name is the worst thing we are called in the English language. It refers to the practice of skinning Native people, a tradition started in the centuries when companies, colonies, territories and states issued bounty proclamations for dead Indians. Some specified a Native Nation, while others proclaimed hunting seasons on generic Indians, Savages or R*dsk*ns.

Still other bounty proclamations set payments on a sliding scale for men, women and children of stated ages or stage of life. In order to collect the blood money, bounty-hunters had to produce “proof of Indian kill” – either the whole bodies or skins or “scalps” (a genteel way of saying genitalia), which were the only ways to prove the gender or age of a dead Native person.

Sports cartooning and mascoting are especially vile to Native parents, grandparents and extended families because of the harm these practices do to the self-esteem of Native youth. Low self-esteem factors prominently in suicides, and our teen suicide rate has been at or near the highest level in the United States for more than a century, so this is a matter of life and death for most Native Peoples. It also is the main reason so many of us devote time and energy to ridding sports of these dehumanizing, objectifying and belittling practices and behaviors.

Thirty years before we filed suit, the federal government had forced the Washington franchise to allow African American players in the football club. We stand on federal land, which is original tribal land. Upon becoming President John F. Kennedy’s Interior Secretary in 1961, Stuart Udall told George Preston Marshall that the franchise would not get a new federal lease for the stadium unless he integrated the team. Marshall - a notorious bigot and white supremacist, who changed the name of the Boston team he bought from Red Sox to the current epithet - permitted integration of African American players in 1962. It was the last team in the league to do so.

Marshall renamed his team in 1933, at a time when the federal “Civilization Regulations” still criminalized everything that made Native Peoples Native – praying, dancing, singing, give-aways, medicine ways and ceremonies - characterizing them as pagan and heathenish. They banned roaming off the reservations, which meant no traveling to sacred places for site-specific ceremonies or visiting with relatives and friends who lived elsewhere.

Civilization rules were in place for over a half-century, from 1880 to 1936, and their ill effects were felt throughout the 1900s and into this century. We didn’t get a religious freedom policy until 1978, or laws to recover our relatives and cultural items from museums and other repositories until 1989 and 1990. We still are the only segment of society that cannot use the First Amendment to protect our sacred places.

“Offenders” and “Hostiles” were imprisoned or starved under Civilization rules. They outlawed interfering with the progressive education of the children, meaning trying to keep daughters and sons from being taken away to boarding schools of short hair, hard shoes, corporal punishment, sexual assault, English/Christian-only curriculum and lye soap in the mouth for a word of a heritage language.

Marshall introduced the R-word into that toxic melting pot, as Native religions were driven underground and countless Native tribal and traditional religious leaders were killed in the name of civilization.

The franchise created a mythology that the team was named to honor its “beloved” second coach, William “Lone Star” Dietz, “a full-blooded Sioux.” In fact, Dietz had two German parents and was not Sioux or any other kind of Native person. And, as he lasted as the coach for only eleven months, just how beloved could he have been?

The federal district court judge in our case bought the team propaganda hook, line and sinker, and published these “facts” as if they were law at the opening of her 2003 decision overturning the 1999 ruling of the three federal trademark experts, the TTAB judges.

Actually, Dietz was a ringer on Pop Warner’s Carlisle Indian School football team, after stealing the identity of a former Carlisle student, James One Star, who really was Sioux. One Star disappeared and Dietz wrote to his sister for years as her brother; she later testified in court that Dietz was not her brother. The sordid past came out in legal proceedings against Dietz, who had avoided being drafted into military service because he was “Indian.” An extensive FBI report documented his German origins and his attempts to use his false “Sioux” identity to gain Sioux land and monies.

In 2012, Dietz was inducted posthumously into the College Football Hall of Fame, as a coach. Snyder continues to wrongly claim Dietz is “Indian.”

Dietz was the first in a long line of pseudo-Indians the franchise has tried to palm off as Natives who are honored by the despicable name. In 25 years of continuous litigation, the team’s owners never brought a single Native person into court, where they could be examined for authenticity and truthfulness.

Their lawyers tried to introduce a few “chiefs’ support letters” during my deposition, but I was able to debunk them and note for the record that one carried the name of a man who had copped a plea for embezzlement of tribal funds and another was a convicted sexual predator.

The trial judge, whose husband’s law firm represented the franchise on a p.r. matter, uniquely interpreted the defense of laches as the length of time between each Native petitioner becoming an adult and the filing of our lawsuit. When the appeals court asked in 2005 if laches applied to our youngest co-plaintiff - who was in diapers in 1967, when the owners got the franchise’s first trademark registration - it took her three years to answer, Yes, Mateo Romero, too.

In their 2005 request, the appellate judges also mused about whether laches would bar young Native people who are offended by the name. It seemed that the franchise would escape through the loophole of laches, and I began recruiting young Native people, ages 18-24, who would not have the laches problem identified in our case.

Our Drinker, Biddle & Reath lawyers also represented Amanda Blackhorse (Navajo) and the other young people, who filed Blackhorse et al v. Pro Football, Inc., on August 11, 2006. It was identical to the Harjo et al case, and both sides stipulated to the record from our litigation. The PTO held the Blackhorse case in abeyance, pending the outcome of the Harjo case.

The Appeals Court ruled against us in 2009, solely on laches, and the Supreme Court did not grant our request for review, which ended our case. We lost, but only on the laches loophole and not on the merits. When we first filed in 1992, the franchise called our case “frivolous” and raised laches and a dozen other defenses.

The PTO in 1994 rejected laches and all the defenses, and directed our case to proceed to a trial on the merits, which we won from the TTAB. The trademark judges all agreed with us on three of four prongs, when only one was needed. They decided that the franchise name was not scandalous, but it was disparaging, held us up for contempt and held us in ill repute – and three outta four ain’t bad. Our case was in court for more than 17 years, which is to say that it certainly was not “frivolous.”

The Blackhorse case became active in 2010. In 2012, with our same record and the argument for why laches should not apply, they won a second victory from two of the three TTAB judges, including on laches. In 2015, a different federal district court judge ruled for the Native side on motions for summary judgment. The franchise owners pressed the case in appellate court, where it had been briefed and was awaiting trial.

Then in mid-2017, the Supreme Court ruled in an entirely separate case that the part of the trademark law that stood since the 1940s was unconstitutional. The Court held that it interfered with the free speech of an Asian band, which had been denied federal trademark protection for its name, Slants. The Washington franchise jumped on the bandwagon, claiming that the trademark law that was used to rule against it on disparagement interfered with its commercial free speech.

The Supreme Court didn’t draw a distinction between free speech from self-expression and name-calling from the outside, and struck down the part of the trademark law that was the cause of action for our cases.

The franchise claimed victory and the Slants leader lamented that his case was “hi-jacked,” although his lawyers and the franchise’s worked in tandem. One of them even worked on the Washington Post’s unoriginal, skewed and biased poll that served their cases so well. (WaPo repeated the discredited, outdated Annenberg poll that asked a confusing question and counted nearly everyone as Native, arriving at an impossibly high percentage of Native opinion favoring the deleterious name. At the same time, we had all the actual Native organizations representing the overwhelming majority of genuine Native Peoples as amici supporting the Native side.)

After the Supreme Court ruled in the Slants case, the Justice Department told the appellate court that the high court had rendered the Blackhorse case moot.

So, that wasn’t good news. But here’s something to keep in mind. Our two cases involved only one forum and one cause of action. And, most of us have children and grandchildren, and even some great-grandchildren, who are strong, committed and just getting started. We have garnered tremendous support and more and more schools changed their “Indian” references. We have welcomed young Native people and leaders who have lots of ideas and energy to build on what we and myriad others have done. I have full confidence in the future of our movement.

This movement began in 1962 for me, when Clyde Warrior (Ponca) informed and energized our senior class in Oklahoma City. He was organizing the National Indian Youth Council in the state and one of his priorities was getting rid of the University of Oklahoma’s mascot, “Little Red,” which OU Native students called the “dancing idiot.” In that and all his talks, he threw in the Washington team, calling its name the worst of the worst in racist sports insults and saying its presence in the Capitol brought shame on the whole country.

Clyde and wife Della Warrior coordinated with Native students and friends across OU and many other campuses, but he did not live to see “Little Red” become the first to fall in 1970. Stanford University, Dartmouth College and Syracuse University often are thought to have been the first, but they dropped their race-based references in 1972, 1974 and 1978, respectively.

Since 1970, Native Peoples and our allies have eliminated over two-thirds of these racial identifiers in American sports at the educational athletics levels of elementary, middle and high schools and colleges and universities. There were more than 3,000 racist stereotypes and cultural appropriations in American sports when ‘Little Red” was eliminated. Today, there are fewer than 1,000. We collectively have eliminated over 2,000 of these so-called Native names, logos, symbols, images, mascots and behaviors from the U.S. sport landscape. That’s over 2,000 names and images that once wounded and did emotional violence to our children, and now they don’t.

Over the course of all those changes in educational athletics, only two involved litigation. One was a protracted lawsuit by the University of North Dakota against the NCAA (with cases from other directions), as one of UND’s many failed strategies to hang on to “Fighting Sioux” over the objections of actual Sioux Tribes. The other was a less than serious suit, which was very quickly tossed out, against the Los Angeles Unified School District to reinstate all its retired “Indian” names and symbols.

All this means that we’ve already won the battle for societal change and are on the downhill slide for those last 900+ so-called Native names, logos, symbols, images, mascots and behaviors on the U.S. sport landscape. Among those 900+ are all the pro sports franchises, including the Washington one. We can’t rest until all of them are consigned to museums and history books, where they belong.

As long as we can be treated badly in this very public way, Native Peoples will continue to be persistently mistreated and both our collective and individual rights will be at risk. No matter how much capitalization and expertise we may have and amass, it will not result in good, clear policies and laws affecting us – because good, clear policies are not made for cartoons and mascots, and those are what inform all too many policymakers. We need to focus more on changing the sports and media institutions so that they give up trying to interfere with and substitute their judgment for Native Nations about nationhood, citizenry and the exercise of inherent sovereignty.

Here’s good news for you: the Capital News Service is reporting that 13 more schools since 2013 have dropped the objectionable name they once had in common with the recalcitrant Washington NFL franchise.

And, here’s an amazing coincidence for you: in the quarter-century since we first filed suit in 1992, the Washington NFL team has not gone back to the Super Bowl, and this season did not change that unbroken record.

Also Today:
Rising Hearts activists claim victory with viral #GoRedhawks mascot campaign (December 15, 2017)

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