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Pro Bono Center Screens Imagining the Indian, a Revealing Look at Native Americans’ Depiction in Sports

November 21, 2023

By Jeremy Conrad

Imagining the Indian: The Fight Against Native American Mascoting,Many sports mascots, logos, and team names continue to employ racist caricatures and slurs associated with Native Americans, despite longstanding campaigns for their elimination. On November 15 the D.C. Bar Pro Bono Center hosted a screening of the film Imagining the Indian: The Fight Against Native American Mascoting, which charts efforts to end the misappropriation of Native culture in sports.

“This film examines what is at stake for communities that are demeaned by offensive imagery and the psychological effects that follow,” Pro Bono Center Executive Director Kelli Neptune said. “As America grapples with the questions of racial injustice, this award-winning film provides a vital lens on cultural stereotypes and misappropriation affecting Native American communities. Through this film, we seek not only to educate but also to inspire dialogue that lasts well beyond today’s event.”

The screening was attended by Aviva Kempner, founder and executive director of Ciesla Foundation, which produced the film. Kempner also codirected the award-winning documentary.

“I grew up a middle-class Jewish kid with European parents. I was born in Europe and grew up in Detroit and, until the late ’60s, I didn’t know any Native Americans, except for the Hollywood images. It wasn’t until I went to New Mexico … and met Navajo activists … It was like a whole new world to me,” said Kempner.

Washington, D.C., figures prominently in Kempner’s work, which traces the legal battles surrounding the Redskins moniker for the city’s football team. After many years of complaints and protests, a group of activists led by the film’s de facto protagonist, Suzan Shown Harjo, petitioned the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) for the cancellation of the Washington Redskins’ trademark in 1992. Harjo argued that the trademark was ineligible for protection under the Lanham Act’s disparagement clause, which prohibits trademarks 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.”

The suit resulted in the 1999 cancellation of six Washington Redskins trademarks, including those for its name and helmet logo. Pro-Football, Inc. disputed the holding with the U.S. District Court for the District of Columbia, which reversed TTAB’s decision for insufficient evidence of disparagement and because the doctrine of laches applied since the team registered its trademark in 1967. By failing to sue earlier, the plaintiffs had effectively slept on their rights and lost their claim.

While Harjo v. Pro-Football, Inc. was on appeal to the D.C. Circuit, another group of Native Americans filed Blackhorse v. Pro-Football, Inc. in 2006. In this case, the petitioners arguably escaped the laches issue because their claim was raised in closer proximity to the harm — their offense at the mark’s use. Blackhorse was suspended until the Harjo litigation concluded in 2009. The case resulted in the 2014 cancellation of six Redskins trademarks, and the decision was affirmed on appeal.

However, in 2017 the U.S. Supreme Court heard Matal v. Tam, a case in which members of an Asian American rock band called The Slants argued that the denial of their trademark application on the basis of the disparagement clause was a violation of their First Amendment rights. The ruling, which found for the band, effectively rendered the Blackhorse decision moot.

In the end, it was social and economic pressure that resulted in the decision to abandon the Redskins team name. FedEx, the naming rights holder of the team’s field, threatened to sever its relationship with the team if it did not change its name. The team assumed its current name, the Washington Commanders, in 2022.

In the Q&A following the film’s screening, D.C. Bar Pro Bono Center staff attorney Jenadee Nanini, a member of the Blackfeet Nation, highlighted the depiction of contemporary Native Americans. “A lot of people have a perception about what a Native American looks like, or is, and don’t realize that we are lawyers and teachers and painters and professors,” she said. “The difficulty is that when you have those mascots, you learn to just accept it, or start to feel like that is what people see you as.”

Neptune said she was moved and inspired by the film. “I see pro bono volunteerism as activism. Activism against racism and social injustices, activism against mis- and disinformation,” she said, going on to ask Kempner what action lawyers could take to help.

Kempner proposed collaborative efforts in support of legal action by local activists, saying that her own experience in legal clinical environments had impressed upon her their effectiveness. “There are still 2,000 teams that have what we regard as insidious names,” Kempner said. “Changing that is up to local communities, and it’s up to you [the audience].”

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