Is the Use of 'Redskins' a Hate Crime?

Peter d’Errico

Many critics of a certain football team's use of the "R" word concede that there is no "free speech" issue. Even the American Civil Liberties Union (ACLU), harsh critic of the team's name—calling it a "vile name"—maintains its equally staunch support of free speech: "The owner of the Washington Redskins has a right to call his team anything he wants."

Free speech protection does not solve the problems facing the team owner, as demonstrated by a different effort to persuade the U.S. Trademark office to revoke the trademarked status of "Washington Redskins." The group behind the effort cites the U.S. law that prohibits trademarks that involve disparaging, scandalous, contemptuous or disreputable names. Revocation would undermine the team's marketing program for sports apparel and memorabilia.

The trademark challenge shows serious potential. On March 17, 2014, the Patent and Trademark Office officially refused to register the trademark "Washington Redskin Potatoes," on the ground that "the applied-for mark includes matter which may disparage or bring into contempt or disrepute persons, institutions, beliefs, or national symbols." That denial has implications for revoking trademark protection for the team name.

Denial of a trademark is not the same as prohibiting a name, and it does not eliminate the free speech issue; but it does damage the commercial potential for sales of a product. It removes the easiest method of protecting a brand against competition. In other words, denial of a trademark affects a company's bottom line. Thus, the proponents of trademark revocation are deploying an economic as well as a legal approach.

Some critics of the "R" word bypass both the free speech and trademark issues and focus on the potential for a criminal law "hate crime" approach, based on the history of wrongs associated with the word. The strongest statement of this approach starts with the fact that the word perpetuates 500 years of hate crimes. There's even a YouTube video, "Redskins-A 500 Year Hate Crime."

U.S. law defines "hate crime" as follows: "crimes that manifest evidence of prejudice based on race, religion, sexual orientation, or ethnicity, including where appropriate the crimes of murder, non-negligent manslaughter; forcible rape; aggravated assault, simple assault, intimidation; arson; and destruction, damage or vandalism of property."

Although the definition explicitly refers to "prejudice based on…ethnicity," the law does not seem to apply to commercial use of a name. Regardless of how derogatory the name may be, criminal prosecution would have to identify an associated crime from among those listed. Even a broader reading of the law that viewed the list as not exclusive would have to identify a crime of some sort that was committed, facilitated, or precipitated by the name. Even then, there would be the question whether the user of the name had committed the crime.

We know in the course of U.S. history that users of "redskins" as a name have often committed crimes—including all the ones listed in the hate crimes law—against the Native peoples to whom they applied the name. In fact, it is this long history of crimes against "redskins" that makes so obvious the ridiculousness of the notion that the name "honors" Native peoples.

Native peoples continue to confront hostility today, sometimes rhetorical, sometimes also violent. The high suicide rate among American Indian children is one effect of historical and contemporary hatred and hostility directed at Indians. As former Senator Byron Dorgan, put it: "Indian youth suicide cannot be looked at in a historical vacuum. [It is tied to a] trail of broken promises to American Indians."

A National Congress of American Indians (NCAI) report focuses on the "R word" mascot as an extension of historical anti-Indian violence. Another NCAI statistical report on violence against Native women underscores the historical pattern: "Native women on tribal lands lack the most government protections from the threat of violence against them."

So, the use of an anti-Indian epithet may not technically be a "hate crime," but it is hateful and damaging. In conjunction with other supposedly "positive" commercial caricatures, it is part of an overall racist attitude toward Native peoples. As one commentator put it: "American Indians have been so marginalized…that all we know of them mostly consists of racist stereotypes and animated Disney characters. And when someone says there’s something wrong with these images, we think, 'What’s the problem?'"

The problem is that the problem is not understood. Once again, the Indians' burden is to educate the white man.

Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on indigenous issues.

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hesutu's picture
Evidence shows clearly that sports mascots based on people's groups, such as our own, are damaging to said groups. It is also known that these representations actually improve the self esteem of dominant groups who view said mascots related to groups they are oppressing or whose lands they are occupying. Thus said mascots provide a benefit to dominant groups, at the cost of damage to the caricatured group. This benefit may explain the reluctance by dominant groups to eliminate them. The quest to eliminate them and educate people what the dynamics are of this system is reasonable and is a good cause. Mascots should go. Furthermore, it is outrageous and unsettling that sports franchises permit racial stereotypes and appropriations in fan dress, and even allow things such as fans to show up at games with representations of severed heads of our people which they wave around to the excited crowds, along with chants calling for the death and destruction and harm to our peoples groups. This is not all in good fun, it is obviously a hate crime, and one that the sports franchises willingly participate in as it draws crowds, brings in attention and publicity, and brings various benefits to these franchises. Opposition to these mascots is possible without even addressing the specific terminology used. In the case of redskins, as well as red people, red men, red indians and the popular contemporary endonym "skins" we know as an established and well researched historical fact that this term originated as a term we used to describe ourselves and all indigenous peoples of turtle island generically, without reference to specific nation. This term is even related to terms used in some of our languages which reference the concept of redness in relation to turtle island peoples or indians. It is a historical and well documented fact that many white societies and governments over the years issued specific bounties paid for the brutal and gruesome murder of indigenous turtle islander men (Indian), women and children, with head prices on each. Often these bounties for murdering innocent Indian people could only be collected upon presentation of gruesome and horrific war trophies, in particular the skin from the head of the innocent victims, commonly referred to as a scalp. Bounties were paid on the genocidal murder of Indian families from the east coast out to California, and down to Mexico as well. This practice is clearly and obviously illegal, a crime against humanity, and genocide. Many nations groups such as California Indians were made completely extinct by the various intentional genocide practices committed by white settlers and colonists. Justice, apologies or even mild regret for these practices are practically nonexistent. We are told it all happened long ago and we should "get over it". This is infuriating and outrageous. These crimes are outrageous and harmful. The evil that was done is so extensive and vast and so much of white society to this day continues to benefit from the resources and land that were stolen and peoples that were murdered and cultures of ours that were utterly extinguished. The repercussions and damage of these actions continue to this very day and have not been resolved or even addressed in any manner whatsoever, not even to be taught in schools as an example of genocide. These are serious and sacred matters. It is important to get the facts correct and to communicate and teach the crimes that occurred. Unfortunately, and contrary to beliefs held and promoted by some individuals, it is a historical fact that this term did not originate in references to skinning people. I myself am a red man, a red skin, a skin, a red indian. I am not ashamed of what I am. I do not accept as bad any of these neutral terms which myself and my ancestors have used for ourselves. I reject the conversion of neutral terms into bad ones. I reject the claims that my use of neutral words to describe myself is a hate crime against myself. I reject false claims about the past. It is not necessary to exaggerate or make wrong claims in order to make the argument against mascots. If redskins must means the n word because that is the only way to end mascots, will chiefs and indians and reds be said to mean the n word next? Or will other mascots be unassailable? It is a grave error to continue down this path of attacking and making false historical claims against words many of us have used proudly for ourselves, which originate with our own thinking about ourselves, and which are more connected to some of our actual concepts of identity and views of ourselves than words given to us by others. It is good to follow the red path. It is good to be a red man. It is good to say "God is red". I am not ashamed to be red and will never be ashamed to be red.