Beyond Trademark: The Washington Redskins Case and the Search For Dignity

In her pioneering book, We Want What’s Ours: Learning from South Africa’s Land Restitution Program, Professor Bernadette Atuahene employs a detailed ethnographic study of South Africa’s land restitution program to develop the concept of a dignity taking. This article extends the application of Atuahene’s theory to the taking of intangible property arguing that the misappropriation of cultural identity and imagery for use as a federal trademark can also constitute a dignity taking in certain cases. Perhaps no effort has received more public attention than the longstanding battle over the Washington NFL football team’s name and its federally registered “Redskins” trademarks. The team’s trademarks have been the subject of organized protest and litigation for decades. The Supreme Court recently invalidated the trademark law’s prohibition on disparaging marks in another case leading to the dismissal of the longstanding challenge by the Native petitioners. This article looks beyond the challenge under federal trademark laws and explores whether the appropriation and commodification of the racial slur “redskins” and associated cultural imagery by the continued federal registration of the Washington team’s trademarks should be deemed a dignity taking. This article first argues that the continued federal registration and use of these trademarks by the team constitutes both a direct and indirect taking of property sanctioned by the state. The federal registration sanctions a misappropriation of the identity, cultural rights, and personhood of Native people. This article then argues that the federal property right granted as a result of the taking of this racial slur and its associated cultural imagery has led to cognizable harms to the dispossessed Native population. The article uses first-person narratives to demonstrate that Native self-esteem, self-confidence, and self-identity are degraded by the federally sanctioned misappropriation of these names and mascots. The pervasive use and commodification of this particular slur fosters an environment causing the Native community to experience forms of infantilization and dehumanization. Atuahene’s dignity takings framework provides a useful lens and a jumping-off point to further theorize the fundamental right of dignity, this particular takings controversy and other disputes involving harms caused by the misappropriation of both tangible and intangible forms of cultural property