More Reservations About Native American Mascots

Professor Sonia Katyal in Above the Law, December 09, 2009

Media Source

By Kashmir Hill

Legal battles over Native American mascots are being waged in both the professional and college sports arenas. The New York Times reports that the controversy over the Fighting Sioux of the University of North Dakota has gotten more complicated.

The National Collegiate Athletic Association advised the school, along with 17 other universities, to change its mascot three and half years ago, says Ashby Jones at the WSJ Law Blog. While other universities acquiesced, the Fighting Sioux fought back, filing a lawsuit against the NCAA.

The suit was starting to wind down, and the name was to change soon says the NYT, until members of the Sioux tribe decided to file a lawsuit of their own. To keep the name. They’re proud of it:

The members from Spirit Lake behind the lawsuit assert that many of the American Indians opposed to the Fighting Sioux nickname are simply from tribes other than the Sioux, and are jealous of all the recognition. (Opponents call this absurd.)

Eunice Davidson, 57, who says she is “full blood” and “grew up on this reservation” tells the New York Times: “I have to tell you, I am very, very honored that they would use the name.”

When we interviewed Amanda Blackhorse, a member of the Navajo Nation who has a petition pending before the Trademark Board about the Washington Redskins name, she expressed skepticism about Native Americans who defend tribal mascot names. She said they are in the minority.

This week, Fordham Law professor Sonia Katyal penned a column for Findlaw about the IP and First Amendment issues when it comes to racialized symbols. Why do we object to “Wong Brothers” but embrace the “Skins”?

Katyal writes that the problem is not restricted to sports teams:

Americans have proved increasingly and rightly sensitive about representations that are racially derogatory. Thirty plus years ago, American advertising was littered with objectionable stereotypes of people of color. Today, many of those brands have since retired. Even Aunt Jemima has been given a “liberation makeover,” replacing her kerchief with a short bobbed haircut, crisp white sweater, set of pearls, and shining smile. Miley Cyrus faced sharp criticism when she was photographed pretending to be Asian by “slanting” her eyes. A few years ago, there was a national outcry when Abercrombie & Fitch put out a white T-shirt featuring caricatures of Asians with slanted eyes and rice-paddy hats that said, “Wong Brothers Laundry Service — Two Wongs Can Make It White,” along with other, similarly themed shirts. Immediately after a public outcry, the shirts were pulled off of the shelves, and the company issued a public statement: “We are truly and deeply sorry we’ve offended people.”

   Yet even as African-American and Asian-American stereotypes are widely decried, stereotypical - and sometimes shocking — caricatures of Native Americans persist largely without complaint: The cigar store Indian; the sports team mascot; and the ubiquitous Halloween costume, complete with feathered headdress, are just the most prominent examples.

   Fans who thinks nothing of doing a “tomahawk chop” or exhorting their team to “scalp the enemy” do not always see or understand how those attitudes feed into the longstanding, pervasive harms that minorities often face when their culture is thoughtlessly mocked. Not only do these stereotypes fail to recognize the living reality of Native Americans, but they also suggest that Native culture, unlike any other, is safe to make fun of.

Katyal acknowledges those who argue that mascots honor Native Americans — like the Sioux who have filed the lawsuit in the University of North Dakota case — but she says the psychological damage outweighs that:

   The American Psychological Association, along with many other researchers, has documented a link between self-esteem and racially hostile mascots, pointing out that their use has a negative effect on all students (not just Native students). Testament to the harm that is caused can be found in the fact that, in every case where a Native American mascot exists, there is also a group of Native Americans students and their parents, pleading with the school to change the name.

That is one of the main arguments used in the challenges to the Redskins name. Though SCOTUS denied cert in Harjo v. Pro-Football due to a laches issue, the battle over the Washington Redskins battle will continue in the form of a petition filed by Amanda Blackhorse and others, represented by Philip Mause of Drinker Biddle. We checked in with Mause regarding the next step for the Blackhorse petition against the Redskins trademark. He wrote:

   The next step will be for the Trademark Board to set a schedule; during the course of discovery, the parties’ evidence will be analyzed and the Trademark Board will ultimately resolve the new case. A schedule hasn’t been set yet and we are in the process of organizing ourselves to present our direct case.

If the Redskins’ record this season is any indication, their chances of winning seem slim.