This is a continuation of our conversation about renaming entities, including educational institutions, public spaces and museums, and holidays like Columbus Day.
Native American names, symbols and innuendos have been used in the sports world for more than a century. While many college and professional sports teams have addressed their offensive mascots and sport traditions, there are still thousands of K-12 schools that have yet to rebrand their culturally insensitive mascots. Mascots like “Big Reds,” “Red Raiders,” “Redmen,” “Chiefs,” “Warriors,” “Indians” and “Arrows” are still commonplace mascots for schools. As of April 5, 2023, there were still 89 K-12 schools in 40 districts in the United States that use “Redskins” as their mascot, despite the Washington professional football team finally retiring the “Redskins” name in response to increasing pressure in 2020.
The Landscape of Native American Mascoting in K-12 Schools
In 2020, the National Congress of American Indians (“NCAI”) expanded its efforts to end “Indian” mascots by developing its National School Mascot Tracking Database. In 2021, the NCAI further expanded its initiative and created a State Activity Tracker, working with legislatures to end mascot names promoting harmful stereotypes. However, as of April 5, 2023, 1,901 schools in 966 districts still had native “themed” mascots, despite the fact that more than 21 states have taken formal action or are working to address the issue of Native mascots in their public K-12 schools. State legislators have proposed legislation banning the use by schools of these mascots, and state human rights commissions have also held hearings on derogatory mascots.
The effect of these mascots goes beyond uniting attendees and alumni at sporting events and results in an uncomfortable experience, at best, for students of Native American heritage who are required to wear these mascots on their uniforms or watch as their peers dress up in Native American headdress and red full-body paint at assemblies. For Native Americans in the school and surrounding communities, this insensitive display fosters otherness and unbelonging and creates an unwelcoming environment.
State Actions to Ban Native American Mascots
Maine: In 2019, Maine was the first state to ban public schools from using any name, symbol or image that depicts or refers to a Native American tribe, individual, custom or tradition as a mascot, nickname, logo, letterhead or team name.
Michigan: In 2016, the Michigan legislature created the Michigan Native American Heritage Fund ("NAHF") which allows for a portion of each year’s state revenue sharing payment to be deposited into the NAHF. In 2022, the NAHF distributed nearly $480,000 to Michigan communities to help decommission racist mascots in six of their school districts and colleges, including funds to renew facilities and team uniforms.
Ohio: Legislators in Ohio, where there are more schools with Native American mascots than any other state (204 schools as of March 2022), have introduced a resolution that encourages Ohio’s schools to retire the use of Native American mascots and to engage Native American tribes as part of that process. The NCAI has asked these schools to consider changing their mascots and yet some, like Bucyrus City Schools in Ohio, have voted to keep their Redmen mascot.
Colorado: Other states, such as Colorado, have gone a step further and created an "offensive mascot registry," which lists schools that have failed to “eliminate American Indian mascots, logos and other imagery by June 1 [2022].” The Colorado Commission of Indian Affairs was tasked with implementing Senate Bill 116, which fines schools $25,000 per month, payable to the state education fund, until the school ceases use of the offensive mascots. Affected schools are eligible “to apply for state financial assistance for public school capital construction grants” to help fund the change of mascots and some districts have already budgeted funds for their mascot changes. As of June 1, 2023, only two schools in Colorado remained non-compliant.
New York: New York, generally considered one of the most progressive states, is surprisingly one of the slowest to adopt mascot name reform. After more than twenty years of public backlash and push for change, the state’s Board of Regents finally voted in April 2023 to require that Native American-themed logos be retired by 2025 unless schools get approval from a recognized Native American tribe. Schools that fail to discontinue using a Native American mascot risk losing state funding.
California: In 2015, former Governor Jerry Brown signed the California Racial Mascots Act, which prohibits public schools from using the term “Redskins” as a school or athletic team name, mascot or nickname. While California is one of the few states to sign a ban into law, as of March 3, 2022, there were still 73 schools in 54 districts in California using these racist mascots.
Connecticut: Governor Ned Lamont in Connecticut signed similar legislation in June 2021. Most schools and their associated athletic teams with Native “themed” mascots changed their names and logos to comply with the law. In November 2022, the Connecticut Office of Policy and Management conducted a review of schools and three schools were not in compliance with the statute and deemed ineligible to receive grant funding by the Mashantucket Pequot and Mohegan Fund. One of the schools was expected to receive $95,000 but lost funding. As of November 2022, five other schools continued to use Native American names and imagery because they received consent from the recognized tribe to continue their use.
Others: States like Illinois and Minnesota have introduced comparable bills prohibiting Native mascots, but none of them have reached a full chamber vote. Oregon legislators have provided an exception to the name change and permit district school boards to keep their Native American name if they enter into an approved written agreement with the federally recognized tribe with which the mascot is associated. The NCAI continues its work to identify, track, engage and educate schools about whether and how to change their mascots.
Trademark Law and the United States Supreme Court on Disparaging Marks
Disparaging names are best addressed at the state level, for several reasons. Education is traditionally a state and local issue, and it would be rare for a K-12 school to seek a federal trademark registration for its name or mascot. Historically, under the Lanham Act, 15 U.S. Code § 1051, an aggrieved party could petition the Trademark Trial and Appeal Board (“TTAB”) of the United States Patent and Trademark Office (“USPTO”) to cancel a trademark registration that "may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute." While the USPTO could not refuse a trademark solely because of a mark’s disparaging, immoral or scandalous nature and the provision was applied inconsistently, it did provide some avenue for relief. However, in 2017, in Matal v. Tam, 137 S. Ct. 1744, 1765 (2017), the United States Supreme Court struck down the disparagement provision on the grounds that the clause violated the First Amendment because it discriminated on the basis of viewpoint. In this case, the USPTO had denied an application to register a trademark for a band’s name, “The Slants,” a derogatory term for people of Asian descent. Two years later, the Supreme Court similarly held in Iancu v. Brunetti, 139 S. Ct. 2294, 2301 (2019), where the USPTO had rejected an artist’s application to register the mark “FUCT” (according to the registrant, pronounced as four letters), and held that the “immoral or scandalous” bar to trademark registration is overbroad and also violated the First Amendment. Most recently, on June 5, 2023, the Supreme Court announced that it would hear arguments in the “Trump Too Small” case where the USTPO declined to register a trademark criticizing former President Donald Trump. The outcome of this case could further tip the scales towards more permissive use of names and brands that are offensive to certain constituencies.
Additionally, the USPTO maintains a voluntary tribal insignia database, which aims to protect the cultural properties of Native American tribes. This can be a useful resource for schools, even when a trademark application is not contemplated, to guide decision makers in determining whether a current or proposed insignia or logo falsely suggests a connection to a participating Native American tribe.
In 2014, a group of Native Americans successfully cancelled the registration of six trademarks of the Washington Redskins bearing the team’s name and logo, arguing that the trademarks violated the disparagement clause. While the appeal was pending, the Supreme Court issued its opinion in Matal v. Tam, and the Fourth Circuit Court of Appeals vacated the district court’s order cancelling the team’s trademark registration. Pro-Football, Inc. v. Blackhorse, 709 F. App'x 182, 183 (4th Cir. 2018).
For a compelling recounting of the history behind disparaging Native American words, names and gestures and the failed efforts of Native American advocates and their allies to cancel the registrations, see the documentary Imagining the Indian: The Fight Against Native American Mascoting, for which Lutzker & Lutzker provided copyright counsel.
Rebranding 101
While the issues are more complicated in the professional sports world, there are lessons to be learned from their experiences with rebranding. The Atlanta Braves and their “tomahawk chop” have ignored the public scrutiny and continue their racist and offensive traditions. Major League Baseball’s Cleveland Guardians, formerly known as the Cleveland Indians, quickly rolled out their new name after finally acquiescing in 2020 to increased pressure from sponsors and concerned citizens. In contrast, The Washington NFL team took 18 months to announce its new name after input was solicited from focus groups and more than 40,000 fan submissions. The team’s marketing and legal teams, designers from Nike and the NFL worked to make the final rebranding decision. Despite months of sifting through trademark registrations, the USPTO denied the Commanders’ trademark in May 2023, citing a “likelihood of confusion” with other similar marks. The team has three months to respond to the USPTO.
The process of selecting a new name must be carefully considered to provide affected communities with a sense of ownership and engagement in the renaming process, enhance the existing equity and move the institution forward. On a practical level, schools should consider whether the proposed name is confusingly similar to others and whether it is equally viable for a gymnasium floor, athletic team uniforms and other school spirit branded items, as well as social media handles and domain names. Maintaining existing colors and similar fonts to the prior branding is also a practical way to provide continuity.
Hopefully, more change is on the horizon, giving Native Americans and the country some sense of relief in this long and troubling chapter in American history. We will continue to monitor the legal and policy issues surrounding Native American appropriation in both K-12 and post-secondary schools.
The authors wish to acknowledge the work of Punita Patel, who contributed to prior drafts of this Insight and the tireless advocacy of the National Congress of American Indians (“NCAI”).