Supreme Court Fumbles Native American Mascot Challenge

The US Supreme Court refused this week to hear a case involving a lawsuit by Native American activists seeking to revoke the federal trademark status for the name 'Washington Redskins.' The decision came without comment and in the middle of Native American Heritage Month.

At least four justices must agree to hear case in order for it to be on the court’s agenda.

The refusal to hear the case essentially holds in place a federal court decision last May and another lower court ruling in 2003 to overturn a 1999 decision by the Trademark Trial and Appeal Board. In the 1999 ruling, the federal agency agreed that the 'Washington Redskins' brand was too offensive to trademark.

A law governing trademarks prohibits registering names that 'may disparage ... persons, living or dead ... or bring them into contempt, or disrepute.' Passed in 1946, this law, known as the Lanham Act, was written to combat trademark infringement, false advertising and abuse of intellectual property rights.

Both subsequent decisions in federal court overturning the Trademark Trial and Appeal Board's ruling were based not on the merits of the case, however. In each, federal judges gave a victory to the NFL team based on the technicality that the plaintiffs waited too long to file their suit.

The owners, supporters and lawyers for the NFL franchise have claimed that the name causes no harm to Native Americans. They also insist that as a private entity, the team’s owners can name it anything they want.

Of course this argument implies that a private corporation can also dump nuclear waste anywhere or abuse workers or put salmonella in your peanut butter. After all, they’re a private entity and should be free of community or public controls, right? Buyer beware.

Native Americans responded to the team owners’ argument, however, by saying what may seem like harmless fun for some is painful and humiliating for them. In a brief filed on behalf of the plaintiffs, the National Congress of American Indians (NCAI) described the name as 'patently offensive, disparaging, and demeaning and perpetrates a centuries-old stereotype.'

The NCAI added that the term 'redskins' refers to a horrific time in US history when Native American body parts, skins and scalps were prized possessions for European settlers and military members. Such items were often bought and sold as commodities.

Approval of the trademark on the term 'redskins' is nothing more than a rubber stamp approving the genocide of Native Americans.

Sportswriter Dave Zirin remarked, 'The name 'Redskins' is a vestige from a segregationist owner, George Preston Marshall, who longed for a segregationist past. The idea that the Supreme Court would not even hear the case is little more than political cowardice.'

The lawyer for the plaintiffs asked the Supreme Court to consider the argument that disparaging trademarks could be overturned at any time.

Over the past two decades 11 high schools and two universities have dropped the use of Native American mascots as part of their team logos. Others such as the University of Florida, the College of William and Mary, Central Michigan University, the University of Illinois, as well as major professional teams like the Atlanta and Cleveland baseball teams, have refused to alter their team logos or change their names.

Activists insisted they will continue to pursue other legal measures against the Washington-based NFL team.