Washington's NFL Team Is In Desperate Need Of A History Lesson

A certain NFL team with a name disparaging of Native Americans is hoping the U.S. Supreme Court can offer some relief in its ongoing trademark cancellation battle.

The team argued in a special petition filed Monday that the U.S. Patent and Trademark Office's decision in 2014 to cancel its registrations on six trademarks for the name "Washington Redskins" is unconstitutional. Cancellation under the so-called disparagement clause of the Lanham Act (the name of the federal trademark law) violates the team's First Amendment right to free speech, the team said. 

In its petition, the team made an even more audacious claim: Native American groups slept on their right to object to the name, so now they're too late to complain. 

"[T]he PTO repeatedly had registered the Redskins marks, six times between 1967 and 1990, each time without objection from anyone, and each time concluding that the marks were not disparaging to Native Americans," the team argued in Monday's petition, adding that the government's 50-year "delay" in canceling the trademark amounts to a violation of the team's due process. 

Joel Barkin, spokesman for the Oneida Indian Nation, which is among several Native American groups pushing for the team to change its name, on Tuesday balked at the team's argument.

He noted that Native Americans have not only objected to the name in the past, but that as a population, they have "systemically had their rights undermined and have been disenfranchised for generations." 

He called it "sick" for the team to say Native Americans "haven't complained before."

"It’s a population that has been ripped apart and spread around," Barkin said. "It’s taken generations to politically rebuild the presence as a people. It’s a shameful attack."

The team, Barkin said, also ignores its own history that's steeped in racism. The name was picked by the team's first owner, George Preston Marshall, who for nearly a quarter-century was "identified as the leading racist in the NFL,"  according to University of Mississippi professor Charles K. Ross, who wrote a 2001 book on the integration of the league.  

Marshall refused to put black players on the team until he was forced to in the 1960s, well after other teams had integrated. His resistance to black players was driven in part by a strategic decision to appeal to Southern fans, according to Barkin. 

"They wanted to be the South’s team. That was the history of this franchise," Barkin said.

Marshall made the claim -- echoed by current team owner Dan Snyder and the NFL -- that the team name was in honor of its first coach's Native American heritage. Coach William "Lone Star" Deitz's claim of Native American heritage has been since debunked by historians as false. 

Snyder has argued the name is not disparaging and that it represents honor, pride, respect "and hopefully winning." 

Barkin said many Native people feel otherwise. 

"It’s not up to the person offending to decide what’s offensive and what isn’t," he said.

The team's special petition to the Supreme Court seeks to bundle its fate with that of a group facing similar pushback for its disparaging name: the Oregon-based dance rock group, The Slants. (The Chinese-American band has said they wanted to reclaim a word that has historically been used as a slur against Asians.)

Both groups are facing resistance from the U.S. Patent and Trademark Office on grounds their respective names disparage specific ethnic or cultural groups and are thus in violation of federal trademark rules; the football team's trademarks were canceled last June, while the band's trademark application was rejected in 2010 and 2011. 

But where the football team has hit legal roadblocks, the band prevailed when an appeals court last December struck down the so-called "disparagement clause" as a First Amendment violation.

The team now hopes the Supreme Court will see its claim as one equally or even more worthy than the band's to represent the legal issue in question, said University of Chicago law and economics professor Omri Ben-Shahar. 

If the high court agrees, the team gets to bypass another round of litigation. 

"The Redskins are saying 'since we lost, instead of taking it to the Court of Appeals, let’s go directly to the Supreme Court,’” Ben-Shahar explained.

The Native American umbrella group driving the national campaign for the team to change the mascot on Tuesday called the team's legal maneuver nothing more than an act of desperation.

"[T]he Washington team is trying to jump through legal loopholes while a growing number of Americans, and even our federal courts, are demanding an end to the demeaning R-word slur,” Change the Mascot leader and Oneida Indian Nation Representative Ray Halbritter said in a statement. “Given this reality, the team has been left with few viable options given their unwillingness to simply accept that slur needs to go."

The Supreme Court has not yet decided if it will hear The Slants' case or accept the team's petition.

If the team's trademark cancellation remains in place, it can still use and profit from the name, and may still even retain some legal rights to the trademark. Losing the registered trademark is more symbolic of the brand being de-legitimized legally, Ben-Sahar said. 

The court's ruling either way will have no impact on the team's ability to keep using the name. 

"What people are getting wrong is that they think this battle will be resolved by law. This is being played out in a different theater," Ben-Sahar said. 

Barkin agreed.

"The ultimate solution is not a legal one in getting them to change the name," he said. "This is the team having to decide, is this the brand they want going into the future?”