Amanda Blackhorse, a 31-year-old Navajo social worker, was in Alexandria, Virginia in early March to begin the next phase of getting the National Football League’s Washington, D.C. team and owner to realize that their trademarked name is racist, and should be changed.
Blackhorse attended a hearing of the Trademark Trial and Appeal Board, part of the U.S. Patent and Trademark Office, which previously cancelled the team’s offensive trademark in 1999 after Suzan Shown Harjo, a well-known Cheyenne and Hodulgee Muscogee activist, and several other notable American Indian advocates and elders led a similar effort. The Redskins and its current owner, Dan Snyder, fought that win in the courts, and the U.S. Court of Appeals in Washington ultimately upheld a lower court's decision that favored the football team on a legal technicality – laches – that said the plaintiffs should have filed their claims when they were younger. The U.S. Supreme Court chose not to take up the case in 2009.
So, now, Blackhorse and a group of younger Native Americans than Harjo and her group, has started the battle anew, hoping to achieve a similar victory that would cancel the trademark. They first filed their petition with the patent office in 2006.
“I think that the overwhelming support that we’ve received from Indian country and non-Natives has been very strong,” Blackhorse said. “I left the hearing feeling really good about it.”
Based on the proceedings, she felt that the trademark board understands that the team name is a racist slur. A decision from the board could come at any time, but it could take up to 18 months.
Because of Blackhorse’s age at the time of filing – 24 – her lawyer, Jesse Witten, of law firm Drinker Biddle & Reath, thinks that the Redskins won’t be able to successfully argue the age-based legal technicality defense this time around. “The issue that ultimately tripped up the Harjo case is known as laches—and the patent board seemed very skeptical that laches could apply to Amanda Blackhorse or the other current petitioners,” Witten said.
The youngest petitioner in this case filed her claim when she was 18. But lawyers for Pro-Football Inc., the team’s parent company, argued at the hearing that there isn’t enough evidence that the name is offensive, and that it is meant to honor Native Americans. They also continue to argue that laches should apply. In one of the more surreal moments of the hearing, according to Blackhorse, the Redskins’ lawyers made a point of saying that some dictionaries do not list the term as problematic.
“I don’t know where they’re getting these dictionaries from,” Blackhorse lamented. “Almost every dictionary that I know of today sees it as a racial slur. Maybe they are using old dictionaries.”
Officials on the trademark board noted during the hearing that dictionaries that have failed in the past to have a specific usage label have in more recent editions included usage labels that have indicated the word is offensive and a slur term. In older dictionaries, some terms that are widely considered offensive, like squaw and injun, also didn’t have usage labels, but general society tends to know they are offensive words. Harjo believes that Blackhorse’s case will prevail, just as her own case did in 1999.
“We’ve already prevailed once on the merits,” Harjo noted. “Then we spent ten years defending the victory. We only lost on the technicality of laches.”
While Harjo’s case was ultimately defeated, public opinion appears to be continuing to shift against the name, even in some quarters of Washington. Legislators have called it out, as have major newspaper columnists and bloggers, as well as psychologists who say its presence is damaging to younger Indians. Several schools and states have also removed offensive Indian mascots and location names.
“There does seem to be an offsetting voice now to the fan base of the Washington team,” Harjo said. “Many understand that you can love the team, but hate the name.”
Witten predicted that the team will change its name when there is enough public pressure and attention on the issue, even though Synder vowed in 2003 to never change the name. “This trademark ruling is a catalyst for getting other people to be aware and get involved,” he said.
Harjo, who has now been working on this issue for several decades, said she always knew this would be a long-fought battle.
“That’s what you learn in working on any public policy issue where you are working for change,” she said. “It’s like gardening. You have to be constant and patient.” It’s a lesson that Harjo is now teaching to the new generation, and Blackhorse, for one, is ready to garden.
“We will keep the momentum growing,” she vowed.