Names Will Never Hurt Me Research Paper

Matt Miller 12/6/12
Topic Research Paper SPM 373

Sticks and Stones May Break My Bones but Names Will Never Hurt Me
(Unless I am Native American)
Introduction
Arguments can be made that Native Americans have been discriminated against since Christopher Columbus navigated into the New World in 1492, and that it has lasted in society and sports up to this day. One very controversial issue in sports has been the use of Native American nicknames and mascots among schools and professional sports teams. Since the 1930’s and 1950’s there has been roughly 2700 schools, and five professional sports teams that have used Native American nicknames, mascots, and logos (Wright, 2007). However, since the 1970’s, around 600 schools
have either changed their names or discontinued using Native American mascots (Dennie, 2005). Some of these changes have come voluntarily by schools in order to be more politically correct, while others have changed as a result of court rulings, possible NCAA sanctions, or government legislature. Nevertheless, there are some schools and teams that completely refuse to change their traditions. No matter what level of sport, there are both arguments for and against the use of Native American names and mascots.
Support for using Native American Mascots Proponents of Native American mascots have argued that using Native American names and mascots is not to be harmful at all.
They claim that schools and owners of teams are showing respect by honoring Native Americans through the names. These people want to highlight the courage and integrity of the Native American people (Kraatz, n.d.). For example, Karl Swanson, former vice president of public relations for the Washington Redskins, argued that the term “redskins” symbolized the greatness and strength of a grand people (Emert, 2003). The use of a non-fictional person provides for more of a personal touch for teams. This personalization for teams, if eliminated, would destroy the culture of a school or fan-base (Cummings, 2008). Teams would not intentionally be named after Native Americans if people would hold them in contempt, but rather be used to associate Americans with the spirituality of Native American heritage, while providing widespread coverage of this culture (Wright, 2007). In terms of financial means, proponents have argued that names have been in place for so long with very little successful appeal, so if a change were to occur then it would destroy merchandise sales for the school or team. For many institutions and organizations there would be loss of millions of dollars in trademark changeover or cancellation on merchandise and apparel, while current merchandise would become obsolete (Emert, 2003). Regardless of the
financial implications, the proponents highly stress the aforementioned intangible characteristics about Native Americans.
Opposition for using Native American Mascots Activists and opponents of Native American mascot use argue the complete opposite in terms of their portrayal in sports. The image of Native Americans has said to be mascotized, which is to attach depictions of a group to commercialize a product in which the depicted group has been disrespected or portrayed in an inappropriate stereotypical manner (Kraatz, n.d.). This sense of mascotizing tends to reduce a person to a caricature, which Native Americans claim to be disparaging due to lack of knowledge about Native American culture (Fears, 2005). One example is the Cleveland Indians logo of “Chief Wahoo,” with a wide grin considered dehumanizing since it does not accurately portray an Indian (Wright, 2007). Another aspect considered offensive is the actual nickname of the team. Teams such as the Washington Redskins and the North Dakota Fighting Sioux have degrading names according to opposing Native Americans. Schools and professional teams have also used rituals, dances, and traditions that deeply offend Native American heritage because all have significant meanings to their culture that non-Native Americans would not understand. Some actions consist of the Tomahawk Chop by Atlanta Braves fans, a mockery of dances by Chief Illiniwek at the University of Illinois, and the inaccurate dressing of Chief Osceola at Florida State. Older members of the Native American community stronglyy feel that the consistent disparaging image will cause their youth to suffer and question their self-image while lowering self-esteem (Emert, 2003). Opponents argue that stereotyping is used for financial gains and intrinsic worth to the teams that use the logos, in which Native Americans receive no financial benefits (Kraatz, n.d).
Court Case: Harjo v. Pro Football Inc. The most successful attempt at Native American name and mascot changing was from the court case, Harjo v. Pro-Football Inc (1992). In 1992, Susan Harjo and a group of Native American activists filed a petition with the Trademark Trial and Appeal Board (TTAB) to cancel all trademarks held by the Washington Redskins (Cummings, 2008). These activists deemed the nickname, Redskins, to be very offensive and disparaging from the meaning it holds. The term is used to refer to Native Americans who were killed and scalped by bounty hunters in the 1800’s as evidence of a dead Indian in exchange for cash (Emert, 2003). The plaintiffs challenged the trademark under section 2(a) of the Lanham Act. This act is related to the use of trademarks, but specifically section 2(a) argues that trademarks can be revoked for being disparaging, which is what the plaintiffs felt (Wright, 2007). The plaintiffs conducted a survey as evidence that illustrated that 46.2% of the general public and 36.6% of Native Americans found the term “redskin” to be offensive. The plaintiffs also utilized a linguistic expert to argue that the context of the word is indeed disparaging, and the plaintiffs claimed that the term is rarely used in the media and other areas outside of the football team (Wright, 2007). The defendants also used a linguistics expert who said that the term is actually neutral and benign among the Native Americans themselves. Pro-Football also argued that the term “redskin” has taken on a completely new meaning in reference to the football team (Wright, 2007). The TTAB then ruled in favor of the plaintiffs and cancelled the trademarks. It claimed that the term is disparaging to Native Americans and in violation of section 2(a) of the Lanham Act, and still retains meaning with the Native American community and did not reside with the football team (Wright, 2007). However, in 1999, Pro-Football appealed to the US District Court for the District of Columbia, and eventually in 2003 the District Court overturned the TTAB’s decision. The court found that the trademark was not disparaging under the Lanham Act and violated the doctrine of laches (Wright, 2007). The doctrine of laches is an equitable doctrine that denies a petitioner in asserting a claim due to unreasonable delay (Wright, 2007). In this case, the Washington Redskins had registered the trademark in the 1960’s and it was not until the 1990’s in which it was challenged, so there had been heavy marketing over time invested in creating brand equity. The court ruled that the cancellation would create economic suffering for the team. According to a Forbes Survey, at the time, the Redskins were the most valuable team valued at $1.142 billion, so there were plenty of areas in which they could have lost money such as marketing and merchandising (Wright, 2007). The court ruled that the trademark did not violate the Lanham Act because it was not disparaging due to lack of quality evidence. There was lack of substantial evidence in the surveys to show intentional disparagement and it was not a substantial composite, so it did not reflect the true population of Native Americans (Cummings, 2008).
Challenges Against Mascot Use In addition to activists petitioning under the Lahman Act, possible challenges can be made through Title VI of the Civil Rights Act of 1964, the Public Accommodations Challenge, and Intentional Infliction of Emotional Distress. Title VI of the Civil Rights Act of 1964 states that no program that receives federal funding may discriminate on the grounds of race, color, or origin (Moushegian, 2006). Under Title VI, two forms of racial discrimination can be exercised. Different treatment and hostile environment are the areas in which Native Americans can challenge. As of 1994, the Office of Civil Rights (OCR) has interpreted challenges of this nature applied to team mascot under the hostile environment (Trainor, 1995). A school is found to violate Title VI if the OCR finds that a racially hostile environment existed, the school had notice and is aware of the hostile environment, and the school failed to respond adequately to the situation (Trainor, 2005). Then the OCR must find that the harassment was severe or persistent. If the harassment is then found to be severe, the reasonable person of the same standard is used. This standard measures if the same issue would have adversely affected the enjoyment of the same aspect of the recipient’s education by a reasonable person of similar age and race (Trainor, 1995). For example, Native American students might claim that a mascot at a sporting event created a hostile environment for them, so they could not enjoy the game. Intentional Infliction of Emotional Distress can also be used to combat Native American mascots. This claim is valid if the plaintiff can prove that conduct was extreme and outrageous, the actor must intend conduct to inflict severe emotional distress, and the conduct must in fact cause emotional distress (Moushegian, 2006). However it is difficult to prove that Indian mascots are in violation due to high subjectivity and that no schools intend to inflict emotional distress from mascots and names. The Public Accommodations challenge can be argued under Title II of the Civil Rights Act. Title II guarantees full and equal enjoyment of public places regardless to race, color, origin, or religion (Wright, 2007). Native Americans have thus argued that disparaging names and mascots keep them from attending sporting events, which denies them public accommodations. Violation of this depends on the nexus between the team and the stadium as a public place, full enjoyment was denied, and that the names effectively excluded Native Americans from sporting events (Moushegian, 2006). However, this challenge is unlikely to succeed in court in fear of a ‘slippery slope’ where anything or any place with potential offense to a certain group could be barred in public accommodations.
NCAA Sanctions and Collegiate Examples In 2005, the NCAA adopted a policy that prohibited institutions from participating in NCAA postseason play if it had a mascot or nickname offensive to Native Americans. As of 2006, there are still 18 universities with Native American names (Moushegian, 2006). Schools have either voluntarily changed, become exempt, or still resist the NCAA on the mascot issue. One notable school change was at Marquette University. It was first nicknamed the “Warriors” in 1954 in honor of the history the school had with Indians, and then in the 1960’s “Willie Wampum” became the mascot (Rhode, 1994). However in 1971 the mascot was abolished as declared demeaning to Indians. In the 1980’s the “First Warrior” was created to replace “Willie Wampum.” Due to lack of interest in this mascot, and Marquette wanting to not be seen as being disrespectful towards Native Americans, the mascot and logo were then voluntarily changed to the “Golden Eagles” (Rhode, 1994). Schools such the Utah Utes and the Florida State Seminoles are exempt from the postseason ban list because they have shown that they have good relations and permission from their respective tribes to use their names. For example, Florida State has a strong relationship with the local Seminole tribe and has their mascot, Chief Osceola, named after an actual figure (Dennie, 2005). In addition, Florida State offers extensive education programs and scholarships to Native American students to keep this tribal-university relationship strong (Cummings & Harper, 2009). The NCAA recognizes this attempt at educating its students and six decade long relationship, and granted Florida State removal from the banned list. Other schools are not as lucky. The most resistant school is the University of North Dakota. The North Dakota Fighting Sioux have refused to change the nickname even though the local Sioux tribe has claimed it to be offensive. After being placed on the banned list by the NCAA, in 2006 North Dakota was set to host a Division I hockey regional. In order to host the event North Dakota appealed to the NCAA (Hyman, 2006). The Fighting Sioux lost this appeal, so then sued the NCAA in federal court. A lawsuit was settled where the Fighting Sioux had three years to create a non-hostile environment or convince the Sioux tribe for support (Cummings, 2008). After this time period elapsed the North Dakota Board of Higher Education approved for the retirement of the nickname and logo at the end of the 2010-2011 academic year. The deadline for this was then extended into the summer of 2011, but before then, the North Dakota Senate voted for the university to keep the nickname. Petitioner signatures were also collected to keep the school’s nickname in 2012. However, during that year, the NCAA restated the consequences if North Dakota did not change. Therefore, before the statewide vote on the nickname, UND President Robert Kelley warned the public about the possible consequences, and in the vote the public officially decided to retire the “Fighting Sioux” nickname. As a result of the vote, the school removed its nickname and logo, and is prohibited from selecting a new name until 2015. Another school that received much controversy was the University of Illinois. Chief Illiniwek is the mascot that performs at halftimes of sporting events, most famously at football games since 1926. The mascot performs dances during halftime, which have been argued to be offensive towards Native Americans, and provoked an injunction to cease the mascot. The plaintiffs in the case claimed that they felt humiliated and embarrassed, as their heritage had been reduced to halftime entertainment. The challenge came under a violation of the Civil Rights Act, but the court dismissed the claim as the University of Illinois Act stipulates that the Chief is an “honorable symbol” of the university (Cafcas v. University of Illinois, 2006). The mascot had already been grandfathered into the school before the enactment of the Civil Rights Act, and the court ruled that there was no confliction with these statutes (“Cafcas v. University of Illinois”). Eventually the school felt the need to voluntarily retire the mascot to not further incite any possible trials. Chief Illiniwek was removed in 2007, but the school retained the nickname “Fighting Illini” as it is associated with the state of Illinois and not the mascot.
Conclusion
The issue of Native American mascots in sports will continue to be a controversial issue. Professionally, there is a stronger stance by teams that want to keep their brand equity and refuse to alter their trademarks. Collegiately, the NCAA is trying to put an end to possible disparaging names and mascots through rules and regulations. Progression seems to be in the making over the years, with schools voluntarily changing names or seeking the approval of tribes in response, and not wanting to be found in violation. No matter what the level though, activists have found numerous ways in order to bring about a challenge regarding the use of Native Americans in sports. However, even though activists seem to have the leverage with these possibilities, courts have mostly erred on the side of schools. Since this issue is very subjective to the views of Native Americans there will be continued hostility and no define line of interpretation.
References

Cafcas v. The University of Illinois, 368 Ill. App. 3d 321 (2006).
Cummings, A. (2008). Progress Realized? The Continuing American Indian Quandary. Marquette Sports Law Review, 18 (309), 309-335.
Cummings, A., Harper, Seth. (2009). Wide right: Why the NCAA’s policy on the American Indian mascot issue misses the mark. University of Maryland Law Journal of Race, Religion, Gender and Class, 9 (135), 135-179. Dennie, C. (2005). Native American mascots and team names: Throw away the key; the Lanhman Act is locked for future trademark challenges. Seton Hall University School of Law Journal of Sport and Entertainment, 15 (197), 197-220.
Emert, P. (2003, Winter). Native American mascots: Racial slur or cherished tradition. Respect: A Newsletter About Law and Diversity, 2 (2), 1-8.
Fears, D. (2005, August 14). Indian mascots: Matter of pride or prejudice. Washington Post. Retrieved from http://www.washingtonpost.com/wpdyn/content/article/2005/08/13/AR20050 81300448.html
Hymen, M. (2006, February 13). No surrender from North Dakota in NCAA mascot controversy. Sports Business Journal. Retrieved from http://www.sportsbusinessdaily.com/Jo urnal/Issues/2006/02/20060213/Other-News/No-Surrender-From-North-Dakota-In-NCAA Mascot-Controversy.aspx
Kraatz, C. (n.d). The truth about American Indian mascots. Abstract retrieved from http://www.a ics.org/mascot/truth.html
Moushegian, B. (2006). Native American mascots’ last stand? Legal difficulties in eliminating public university use of Native American mascots. Villanova Sports and Entertainment Law Journal, 13 (465), 465-92.
Rhode, J. (1994). The mascot name change controversy: A lesson in hypersensitivity. Marquette Sports Law Review, 5 (1), 141-160.
Trainor, D. (1995). Native American mascots, schools, and the Title VI hostile environment. University of Illinois Law Review, 1 (971),
971-1001.
Wright, W. (2007). Not in whose name?: Evidentiary issues in legal challenges to Native American team names and mascots. Connecticut Law Review, 40 (279), 281-315.