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The raving thoughts of a misanthropic academic

September 23, 2013

What's in a Name? The Redskins Mascot Controversy


I've resisted weighing in on the latest round of the Native American/American Indian mascots controversy. When such debates rear their heads, the conversation is rarely constructive. For example,  of late, Washington Redskins owner Dan Snyder has been called both a racist and a bigot - and these were just letters from family.

(I kid. I kid.)

The current controversy actually has its genesis in a bill that was introduced in the House of Representatives this past March, long after the Redskins were unceremoniously bounced from the playoffs by the Seattle Seahawks. In legislation that was all but doomed to fail, Washington, DC Delegate Eleanor Holmes (D-DC)  drafted legislation that would effectively void any trademarks containing the term "redskin/s." Naturally, the bill would have a significant impact on the Redskins franchise, its revenues, branding, and merchandise.

Fast forward to this past May, when ten members of Congress sent a letter to  Washington Redskins' owner Dan Snyder demanding that the team change its name. Consider also that the least effective sentence in the english language always begins with the phrase "members of Congress sent a letter." Even so, the brouhaha persisted, apparently undaunted by such realist frivolities. And, now, everyone from NFL Commissioner Roger Goodell to Rush Limbaugh has had their say. Most recently, ESPN's Rick Reilly threw gasoline on the flames by sharing a few thoughts on the controversy in his weekly column. After arguing that the majority of the opposition to Indian mascots comes from "white America" Reilly concludes:
In fact, ESPN and many other media companies cover the Notre Dame Fighting Irish, the Cleveland Indians and the Atlanta Braves without a single searing search of their social conscience.

Doesn't matter. The 81-year-old Washington Redskins name is falling, and everybody better get out of the way. For the majority of Native Americans who don't care, we'll care for them. For the Native Americans who haven't asked for help, we're glad to give it to them.

Trust us. We know what's best. We'll take this away for your own good, and put up barriers that protect you from ever being harmed again.

Kind of like a reservation.

[Link]

So, opposing a team's mascot is analogous to putting Indians on reservations? Um, got it...

Cutting through the fog, it's important to remember that such issues turn, as they always have, on the situation of the particular team and its relationship with American Indian tribes. The trouble when advocates claim a broad mandate regarding the sensitivity of a term or phrase is that their mandate is rarely as large as they perceive it to be.  As of today, there are 566 Federally Recognized Tribes in the United States scattered across the whole of the contiguous 48 states. Also as of today, there has been precious little effort to determine what position each tribe takes regarding the Redskins mascot. Any party claiming a mandate or mantle of authority to facilitate change on behalf of American Indians en masse is simply misguided. While some tribes have signaled their opposition, the perspective of a few tribes is hardly representative of the whole of Indian Country.

On the other hand, the conversation being raised by opponents of the mascot is an important one for America to have. As a Nation, we tend to handle race relations about as well as we handle Middle Eastern crises and occupations, not very well. (Here's looking at you Syria.) The fact is, the status of American Indians within the legal framework of the United States has long been a point of internal and Constitutional tension. As a society (and certainly our Government), we Americans don't really know quite what to do with Indian tribes. Whereas the Civil Rights movement was about incorporating disempowered minorities into the American social fabric, what American Indians advocate for in pursuing policies of tribal self-determination and sovereignty is one of measured separatism. In other words, they seek to be left alone so that they can govern their peoples, lands and resources. Naturally, a very real disconnect in the conversation results because matters of racial stereotype are almost perpetually conflated with matters of tribal governance.

For the current debacle, I don't see a tidy resolution to the situation. The Federal Courts have already concluded that the mascot name is not so offensive as to invalidate the Redskins trademark - and even if it is, the matter has lain dormant so long as to make the allegation moot. Short of pursuing abject censorship along the lines of Delegate Holmes, I don't see a legal solution to the quagmire. Ironically, this would suggest that the groups opposed to the mascot are following exactly the proper course, seeking to influence public opinion and persuade the whole of society that the name is offensive and should be scrapped.

Personally, I think tribal advocates are playing small ball by focusing on the mascot issue. There are real enemies to tribalism in the United States and given the pecking order of threats, the name of a mediocre football team just isn't worth the energy being expended. Even if I were a Washington Redskins fan, I can't see the mascot issue being a bigger concern than the Redskins' 0-3 start, and the inability of a much lauded second-year quarterback to deliver.

Of course, as a Dallas Cowboys fan, I don't really give a damn. The team from Washington can be the Redskins or the Lobbyists and all will be right with the world if the Cowboys come away with a win.
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September 12, 2013

Thoughts from the Waitangi Tribunal


 The Aramiro marae located between Hamilton and Raglan, New Zealand is a peaceful place. Surrounded by verdant hills, and craggy terrain, the marae structure itself is unprepossessing. In many ways, the humble building mirrors the selfless values of an ancient people that have long struggled to survive. Accordingly, the world seems very far removed here. The drums of war in Syria and frightful memories of terrorists attacks in a bustling city are all distant points on the horizon in so quiet a vale.


What brought me to this sleepy corner of New Zealand was a hearing of the Waitangi Tribunal. The Tribunal is a novel institution among Nations with significant populations of Indigenous peoples. For New Zealand, the Tribunal is the judicial body tasked with hearing Māori claims alleging governmental violations of the 1840 Treaty of Waitangi. The Treaty of Waitangi is the agreement signed between Māori and the British ceding   The following is a brief description from the Waitangi Tribunal website:

The Waitangi Tribunal was established in 1975 by the Treaty of Waitangi Act 1975. The Tribunal is a permanent commission of inquiry charged with making recommendations on claims brought by Māori  relating to actions or omissions of the Crown that breach the promises made in the Treaty of Waitangi.

[Link]

For the Māori hapū or subtribes that participate in the process, the route to redress and the resolution of their claims is lengthy. It can take years to get a hearing before the Tribunal and years after the hearing to get an adjudication of a final outcome. The process may seem impractical given that there are quicker routes to recovery, including direct negotiations with the Crown. But the speedy benefits of one do not produce the same meticulous documentary process of the Tribunal proceedings. Whereas Crown negotiations get the money to the iwi faster, it does not necessarily record the painful history behind the dollars or provide closure. The Waitangi Tribunal attempts to do both.


One thing about the Tribunal proceedings that struck me as a Western, legal academic is how relaxed the rule of evidence are. The morning of the hearing, organized chaos ensued behind and scenes. My friends and hosts, the Greensil family, were feverishly putting the final touches on evidentiary briefs and guitar selections alike. The guitar numbers which had lyrics in English and Te Reo (Māori) were brief summaries of their family lore, offering their perspective of the Māori land confiscations that permeated New Zealand from the 1860s through the formation of the Waitangi Tribunal itself in 1975. Decades, even centuries of displacement was finally coming to a head and, to them, a musical expression of the moment seemed a fine way to present testimony of their family's history.


What was remarkable in witnessing the scene, was the faith the participants had in the process. In America, I'm often cynical and skeptical about the ability of our courts to be impartial and to administer justice in a fair manner. But in the Waitangi Tribunal proceedings, claimants presented their interpretation of events before the Court without a hint of cynicism, as if expecting a fair hearing and an impartial outcome from the Judges rather than merely hoping for one. For my friends, the testimony marked the culmination of a life's work for their family matron - an attorney trained right here at Waikato University Law School. This embrace of the process and the knowledge of how long it took the parties to reach this point made the event exceedingly beautiful in its own way.


My friends hail from Whaingaroa, an area of New Zealand containing the town of Raglan, a surfing haven famous for its black sands and iconic surf breaks. The town was featured in the seminal surfing movie The Endless Summer in which famous surfers follow the summer season around the world as the seasons change. Their iwi has long maintained a political separateness from the Tainui Iwi Confederation, a mega-iwi that seems to dominate much of Māori political affairs here on New Zealand's North Island. Their district is said to always have been a separate political entity, giving the hapū in the area a unique, spiritual obligation to tend to the lands in perpetuity. Having been to Raglan a few times now, it is difficult to imagine a more sublime place over which to exercise such stewardship.


After the first few testimonies, the hearing gets a bit tedious, soldiering on through the morning, afternoon and into the early evening. Witness after witness presents the essence of their briefs, which have all been submitted to the Tribunal in advance. The presentations are supposed to be kept within certain time constraints but these are loosely enforced. The Tribunal seems to prefer allowing claimants to tell their story, rather than rigidly enforcing a schedule.


The pitfalls of such loose evidentiary rules and relaxed time constraints are obvious. The quality of testimony presented to the Tribunal varies widely. Some evidence, such as that presented by my friends, is well documented, packaged in quite professional briefs that have all been vetted by a small phalanx of attorneys. By contrast, testimony from others explored the finer points of possum eradication and proper techniques for re-seeding cockles. Where some claimants focus on the big picture of land confiscations, brutalities and oppression, others play small ball.


In all, attending the hearing was a much welcomed opportunity. As a would-be scholar, I try to maintain objectivity to the extent possible. But witnessing a hearing like this reminds me that what I view in abstraction has real world consequences for the people involved. For my friends, this hearing was about their lands, their home place, and their family. It's just as important to them as our acreage in Oklahoma, our farmhouse, and my family is to me.


No matter where you are, history is a painful thing.
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