Beyond Trademark: The Washington Redskins Case and the Search for Dignity

Abstract

For more than sixty years, Native American activists have been involved in discussions and protests over the appropriation and use of tribal references in sports names, logos, and mascots. During this same period, many of these uses have since been changed, driven by civil rights struggles and a growing awareness of the proven social harms and racism inherent in these references. Despite a gradual movement towards abolition and evolving signs of cultural understanding, many mascots invoking native names and imagery persist today across professional, collegiate, and local school district sports. These mascots and team names and the trademarks associated with them are harmful not only because they reinforce negative stereotypes about native peoples, but perhaps even more pernicious is the harm done to Native people as a result of the message sent by the misappropriation of a peoples’ cultural identity and its depiction and commodification by others out in the world. Perhaps no effort has received more public attention than the longstanding battle over the Washington NFL football team’s name and its federally registered “Redskins” trademarks. The team’s trademarks have been the subject of organized protest and litigation for decades. Yet, the team maintains that its use of the mark is, and always has been, honorific. Native people do not see it that way.

This article explores whether the appropriation and commodification of the racial slur “redskins” and associated cultural imagery by the federal registration of the Washington team’s trademarks should be deemed a dignity taking. In her pioneering book, “We Want What’s Ours: Learning from South Africa’s Land Restitution Program,” Professor Bernadette Atuahene employs a detailed ethnographic study of South Africa’s land restitution program to develop the concept of a dignity taking. To constitute a dignity taking under her framework, there must be an involuntary property loss as well as either dehumanization or infantilization. While her framework was focused on the taking of land, this article extends her analysis to intangible property rights and argues that the misappropriation of cultural identity and imagery for use as a federal trademark can also constitute a dignity taking in certain cases.

Keywords: Trademark, Dignity Taking, Native Americans, Cultural Identity