Commentary Magazine


Topic: Native Americans

The Redskins and the Role of Government

Yesterday’s ruling by the Trademark Trial and Appeal Board on a suit challenging the right of the Washington Redskins football team to protect their trademark is being hailed as a turning point in the battle to force the team and its stubborn owner to give up the fight to keep the controversial name. An appeal of the 2-1 vote will probably take years to adjudicate and even if it is eventually upheld, the decision doesn’t force the National Football League team to stop using its name. Nor would it prevent the team from going to court to protect its rights or to sue counterfeiters since it could do so under common law rights that are not affected by the ruling. But the decision does create more pressure on Redskins owner Daniel Snyder to back down from his vow to retreat in the face of protests from Native Americans and prominent politicians (up to and including the president of the United States) who want him to switch to a moniker that is not generally understood to be a slur.

This controversy has become more a war of wills than a debate about the merit of Snyder’s claim that the term “redskins” is actually one that honors Native Americans rather than disparaging them. The main reason for that is that it is difficult, if not impossible, to argue that Snyder is right about the positive nature of the word “redskins.” Unlike other Indian-related names like “Braves” or “Chiefs” that are used by other professional sports teams, “Redskins” is not a word that one would naturally associate with honor, bravery, courage, or ferocity in battle. Snyder’s defense is pure baloney. Though for those who have no historical memory it is just the name of the Washington football team, redskins is an antiquated term of abuse that references the skin color of Native Americans. As such, it is the sort of label that is rightly consigned to the dustbin of history as Americans have discarded the routine racism that was once commonplace in our popular culture. Like President Obama, I, too, were I rich enough to be a team owner, would not want one with such a name.

The arguments about this have largely centered on whether Snyder has a leg to stand on when he denies Redskins is a slur. But the question of whether the resources of the federal government ought to be employed to aid those seeking to force Snyder to give it up is an entirely different one from that of whether the team’s critics are right about its unsavory nature. Thus, rather than stand his ground on the farcical notion that the name is neutral or a positive statement about Native Americans, Snyder’s best defense may be one that focuses on whether the government has any right to meddle with his business.

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Yesterday’s ruling by the Trademark Trial and Appeal Board on a suit challenging the right of the Washington Redskins football team to protect their trademark is being hailed as a turning point in the battle to force the team and its stubborn owner to give up the fight to keep the controversial name. An appeal of the 2-1 vote will probably take years to adjudicate and even if it is eventually upheld, the decision doesn’t force the National Football League team to stop using its name. Nor would it prevent the team from going to court to protect its rights or to sue counterfeiters since it could do so under common law rights that are not affected by the ruling. But the decision does create more pressure on Redskins owner Daniel Snyder to back down from his vow to retreat in the face of protests from Native Americans and prominent politicians (up to and including the president of the United States) who want him to switch to a moniker that is not generally understood to be a slur.

This controversy has become more a war of wills than a debate about the merit of Snyder’s claim that the term “redskins” is actually one that honors Native Americans rather than disparaging them. The main reason for that is that it is difficult, if not impossible, to argue that Snyder is right about the positive nature of the word “redskins.” Unlike other Indian-related names like “Braves” or “Chiefs” that are used by other professional sports teams, “Redskins” is not a word that one would naturally associate with honor, bravery, courage, or ferocity in battle. Snyder’s defense is pure baloney. Though for those who have no historical memory it is just the name of the Washington football team, redskins is an antiquated term of abuse that references the skin color of Native Americans. As such, it is the sort of label that is rightly consigned to the dustbin of history as Americans have discarded the routine racism that was once commonplace in our popular culture. Like President Obama, I, too, were I rich enough to be a team owner, would not want one with such a name.

The arguments about this have largely centered on whether Snyder has a leg to stand on when he denies Redskins is a slur. But the question of whether the resources of the federal government ought to be employed to aid those seeking to force Snyder to give it up is an entirely different one from that of whether the team’s critics are right about its unsavory nature. Thus, rather than stand his ground on the farcical notion that the name is neutral or a positive statement about Native Americans, Snyder’s best defense may be one that focuses on whether the government has any right to meddle with his business.

The legal grounds on which yesterday’s ruling was made centers on a provision of the Lanham Act which governs trademark protection that allows third parties who believe a copyrighted name is scandalous to the general public or disparaging to particular groups. Those Native Americans who joined in the challenge alleged that Redskins does exactly that and a majority of the board agreed with them. It is likely that most Americans, outside of Redskins fans who wish to preserve the 75-year-old name of their team, probably concur.

Even if their appeal fails the team could still defend its trademark against those who sell bootleg or counterfeit merchandise. But, as many observers have noted, the Redskins are marketing partners with all but one other NFL team (the Dallas Cowboys have their own separate deal); the ruling may generate pressure on Snyder to sell from his fellow owners and the NFL itself. Given that the president and most Democratic members of the U.S. Senate are now on record demanding a change, it’s not clear that even the obdurate Snyder has the intestinal fortitude to stick to his vow never to budge on it.

But while it is easy to argue that it would be appropriate for Snyder to bend to public opinion, the involvement in the government in this debate is a very different matter. Although Redskins critics seem to have the law on their side about the trademark, it is worth asking whether a strict enforcement of that standard about scandalous or disparaging names is possible or desirable. Though the language of the law appears to be clear, is anyone really comfortable with a situation in which an appointed panel sitting in Washington has the right to censor trademarked names in this manner? If “Redskins” doesn’t meet the panel’s smell test, surely many other trademarks which have their roots in the American past could also be challenged. Just as Snyder’s team is put in the dock in the court of public opinion, why wouldn’t the manufacturers of Aunt Jemima products also be put there since surely their Gone With the Wind-style logo, redolent of slavery and the most shameful chapters of American history, could be deemed offensive.

Snyder’s sentiments resonate with the fans of his team specifically because he is seeking to preserve not just his brand but also the memories of the team’s supporters. Though sports teams take on the character of the city or region in which they play and are treated as if they are public property, they are nothing of the kind. An NFL franchise is, in that sense, no different from any other business. If the fans of the most popular sport—at least in terms of television ratings and merchandise sales—are not troubled by the team name, it is difficult to see why the government ought to intervene. If, however, the culture changes to the point where even an NFL team must bow to public opinion, then that is something that the market will demonstrate. If Americans feared to wear a Redskins jersey lest they be branded as racists, then surely Snyder would have to give up.

Though I sympathize with those who would like the team name to change, forcing this issue via judicial action or legislation would involve the government in something that is none of their affair. It is the market that should dictate this decision, not our political elites. Americans need their government to protect their liberty, to provide for the common defense and to do those things that cannot otherwise be done for the general welfare of society. But it does not need a government to decide on the name of a football team.

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Harvard’s “First Woman of Color”

Politico reports an update on the Elizabeth Warren ancestry story that just won’t die:

Elizabeth Warren has pushed back hard on questions about a Harvard Crimson piece in 1996 that described her as Native American, saying she had no idea the school where she taught law was billing her that way and saying it never came up during her hiring a year earlier, which others have backed up.

But a 1997 Fordham Law Review piece described her as Harvard Law School’s “first woman of color,” based, according to the notes at the bottom of the story, on a “telephone interview with Michael Chmura, News Director, Harvard Law (Aug. 6, 1996).”

The mention was in the middle of a lengthy and heavily-annotated Fordham piece on diversity and affirmative action and women. The title of the piece, by Laura Padilla, was “Intersectionality and positionality: Situating women of color in the affirmative action dialogue.”

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Politico reports an update on the Elizabeth Warren ancestry story that just won’t die:

Elizabeth Warren has pushed back hard on questions about a Harvard Crimson piece in 1996 that described her as Native American, saying she had no idea the school where she taught law was billing her that way and saying it never came up during her hiring a year earlier, which others have backed up.

But a 1997 Fordham Law Review piece described her as Harvard Law School’s “first woman of color,” based, according to the notes at the bottom of the story, on a “telephone interview with Michael Chmura, News Director, Harvard Law (Aug. 6, 1996).”

The mention was in the middle of a lengthy and heavily-annotated Fordham piece on diversity and affirmative action and women. The title of the piece, by Laura Padilla, was “Intersectionality and positionality: Situating women of color in the affirmative action dialogue.”

I’m not sure who this looks worse for: Harvard Law or Elizabeth Warren. Does Warren still hold the law school’s distinction as its “first woman of color”? Apparently not. That label has since been granted to Lani Guinier, President Clinton’s controversial assistant attorney general nominee, who was tapped for a tenured Harvard Law position in 1998.

So what happened between the years of 1996 and 1998? Why did the school decide it no longer considered Warren its first “woman of color”? Was it because, as the New England Historical Genealogical Society announced this week, there appears to be no proof of Warren’s claims she is 1/32 Cherokee?

Sen. Scott Brown has continued to call on Harvard to release Warren’s hiring records. Based on the Fordham article, it seems the law school has some responsibility to clear up – for history’s sake – the confusion over who it hired as its first “woman of color.”

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Warren’s Indian Tales Help Turn Mass. Race Into Town vs. Gown

Contentions has already explored the contradictions at the heart of Elizabeth Warren’s use of her slim ties to a Native American ancestor to portray herself as a member of a minority group at Harvard University Law School. The Democratic candidate has become something of a poster child for the excesses of the world of affirmative action, but the story got a bit more damaging today when the Boston Herald reported that in addition to using her status as a 1/32 Cherokee Indian, she also went native during her time at the University of Pennsylvania.

The Herald discovered that Penn (where she worked from 1987 to 1994), listed her as a minority in a “Minority Equity Report.” Warren’s office is probably right to say that her reputation was good enough in the world of liberal jurisprudence to have earned her a job at prestigious universities. But the revelation that she was touted as a minority hire at yet another school makes her claim that she was unaware of her status as an affirmative action case that much less credible. When added to the fact that she admits listing herself as a minority in the Association of American Law Schools directory for a decade (supposedly in order to meet “other Native Americans”), this new information gives the story new life.

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Contentions has already explored the contradictions at the heart of Elizabeth Warren’s use of her slim ties to a Native American ancestor to portray herself as a member of a minority group at Harvard University Law School. The Democratic candidate has become something of a poster child for the excesses of the world of affirmative action, but the story got a bit more damaging today when the Boston Herald reported that in addition to using her status as a 1/32 Cherokee Indian, she also went native during her time at the University of Pennsylvania.

The Herald discovered that Penn (where she worked from 1987 to 1994), listed her as a minority in a “Minority Equity Report.” Warren’s office is probably right to say that her reputation was good enough in the world of liberal jurisprudence to have earned her a job at prestigious universities. But the revelation that she was touted as a minority hire at yet another school makes her claim that she was unaware of her status as an affirmative action case that much less credible. When added to the fact that she admits listing herself as a minority in the Association of American Law Schools directory for a decade (supposedly in order to meet “other Native Americans”), this new information gives the story new life.

Far from a distraction from more important issues, the WASPy Warren’s use of “family lore” to get a leg up as a faux minority at some of the country’s most prestigious institutions speaks volumes about the cynical way liberals think about affirmation action and their thinly-veiled contempt for real minorities.

The bad news for Warren is not just that she has been taken off message for weeks dealing with a campaign hiccup that no one could have foreseen. It is that she has been effectively branded as a fake when it was her authenticity as a tough-talking advocate of liberalism which launched her political career.

Even worse, the affirmative action fraud reminds Massachusetts voters of everything they hate about Harvard elites. Though the Bay State is reliably liberal and Democratic, it is a mistake to think most of its citizens worship at the altar of Harvard. Warren needed her race against incumbent Scott Brown to be one of liberal versus conservative. Instead, the Cherokee story will help him frame it as one of town versus gown. And that is a contest that gown will lose every time.

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Another Warren Bizarre Plot Twist

Just when you thought the Elizabeth Warren controversy couldn’t get any more disastrous, Breitbart’s Michael Patrick Leahy reports on yet another bizarre plot twist:

For over a quarter of a century, Elizabeth Warren has described herself as a Native American. When recently asked to provide evidence of her ancestry, she pointed to an unsubstantiated claim on an 1894 Oklahoma Territory marriage license application by her great-great grand uncle William J. Crawford that his mother, O.C. Sarah Smith Crawford, Ms. Warren’s great-great-great grandmother, was a Cherokee. …

But the most stunning discovery about the life of O.C. Sarah Smith Crawford is that her husband, Ms. Warren’s great-great-great grandfather, was apparently a member of the Tennessee Militia who rounded up Cherokees from their family homes in the Southeastern United States and herded them into government-built stockades in what was then called Ross’s Landing (now Chattanooga), Tennessee—the point of origin for the horrific Trail of Tears, which began in January 1837.

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Just when you thought the Elizabeth Warren controversy couldn’t get any more disastrous, Breitbart’s Michael Patrick Leahy reports on yet another bizarre plot twist:

For over a quarter of a century, Elizabeth Warren has described herself as a Native American. When recently asked to provide evidence of her ancestry, she pointed to an unsubstantiated claim on an 1894 Oklahoma Territory marriage license application by her great-great grand uncle William J. Crawford that his mother, O.C. Sarah Smith Crawford, Ms. Warren’s great-great-great grandmother, was a Cherokee. …

But the most stunning discovery about the life of O.C. Sarah Smith Crawford is that her husband, Ms. Warren’s great-great-great grandfather, was apparently a member of the Tennessee Militia who rounded up Cherokees from their family homes in the Southeastern United States and herded them into government-built stockades in what was then called Ross’s Landing (now Chattanooga), Tennessee—the point of origin for the horrific Trail of Tears, which began in January 1837.

Notably, Warren hasn’t denied the story, instead dismissing it as a distraction and “politics as usual.” If she was actually aware of this ancestry beforehand, it might explain her frenzied, stumbling response to the controversy from the beginning. With a bombshell like that dangling over her head, it’s no wonder she was evasive about her history.

At the very least, the development will help keep the controversy alive, and increase pressure on Warren to release more information about her minority status claims. Sen. Scott Brown is now calling on Warren to release her law school applications:

“Serious questions have been raised about the legitimacy of Elizabeth Warren’s claims to Native American ancestry and whether it was appropriate for her to assume minority status as a college professor,” the statement said.

“The best way to satisfy these questions is for Elizabeth Warren to authorize the release of her law school applications and all personnel files from the various universities where she has taught.”

The death-by-a-thousand-cuts scandal harkens back to Attorney General Martha Coakley’s downfall when she ran against Brown for Senate in 2010. In many senses, Warren is a stronger candidate than Coakley was. She’s been able to build more of a national profile and is considered a rising progressive star, whereas Coakley was never really able to energize the liberal base. But Coakley’s demise also wasn’t due to any overwhelming flaws as much as it was due to a number of small-scale mishaps that played into the sense she was an out-of-touch elitist who didn’t want to smudge her manicured shaking hands outside Fenway Park.

The growing narrative about Warren, on the other hand, is that she’s an ivory tower liberal with some shady character flaws. This latest Trail of Tears development also makes her something of a punchline, similar to how Coakley became a running joke after she cluelessly claimed former Red Sox pitcher and Brown supporter Curt Schilling was a Yankee fan. While the Coakley’s meltdown happened shortly before Election Day, Warren still has time to repair her image. But her window of opportunity is quickly closing, and the drip-drip of details like this will make it difficult for her to turn things around.

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