STATE OF CALIFORNIA

http://banzhaf.net/noredskins.html

This web site is maintained by public interest law professor John F. Banzhaf III of the George Washington University Law School in Washington DC, and is aimed at preventing the disparaging and insulting term "redskin" from being used by the Washington DC professional football team as well as others. For more general -- as well as contact -- information regarding Prof. Banzhaf, please see: http://banzhaf.net

Official Decision of the California Department of Motor Vehicles Finding
the word "Redskins" is "an offensive, disparaging term"

The Proposed Decision of the Administrative Law Judge, a copy of which is herewith served upon you and which has heretofore been filed as a public record as provided in Government Code, section 11517, subdivision (b), is hereby adopted by the Director of the Department of Motor Vehicles of the State of California as the Decision in the above matter.

On March 8, 2000, in Oakland, California, Perry 0. Johnson, Administrative Law Judge, Office of Administrative Hearings, State of California, heard this matter.

Respondent George F. Correa appeared at the hearin to represent his own interests.

Ed Snyder made the Order Canceling Environmental License Plates and the Order for the Return of Plates in his official capacity as Acting Director, Department of Motor Vehicles ("Department").

The Department on a date before August 15, 1996, issued to respondent George F. Correa, with Susan L. Correa, ("respondent") an environmental license plate with the lettering: "RDSKINS."

On August 15, 1996, the Department granted respondent's application to remove the subject license plates from a Volvo automobile so as to reassign the license plates to a GMC Yukon vehicle. Since that time the license plates have been attached to respondent's GMC Yukon truck.

3. Neither the Department nor respondent can represent a precise date upon which the Department first issued the subject license plates to respondent. However, respondent contends that the Department issued him the plates before he was married which indicates a date at least twenty years ago in 1980.

4. The Department's records do not show on the application for the plates, the meaning, for the letter figuration of "RDSKINS" as intended by respondent.

5. Respondent George Correa explains he has been an avid and faithful supporter of the National Football League professional football team in Washington, D.C. that is known as the Washington Redskins. He attaches no racial connotation to the plates.

6. Respondent has not had any Intent in using an offensive or vile term in connection with the license plates.

7. The Department's policy making personnel have determined that the letter configuration of "RDSKINS," or any similar lettering that conveyed the term "redskins," was inappropriate for placement on environmental license plates issued by the Department to owners of automobiles registered in California.

8. Mr. Eugene Herrod ("Mr. Herrod'), the sole witness called by Complainant declares that the word "redskins" has an emotionally distressing affect upon him as a Native American. Mr. Herrod's perspective is that the word has a negative racial connotation that amounts to a racial slur or epithet.'

Mr. Herrod is a "full blood" Muscogee-Creek Indian of Oklahoma. He is active in Native American affairs, which includes his membership on the Board of Directors of Southern California Indian Center, Inc.' Mr. Herrod is fluent in the Muscogee-Creek

I "American society remains deeply afflicted by racism. Long before slavery the mainstay of the plantation society of the antebellum South, Anglo-Saxon attitudes of racial superiority left their stamp on the developing culture of colonial America. Today, over a century after the abolition of slavery, many citizens suffer from discriminatory attitudes and practices, infecting our economic system, our cultural and political institutions, and the daily interactions of individuals. The idea that color is a badge of inferiority and a justification for the denial of opportunity and equal treatment is deeply ingrained. [P] The racial insult remains one of the most pervasive channels through which discriminatory attitudes are imparted. Such language injures the dignity and self-regard of the person to whom it is addressed, communicating the message that distinctions of race are distinctions of merit, dignity, status, and personhood. Not only does the listener learn and internalize the messages contained in racial insults, these messages color our society's institutions and are transmitted to succeeding generations." Delgado, "Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling," (1982) 17 Harvard Civil Right-Civil Liberties Law Review 133, 135-136.

2 Mr. Herrod represents that the Southern California Indian Center is "probably the oldest

and largest" social service American Indian organization in Southern California. He asserts that the

corporation serves the needs of more than 80,000 Native Americans in Southern California.

language. He spent his early childhood in Bureau of Indian Affairs ("BIA'') schools on a reservation in Eastern Oklahoma. In the late 1960's, Mr. Herrod came to California through a BIA Relocation Program.

Mr. Herrod compellingly conveys that he is very familiar with the term "redskin." Since his very early childhood, he has known the term to be a derogatory appellation for Native Americans. Mr. Herrod has viewed the terms "buck," "prairie nigger," and "redskin" to have the same negative, mean and ill-spirited connotation.

Mr. Herrod conveys that the term "redskin" is not used in general usage. The term is never used in academic circle. Nor is the word "redskin" used properly or colloquially to address or to refer to Native Americans. The only current use of the term is to insult a Native American or its use in the media is to refer to the NFL professional football team located in Washington, D.C.

Mr. Herrod represents that any variation of the spelling of the term whether it appears as "rdskin ... .. redskns" or "redsknz" is offensive.

Mr. Herrod pointedly expresses that a particular harm flows from the appearance of the "redskins" term on Department issued license plates that appear on public roadways. Such displays of the offensive term negatively impact upon the psyche of children, especially Native Americans. A goal of current Indian leaders is to assure equal access to educational opportunities to Native American children. Hence, the continued trivialization of Indian culture by the use of professional and college sports team of Indian oriented names and symbols as mascots or team names adversely impact such educational objectives.

Mr. Herrod conveys that it is difficult for him to respond to the continued ignorance of majority culture sports teams using Native American names, icons and symbols. Mr. Herrod explains that the frustration he and other Indians experience is intensified by the display of such terms as "redskins" on the Department's issued vehicle license plates, which give the appearance of the imprimatur of the State of California's broadcast of offensive terms.

9. The evidence offered through Mr. Herrod is persuasive, compelling and credible. Additionally, complainant offers declarations from other persons under Government Code section 11513, subd.(d) so as to supplement and explain evidence provided by Mr. Herrod.

Paula Starr in her declaration, dated February 9, 2000, states that she is an enrolled member in the Cheyenne and Arapaho Tribes of Oklahoma. She provides that as a community worker, mother, grandmother and American Indian, the term "redskin" has a negative and offensive -connotation that undermines the self-esteem, dignity and respect of

American Indians. She believes that the term's use reflects ignorance of American Indians, but at worst, use of the word "redskin" expresses hostility and racism towards the aboriginal people of the Western Hemisphere. Ms Starr represents that the native impact of the term is particularly acute in the context of license plates because such plates are in the public eye and are sanctioned by the State of California.

Duane Champagne, in his declaration, dated February 7, 2000, declares that he is a member of the Turtle Mountain Bank of Chippewa Indians of North Dakota. He states that the first use of the term "redskin" appeared in a derogatory context as long ago as 1699. He cites a historical text that set forth: "Ye First Meeting House was solid mayde to withstande ye wicked onsaults of ye Red Skins." Mr. Champagne observes that rather than the term

"redskin" denoting a sacred or practical dimension for the word, the current majority culture in this country has an understanding and use of "redskin" that denotes racial differences and racial classification according to skin hue or color. Mr. Champagne, who represents that he holds a Ph.D. in Sociology from Harvard University, declares that the term "redskin" is derogatory, offensive, not in good taste, a term of contempt, insulting and a racially and ethnically degrading word.

Joan Weibel-Orlando, in a declaration, dated February 9, 2000, states that she is an Associate Professor in the Department of Anthropology at the University of Southern

California. She holds a Ph.D. in anthropology from UCLA. Since 1973 she has worked with many Native American communities, including the Navajo, Hopi, Cherokee, Creek,

Seminole, Chickasaw, and Choctaw peoples. She represents that she has authored numerous articles and written a book on Native American life. Ms Weibel-Orlando points out that the term "redskin" has a racist connotation that is offensive and hurtful to Native Americans.

10. The parties reliance upon dictionary definitions of the term "redskin" is in conflict. Use of the dictionary definitions does not fully resolve the controversy.

Complainant shows that the Merriam- Webster's Collegiate Dictionary, TenthEdition .3 defines "redskin" as: "n [noun] (1699): AMERICAN INDIAN - [usually] taken to be offensive." Also, complainant produces the Random House College Dictionary, 4 Revised Edition that defines the term as "n [noun]. Often Offensive. A North American Indian."

Respondent offers a definition of "redskin" from the Oxford Universal Dictionary on Historical Principals5 as "(1699) A North American Indian."

11. Official Notice' is taken of decision of the Trademark Trial and Appeal Board of the United States Patent and Trademark Office entitled Harjo v. Pro Football, Inc. (1999) 50 U.S.P.Q.8 2d 1705.

The Harjo decision is a case of first impression.9 The decision grew out of a complaint filed with the U.S. Patent and Trademark Office in September 1992 by a group of Native American leaders against the Washington Redskins professional football organization. The complaint sought to cancel the federal registration of the trademarked term "redskins." Complainants in that case argued that the football team's registration of the team name should be canceled because the term was a disparaging, offensive and racist slur in violation of Title 15 United States Code section 1052, subd. (a). The NFL football team organization countered with an argument that the team's name was a badge of pride and honor.

The Harjo decision rests upon evidence regarding the term "redskin(s)" from not only the Native American petitioners/complainants, but also from the findings and expert opinions of civil rights activist groups, historians, social science experts, journalist association members, linguistics experts and survey statistics of the general population and Native Americans.

The Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office made several conclusions that supported its order to cancel the registration of the NFL professional football team in Washington, D. C. to maintain its trademark protection rights to the word "Redskins" by setting forth, among other things:

This is not a case where through usage, the word "redskin(s)" has lost its meaning, in the field of professional football, as a reference to Native Americans in favor of an entirely independent meaning as the name of a professional

7 In reaching a decision in a California Administrative Procedure Act proceeding, the Administrative Law Judge and agency may take "official notice" of any fact that may be judicially noticed by a court. (Gov. Code § 11513,subd.(c);) Like Judicial notice in court proceedings, the use of official notice in administrative proceedings establishes a relevant law or fact without the necessity of formal proof. Under Evidence Code § 452, subd. (c) Judicial notice may be taken of "official acts of the ... executive and judicial departments of the United States...." The decisions of the U.S. Patent and Trademark Office, Trademark Trial and Appeal Board are official acts of an executive department of the United States of America.

9 George Likourezos, "A Case of First Impression: American Indians Seek Cancellation of

the Trademarked Term' Redskins'," 78 Journal of Patents and Trademark Office Society 275.

football team. Rather, ..."Redskins" clearly both refers to [the NFL] professional football team and [also] carries the allusion to Native Americans inherent in the original definition of that word. (p. 1742)

[P]etitioners have clearly established... that ... the word "redskin(s)", as it appears in the [the NFL football team's marks in [the trademark] registration ... may disparage Native Americans, as perceived by a substantial composite of Native Americans...." (p. 1743)

(T)he evidence supports the conclusion that a substantial composite of the general public finds the word "redskin(s)" to be a derogatory term of reference to Native Americans. (p. 1744)

[E]xcerpts from various articles and publications about language... include, often in a larger discussion about bias in language, the assumption or conclusion that the word "redskin(s)" as a term of reference to Native Americans is, and always has been, a pejorative term. (p. 1744)

The vast majority of newspaper headlines, newspaper articles, and excerpts from books and periodicals from the late 1800's and early 1900's, which include the word "redskin(s)" as a reference to Native Americans, clearly portray Native Americans in a derogatory or otherwise negative manner. (p. 1745)

(T)he word "redskin(s)" does not appear during the second half of this century in written and spoken language, formal or informal, as a synonym for "Indian" or "Native American'' because it is, and has been since at least the 1960's, perceived by the general population, which includes Native Americans, as a pejorative term for Native Americans. (p. 1745)

The pejorative nature of "redskins" in the early historical writings of record comes from the overall negative viewpoint of the writings. (p. 1745)

The derogatory connotation of the word "redskin(s)" in connection with Native Americans extends to the term "Redskins", as used in the [NFL professional football team's] marks may be disparaging of Native Americans to a substantial composite of this group of people. (p. 1748)

[The NFL football team's] marks... consist of or
comprise matter, namely the word or root word, "Redskin,".

12. In February 1999, the Utah State Tax Commission, that includes the Motor Vehicle Division, revoked license plates that contained the term "Redskins" or any set of letters that conveyed the term. The Utah State Tax Commission, upon the direction of the Utah State Supreme Court10 that adopted the California Court of Appeal's reasonableness standard as set forth in Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, concluded that "the objective, reasonable person required to determine if there is 'any connotation that' the term Redskin is 'derogatory,' or expresses contempt or ridicule for a race or ethnic heritage... would be led to the inescapable conclusion that the term has at least one such connotation." (Michael McBridge et al v. Customer Service Division of the Utah State Tax Commission, Appeal No. 96-0095, (Utah State Tax Commission, Feb. 26, 1999.)

13. Respondent presents neither expert witness nor corroborating proof in support of his assertions that the term "redskins" does not connote a negative, degrading or disparaging reference to Native Americans, also know as Indians.

14. Respondent asserts that the rear bumper of his vehicle that now displays the subject environmental license plates bears bumper stickers with the professional football team helmet logo and name of the "Washington Redskins." However, respondent does not establish the length of time the vehicle has borne the referenced bumper sticker, nor does he prove that the clarity of the bumper sticker has not been affected by weather conditions.

15. A reasonable person could extract from the subject environmental license plates as issued to respondent a connotation from the plates' configuration that conveys the offensive expression: "redskins" as referring to the aboriginal peoples of Western Hemisphere, known in this country as Native Americans or Indians.

16. The Department has developed objective standards by which it evaluateswhether license plate configurations carry connotations offensive to good taste and decency. The criteria are stated in Title 13, California Code of Regulations section 170.00, subdivision (c)( 3)(D).

17. The weight of evidence establishes that the license plate "Rdskins" is easily deciphered as "redskins." As set out on Department issued environmental license plates, the term "redskins" is an offensive, disparaging term that negatively impacts upon residents of the State of California.

10 McBridge v. Motor Vehicle Div. Of the Utah State Tax Commission, (Utah 1999) 977 P.2d 467.

1. Title 13, California Code of Regulations ("Regulations") section 170-00 subdivisions (c)(3)(D) subparagraphs 3 and 4" respectively prescribe that configurations on environmental license plates that amount to "a swear word or term considered profane, obscene, or repulsive" or a term that "has a negative connotation to a specific group" are to be refused by the Department as having connotations offensive to good taste and decency, within the meaning of Vehicle Code section 5105, subd. (b).

2. Under section 170.12 of the Regulations, the Department shall cancel and order the return of any environmental license plates previously issued that contain any configuration of letters that the Department later determines carry connotations offensive to good taste and decency.

3. Complainant's reliance upon dictionary definitions of the term "redskin" is not determinative. Respondent offers a definition that suggests no offensive connotation to the word, but merely defines the term as "North American Indian." Also, other modem dictionaries offer definitions supportive of respondent's view of the word as a neutral reference to Indians.

A federal court offers guidance with regard to resting upon a dictionary definition by pointing out:

While a standard dictionary may indicate how the substantial composite of the general public defines a particular word, the accompanying editorial label of vulgar usage is an arguably less accurate reflection of whether the substantial composite considers the word scandalous. Such labels are subject not only to differences in opinion among the respective publication staffs of particular dictionaries, but also to the potential anachronism of those opinions. In re Mavesty Media Group Ltd. (Fed.Cir. 1994) 33 F.3d 1367, 1.373.

4. The test in determining whether or not a configuration on an environmental license plate is offensive to good taste or decency is not that a word or expression be understood by every addressee or person who sees the word or expression. Rather, the "test is what people of ordinary intelligence... would understand from the use of the word ...... (Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 170.)

11 Complainant in its Order Canceling Environmental License Plates does not plead that the

subject term on respondent's license plates falls with the scope of Regulations subdivision (c)(3)(D) 2,

that proscribes a "configuration [that] is a vulgar term; a term of contempt, prejudice, or hostility; an

insulting or degrading term; a racially degrading term; or an ethnically degrading term."

Moreover, the Legislature has given the Department discretion to reject requests for personalized license plates "... that may carry connotations offensive to good taste and decency (Vehicle Code § 5105, subd. (b).) No violation of First Amendment rights results when the Department exercises its discretion to reject a request for a personalized license plates that is offensive to good taste and decency. (Katz v. Department of Motor

The testimony of Mr. Eugene Herrod as supplemented and explained by four declarations from knowledgeable persons along with the comprehensible opinion of the United States Trademark Trial and Appeal Board decision in Harjo v. Pro Football, Inc, supra., and the Utah State Tax Commission opinion in the McBridge decision, demonstrate that the word "redskins" is a term that, at a minimum, carries a negative connotation to a specific group.

5. It is not unreasonable to conclude that people of ordinary intelligence would interpret RDSKINS as meaning "redskins."

6. The weight of the evidence establishes that cause exists to cancel the environmental plates involved in this matter.

Environmental License Plates RDSKINS as issued to Mr. George Correa and Ms Susan L. Correa are cancelled.