The Native American Mascot Issue Will Just Not Go Away

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Category: Education & Law, Higher Education, Intellectual Property Law, Race & Law, Sports & Law, Wisconsin Law & Legal System
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WISCONSIN.  In Wisconsin, the legislature is considering a bill that would give Native Americans the right to formally object to the use of a disparaging nickname by a high school in their school district.  Under the Democratic-sponsored bill, anyone who objects to the use of a race-based team name, mascot, symbol, or logo in their school district can file a complaint with the state superintendent of education.  A hearing would then be heard to determine if the name or mascot was being used in a way that was “discriminatory, or promoted student harassment or stereotyping.”  If the finding is that the use was discriminatory, the district would have one year to eliminate all use of the name or image.  If it failed to do so, the district would be subject to daily fines of $100 to $1000.

On February 25, the bill passed in the State Assembly by a vote of 51-42.  However, before passage, it was amended to exempt from the bill’s coverage any school that uses a federal-government recognized tribal name as its nickname or any district that obtains permission to use its name or logo from a federally recognized tribe.  (Consequently, the Auburndale High Apaches would not be covered by the bill.)  At the moment, the bill appears to be bottled up in the Senate where a vote has yet to be scheduled.

During the current academic year, there are still 38 Wisconsin high schools that use Native American team names, including the above-mentioned Auburndale and the all-Native American Menominee High School.  No school uses a racially-related team name referring to a group other than Native-Americans.

 THE NATION’S CAPITAL.  In Washington, D. C., the Supreme Court’s refusal late last year to review a lower court holding dismissing the 1992 Lanham Act challenge to the Washington Redskins trademark filed by Native American activist Suzan Harjo has not ended the Redskins problems.  Harjo’s suit was ultimately dismissed on the basis of laches—Harjo and her fellow complaints had waited too long to challenge the 1967 trademark registration by Pro Football, Inc., the corporate name of the Washington NFL team. 

However, a new effort to invalidate the Redskins trademark on disparagement grounds–Blackhorse v. Pro Football, Inc.—is currently pending before the Trademark Trial and Appeal Board.  The plaintiffs in Blackhorse are all young Native American adults who are claiming that because of their age, they had no previous opportunity to object to the mark and thus are not bared by the lower court ruling in the Harjo litigation.  More recently, a second action has been filed by different plaintiffs attacking the legitimacy of six derivative versions of the Redskins trademark—including one for Washington Redskins Cheerleaders—filed since 1992.  These actions are seeking to deny the Washington team the right to use the name “Redskins” but they are trying to prevent the team from being able to license the mark.

 NORTH DAKOTA.  Finally, the debate continues in North Dakota over the right of the University of North Dakota to continue to use the name “Fighting Sioux” for its athletic teams.  The NCAA has adopted an approach that prohibits the use of Native American team names and logos unless the tribal group bearing the name in question approves.  (More generic team Native American names like Indians, Braves, or Redmen are limited to those colleges like UNC-Pembroke or Haskell University that were founded as colleges for Native Americans.) 

The problem in North Dakota is that one of the state’s two Sioux tribes (the Spirit Lake Sioux) has authorized the use of the name but the other (the Standing Rock Sioux) has not.  The State Board of Higher Education had ordered the University to begin phasing out the nickname on November 30 unless it secured the permission of both tribes.  However, the situation has reached a standstill, and the University is still using the name.  (The Fighting Sioux ice hockey team is one of the favorites in the current NCAA championship play-offs and the team squares off against Yale in a first round game on March 27.) 

At the moment a number of Native-Americans are fighting to allow the University to continue its use of the name.  A petition signed by 850 members of the Standing Rock Sioux tribe is currently in circulation as pro-nickname members of the tribe try to force their leaders to schedule a plebiscite on the issue on the reservation.  (The Standing Rock Sioux also elected a pro-nickname council president last year.)

At the same time, eight members of the Spirit Lake Sioux have filed suit against the state arguing that they will be harmed if the University of North Dakota drops the Fighting Sioux nickname and that under an earlier settlement agreement between the NCAA and North Dakota, approval of the name by the Spirit Lake Sioux was sufficient for its continued use.  Their request for an injunction was denied by the state district court, but the appeal in Davidson v. State is currently before the North Dakota Supreme Court.  Apparently no action will be taken until the court rules.  Oral argument in the case is scheduled for tomorrow (March 23).

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16 Responses to “The Native American Mascot Issue Will Just Not Go Away”

  1. Martin Tanz Says:

    Always an interesting issue, Professor Hylton. Aside from the Fighting Irish, I can’t think of a non Native American mascot that negatively stereotypes an actual, rather than historic ethnic group. One can only imagine the uproar if some school or professional team chose a different ethnic or racial stereotype, Arabs or West Asians sporting a turban or Kafiyah, perhaps with a ritual during timeouts or at halftime of facing east and praying ot allah for victory. Or perhaps a Jewish mascot, a bearded Hasid could sing Havah Nagilah to fire up the home crowd. Or an African stereotype, instead of a tomahawk, a spear.

    It still amazes me that the Cleveland Indians have managed to continue with their mascot, and have not at least tried to make it less cartoonish and offensive.

  2. Chad Hendricks Says:

    It amazes me that politicians and Indians alike cannot leave this issue alone. What it comes down to is either a matter of hurt feelings and thin skin, or someone having too much time on his/her hands.

    The term Redskin was first used by Indians in the 1700′s to communicate with the French and English a countless number of times. Harjo’s suit was dismissed because her version of where the term Redskin came from was found to be not credible. Chiefs used the terms “Redskin” “Whiteskin” and “Blackskin” to describe Indians, Whites, and Blacks when communicating with officials of the French or U.S. government.

    If the term Redskin is offensive, why is it when I travel to the Oneida Reservation the tribal members refer to each other as “Skins” and if a tavern, for instance, is frequented by fellow Indians it is known as a “Skin Bar”?

    The purpose of a mascot is to motivate a team and bring good luck. I guarantee when a Seminole football player runs onto the field he does not scream “lets make fun of those Indians.” Rather, he is pumped and motivated to crush his opponent.

    For those people who want to help the Indian there are several problems that plague Indian reservations that need attention much more than a simple nickname. Alcoholism is found to be as high as 90% on some reservations. Fetal Alcohol Syndrome for Indians is around 750% that of what it is for Whites. Drug use, teen pregnancy, and diabetes are also major problems on reservations that you never hear of in place of the “mascot argument.” I need more than all of my fingers to count the number of limbs my relatives have lost due to diabetes, however, I do not even need one finger to count the number of relatives I have that have been hurt by an Indian mascot.

    Tribes all over the nation support the use of Indian mascots because they feel it is a source of pride. More importantly, Tribal Chiefs believe that with only four million Indians in this country, what else is there to promote the legacy and culture of the Native American?

    I am only half Indian so my “left” half says I do not want to be remembered as someone who deals a great hand of blackjack or can play a good game of bingo. I would rather be remembered as a Warrior. I am sure my mother, grandparents, aunts, and uncles would all want to be remembered the same way.

  3. Erica Inendino Says:

    This brings to mind University of Illinois, which was forced to retire Chief Illiniwek as their team mascot because he was deemed offensive. There are virtually no Illini tribe members left to support the school, however, because they were forced out of the state in the Indian Relocation Act and have merged with other tribes. Students at the university and people all over the state are still upset about losing Chief Illiniwek. People viewed him as a warrior, and a source of pride. The school was only allowed to keep their name as the “Fighting Illini” because the name was closely related to the state name. The case against Chief Illiniwek was brought up by none other than a White man, believe it or not. I don’t know that any tribe was actually offended.

    The fight to become “politically correct” seems to hurt people rather than help.

  4. Martin Tanz Says:

    So if, say, a school that is all white has a mascot that is offensive to, say, African Americans, is it less offensive if there are no African Americans attending the school?

  5. What makes any mascot “offensive”? Because a complainant says it is? It seems that some kind of objective criteria should be needed.

  6. Martin Tanz Says:

    Isn’t offensive one of those know it when you see it things, especially when it comes to mascots? The problem with mascots is, they are mostly silly and cartoonish.

    “Students at the university and people all over the state are still upset about losing Chief Illiniwek”

    Funny you should bring this up, but in my mind, Chief Illiniwek, and particularly the silly dance was offensive to native Americans. I am not native American or an alumnus of Illinois, that dance he did looked to me like a modern day version of a minstrel show.

  7. Martin;

    A reasonable person might call your characterization of Chief Illiniwek’s dance as “silly” to be an offensive remark. Eurocentric concepts of dance esthetics should not be imposed on Native American dance traditions.

    Erica brought up Chief Illiniwek; I can honestly say I never saw the mascot in the flesh; much less his dance. But your comments bring up an interesting question: do you have to intend to offend to be reprimanded or punished for your “offensive remarks”?

    If the Chief’s dance was an honest attempt to perform a more-or-less authentic Illini dance, can it be offensive to do so? If Marquette’s sporting teams paused to say the Pater Noster at times throughout a game, would that be offensive to Christians, or to non-Christians? Why? Why would a Native American dance performed in that same context be presumptively offensive to Native Americans?

    What I am getting at is that these mascots and their performances are almost casually regarded as offensive when, in fact they offended only a few people, and unintentionally. Why must everyone else change their behavior to satisfy the complaints of a few? Complaints that might not even be genuine. Since the intent of one group is not considered, why should the intent of either be important?

    By the way, Martin; I don’t think your comment was intended to be offensive; but others might.

  8. Martin Tanz Says:

    So to have a white man performing a Native American dance isn’t at least analogous to a minstrel show? Here is a link to the controversy. Some native americans do find it offensive. http://en.wikipedia.org/wiki/Chief_Illiniwek

    My understanding is, there is nothing authentic about the dance at all, and even if there were, removing a cultural or religious ritual from its context and having it performed by white people for entertainment purposes is demeaning. As to whether the dance itself is silly, OK, that was my opinion. I will let readers of this blog watch and decide for themselves.

  9. sean samis Says:

    Isn’t “a white man performing a Native American dance … at least analogous to a minstrel show?” A Miley Cyrus concert is analogous to a minstrel show. The analogy does not make either intrinsically offensive.

    “Some native americans do find it offensive.” I take that as a fact. Another fact: some do not find it offensive. Both conclusions are only the finder’s personal opinions, and neither is more credible or compelling than the other.

    “… removing a cultural or religious ritual from its context and having it performed by white people for entertainment purposes is demeaning.” As before, that is a conclusory opinion. It depends on the intent of the performance. The race of the performers is irrelevant.

    I watched the youtube clip, I still don’t get your complaint. Having seen what passes for serious, modern dance; I don’t see that this half-time dance is remarkable at all. Other readers will come to their own conclusions, but each conclusion will be no more than a personal opinion. De gustibus non est disputandum.

  10. Gordon Hylton Says:

    The Samis-Tanz debate highlights an important, but often ignored, aspect of the Native American name debate.

    Mascots and team nicknames are not interchangeable and traditionally performed different functions.

    Team nicknames are applied to the players on the team and suggest a quality supposedly possessed by the team. Sometimes that quality can be as innocuous as the color of the uniform or the geographic base of the team (as in Red Sox or Brewers), but normally it ascribes characteristics to the team that would serve it well in competition with other teams.

    Wolverines, Warriors, Indians, Fighting Irish,et al, all suggest that the members of the team are tenancious fighters.

    Almost by definition, team nicknames are not intended to be degrading. To use a degrading team nickname would be to degrade the members of one’s own team. (That is why no sports team is called the Snails or the Accountants. Sadly, that is also why no team was ever nicknamed Negroes, or Africans, or Zulus, because those terms in our historically racist society, unlike Indians or Braves, carried undesireable connotations.)

    Mascots perform a quite different function. Historically, they were viewed as humorous sources of “good luck.” Hence early sports teams featured African-Americans, midgets, wild and domestic animals, and the simple-minded (like Charles Victory Faust of the NY Giants) as mascots. The mascot was never intended to be associated directly with the teams themselves. This is still true, as no one expects Bernie Brewer to be brought into the game to the pitch the 9th inning of a tight game.

    Because they are intended to humorous or lucky,and are often absurd, mascots are by their very nature likely to be insulting to someone.

    In Marquette’s case, no one really objected to the name Warriors, it was the faux Indian mascot that created the controversy. Unfortunately (at least for partisans of the name Warriors) MU in the early 1990′s did not distinguish between mascots and team names.

    It seems to me that the case can be made that Chief Illiwik can be viewed as insulting (either on a theory of bad taste or cultural appropriation) while the team nickname Illini is not.

  11. Gordon Hylton Says:

    I meant to say “Chief Illiniwek.”

  12. Tracie Roberts Says:

    Nicholas,

    What tribe are you a part of? I see that you brought up Oneida. I am actually Oneida myself and have spent a lot of time on the Oneida reservation and have NEVER heard of a bar being referred to as a “skin” bar. Or anything else being referred to as a “skin” anything! You are absolutely right there are so many other things that cause a great deal of harm on reservations. But I think the number one factor is EDUCATION! Teen pregnancy, alcoholism, and diabetes can all be controlled through the education about these things. The biggest issue that most people who have been fighting this mascot have with the use of Native American mascots is that it is unwelcoming to some Native people and does not promote a healthy learning environment for all. When I was at Marquette, the mascot issue was brought up because a lot of alums were pushing for it to go back to the Warrior name. I was asked all sorts of ridiculous things like “Did you sleep in a tepee?” It affected a friend of mine so much he dropped out of MU and went to Madison, where racism has not proven to be an issue, and they embrace Native students and Native culture!

    I think what threw me off the most was that you said you were half Native! What an embarassment it is to have a Native person not realizing the horrific past of the term redskin. What do you feel when you hear boarding school, or orphan when related to Native people? I can tell you what my Great Grandmother who is 104 thinks when she hears those terms! Rape! And when she hears the term Redskin she thinks of a bloody lifeless body hanging on a stick! Check your facts before you speak for an entire population!

    Speaking of the Oneida nation, the first Native American counselor at MU was Oneida herself. She and her 10 children pushed so hard for that Warrior name to be changed! Her grandchildren have gone on and graduated from MU in many different programs and continue to play an active role in MU issues! She truely understood the importance of a healthy environment for all to live in! People from this same family helped set up the Higher Education program in the Oneida Nation which without MU would have been only a dream for me! Their efforts and accomplishments should never ever be forgetten or belittled as not important, or not as important as other issues! The people you refer to as having nothing better to do have paved a way for all Native people to have a better life! You should be ashamed for even insinuating that they have not been affected greatly by all the things you mentioned. By the way, that counselor suffers from diabetes and has made tremendous headway in that field, suffered from alcoholism along with her children, and was a teen mom herself! What an amazing woman to have overcome all of those things, and she just celebrated her 79th birthday on March 29, 2010, with some of her children and grandchildren who have continued to pave that road she started toward a healthy educational experience for all and Native American awareness at MU! Happy Birthday, Grandma! Thank you so much for bringing awareness to this issue and many many others in regard to Native people! Thank you for being a doer and not a talker! I am so proud to be a member of the Turtle Clan of Oneida and am pained by the ignorant and unfounded comments on this page about them.

  13. Mark J. Westpfahl Says:

    I am amazed by the follow up discussions that have been generated as a result of the “The Native American Mascot Issue Will Just Not Go Away” article.

    I feel that there is so much to comment on, but I will try to limit myself to a few comments this time and post more in the future.

    I have presented at national and international conferences in the past several years (names of conferences to be provided for those who like to fact check) on the issue of high school mascots and nicknames. As one person stated, there IS a difference between what a nickname and a mascot is. To take it one step further, there is a third distinction which includes the imagery of the two, namely, logos.

    Using the Milwaukee Brewers as an example you have the following things to consider:

    Nickname: Brewers
    Mascot: Bernie Brewer
    Imagery: logos with wheat, Mb, and namesake

    Now, let’s dig a little deeper. The NICKNAME, has historical and geographic significance based on German immigration and the booming businesses that were established (mainly by the Germans, but others brewed too!), but the interpretation of how the name was chose, and the intent of naming the team should be taken into consideration, but we need to remember that it is about “perspective.”

    The MASCOT, Bernie Brewer, can reinforce stereotypes, even if that was not the intention, because of the imagery that is associated with the actual mascot. However, IMAGERY can stand by itself, because a mascot is not a logo . . . which ties together the third element of the equation.

    These elements are typically generalized into one category: Mascots.

    But as one person attempted to break down the definition of the word mascot, even that can be a tricky word, depending on who is defining the word. Again, it boils down to interpretation and perspective.

    Next point, not all mascots or nicknames represent an attribute that schools want for their students to endure throughout their education experiences and beyond. Blooming Prairie, MN has the nickname (not mascot) of the Awesome Blossom. Yes, that is correct, their nickname is the awesome blossoms. They have no mascot to speak of, but they do have the imagery that is associated with the nickname. Google search the school and you will see the logo is an apple blossom with a face, muscular arms and legs. The history of the nickname and logo tell yet another interesting story. In the 1920s, an Austin, MN newspaper reporter wrote of how the football players for Blooming Prairie were blossomed into men because of their size in comparison to the their Austin High School (Packers, based on rich meat packing history of the city) counterparts. The name stuck, and they were the Blossom. Numerous attempts to change the nickname occurred in the 1940s, 50s and 60s. Ultimately, an art student wanted to jazz up the apple blossom logo and drew a face, muscular arms and legs and called it an awesome blossom. The principal happened to walking past the door at the time, saw the logo, and proposed changing the school nickname and logo to Awesome Blossoms, which they have been ever since.

    The point of this story is that there are histories associated with many of the nicknames, mascots and logos that we see on a daily basis. It is easy to assume the intent of what the nickname or mascot means, but again, it takes digging to find out the truths, and many people are not willing to either do the work, or accept the findings when they come out.

    Finally (and I just realized this post IS incredibly long), the name Sioux, although the federally recognized tribal name for the Dakota people, is NOT the name of the Dakota people. It is a derogatory term that was adopted by the Ojibwe (on-and-off-again friends and foes of the Dakota) of a French word which describes how the Dakota people were viewed by the Ojibwe (and yes, the word Ojibwe could be debated here, but let’s stick to the point). The point is this. Words, nicknames, logos, mascots and intentions can mean different things to different people.

    The problem is when the debaters do not take into consideration different perspectives and are unwilling to LISTEN to other viewpoints. They may choose to keep their own opinion, but too many people are unwilling to listen to the reasons and evidence of why people have the differing associations with mascots and nicknames . . . whether you are in favor of them or not.

    I welcome your comments and questions, as I generally keep an open mind, but may be compelled to challenge your arguments! :)

    Mark J. Westpfahl

  14. Sebastian Oakley Says:

    Professor Hylton, I would have to agree with Chad’s comment on March the 24th that politicians and natives alike seem to keep this issue alive for reasons of their own.

    As for Martin Tanz’ comment on March 22nd regarding the Cleveland Indians logo being cartoonish and offensive I would argue that the fact their mascot is cartoonish is what makes it friendly and less offensive. I’ll grant you that best practices behind mascot design have come a long way and perhaps older versions of this logo were in fact, more offensive like many of the symbols and characters of yesteryear.

    But all this is besides a now obviously beleaguered point that the Cleveland Indians
    choosing a native indian theme for their team name and branding all those years ago in 1901 is actually a respectful and reverential choice. Doing so pays tribute to the strength and speed and other desirable competitive traits which all sports teams wish to embody in their players, their name and their logo.

    It will be interesting to see who exactly continues to champion this issue as we move into the second decade of this new century.

    - Sebastian Oakley

  15. Joseph Hylton Says:

    Sebastian makes a number of interesting points. The recent controversy over the Fighting Sioux name at the University of North Dakota suggests that this issue is not yet ready to go away.

    My comments regarding the historical origins of the Atlanta Braves and Cleveland Indians team names can be found at http://law.marquette.edu/facultyblog/2010/12/01/does-knowing-the-origin-of-native-american-team-names-solve-anything/.

  16. @Peter – Yes, you are correct.

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