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Does Chief Wahoo Deserve an Antitrust Exemption?

by Professor Stefan Padfield on February 19, 2009

in Civil Rights,Federal Courts,Federal Indian Law,Government,Stefan Padfield

Were honoring Native Americans.  Really.

We're honoring Native Americans. Really.

Spring training got into full swing this week.  For most of my adult life, the return of baseball was like a ray of sunlight breaking through grey skies because I love to watch and score the game.  But since I moved to Cleveland four years ago, the return of baseball has left me tense–dealing with the conflict between my love of the game and the image of Chief Wahoo.  At times like these, I am repeatedly reminded of a poster I saw in Sports Illustrated when I was in grade school that had pictures of fictitious and patently offensive mascots for teams named the "New York Negroes" and the "Boston Jews," along with those of the Cleveland Indians and Washington Redskins.  At the bottom of the poster it read: "If any one of these is offensive to you, then they all should be."  I have yet to hear a good explanation for why that statement is not correct.

None of which is to say that I don't sympathize with fans of the Indians who get defensive on this point.  There is the simple conscious or unconscious equation that: (1) I've been wearing Chief Wahoo gear my whole life; (2) I'm not a racist; so, (3) Chief Wahoo can't be a racist image.  There is also the sense that there should be one place in the world where we should be free from the wagging finger of the "political correctness police."  For many, that "place" is sports.  We work hard, struggle to make ends meet and be good people–is it really too much to ask that we be allowed to watch our home team in peace?  I can sympathize with both these sentiments.  But my short response to them is that we are called to be better.  One of the great things about humans is that they have the capacity to reconsider deeply held beliefs.  And, when the time is right, they can stop defending the indefensible.

And speaking of being better, I think I know just where to start.  When I think of Cleveland and northeast Ohio I think of a place where people suit up and show up for work and greet you with a smile in spite of high crime, foreclosures, and winters that would make Mr. Freeze look for warmer climes.  There is a spirit here that refuses to give up even in the face of the cruelest jokes or harshest criticisms.  I am currently in my fourth year at the University of Akron School of Law, and I can tell you with complete conviction that every person on our organizational chart is committed to being of maximum service to our students, the law school, and the communities–local, national, and global–that we are connected to.  There really is a "Spirit of Ohio" and I would love to see the team that plays the most games in Cleveland each year have a name and mascot that reflect that spirit–as opposed to one that leads to children holding signs that say, "I am not a mascot."

Which leads me to the subject of this post: Does Chief Wahoo deserve an antitrust exemption?  Professor Mitchell Nathanson recently posted a paper that,

examines the relationship between Major League Baseball (MLB) and the law and discusses how it has evolved that MLB has become unofficially exempt from federal law on a wide range of issues due to its unique status within American society. Although its antitrust exemption is well-known, MLB has, in practice, not been subject to the forces of federal law in many other contexts as well, setting it apart from most other corporations and organizations – even other professional sports leagues such as the NFL, NHL and NBA. . . . .  From its inception in 1876 to the present, MLB has been, in effect, an extra-judicial entity, a society unto itself, answerable to no one in all but the most extreme circumstances.

This made me wonder whether the United States government should be bestowing such benefits on an organization that profits from the use of a racist image like Chief Wahoo.  To believe that it shouldn't does not even require you to believe that Chief Wahoo is in fact a racist image.  You would just have to accept that there is a significant amount of controversy surrounding the image and that the federal government shouldn't be "taking sides" in the controversy.  (Prof. Nathanson argues that the government's preferential treatment of major league baseball is rooted in judicial and legislative acceptance of the "baseball creed," which states that "baseball contribute[s] to individual and public welfare by 'building manliness, character, and an ethic of success.'")  You also would not have to worry about infringing on the individual liberty of MLB and the Cleveland Indians because you would not be prohibiting the use of Chief Wahoo as a mascot, you would merely be declining to bestow special federal treatment so long as they chose to keep the Chief.  This is not unlike Title IX, which does not prohibit sex discrimination in education–it simply ties the receipt of federal funding to compliance.

Joe Posnanski, sports columnist and former Clevelander, put it like this:

Wahoo is an inherently racist symbol.  Nobody could really deny this.  Nobody could look at that grinning mug and say, "No, it's really a flattering portrayal of Native Americans, who were conquered, nearly wiped off the planet by our ancestors and then forced to live on reservations."

….

The only reason Chief Wahoo is around is because Native Americans don't have a strong enough voice in this country to put a stop to it.  When Native Americans protested at the 1997 World Series, they were mostly laughed at.  Three were arrested.  Is this really the kind of country we want to be?  And for what?  To stand up for our inherent rights to enjoy a racist sports logo?

I love Cleveland. I love the Indians and I even love Wahoo in a weird way because it is such a part of my childhood.  But it is not just time to get rid of Wahoo, it is way, way past time.  I don't think this is the biggest problem facing the world, or even the 54,993,287th biggest problem facing the world.  I don't care about political correctness either.  No.  It's just wrong.  Very wrong.  Get rid of it.  The fewer wrong things in the world, better.

At a time when there is much wailing and gnashing of teeth surrounding the message our children are getting from baseball regarding steroids, maybe we can also reconsider the message of Chief Wahoo.  After all, newly appointed Attorney General Eric Holder recently "described the United States … as a nation of cowards on matters of race, saying most Americans avoid discussing unresolved racial issues," and "urged people of all races to use Black History Month as a chance for frank talk about racial matters."

So, consider yourself urged.

P.S.–In the interest of full disclosure: I am a Yankees fan.  I realize some of you may dismiss everything I've written to this point on that basis alone.  But I hope you won't.

{ 15 comments }

Nick February 19, 2009 at 3:24 pm

Not only is Chief Wahoo politically incorrect, but the team's name, Indians, is politically incorrect as well.

It seems that the Cleveland brass have been making a gradual move away from Chief Wahoo in recent years, introducing the script "I" alternate logo and increasing the use of the script "Indians" logo in place of the Chief.

However, instead of these gradual steps, I think the time has come to move forward with a new, but familiar, team identity. My suggestion: rename the team the Cleveland Tribe. The name is a politically correct nod to the team's past; it's already used regularly by the press and fans; and it embraces the "Spirit of Ohio" (tribe defined: "a group of persons having a common character, occupation, or interest").

Dan S. February 19, 2009 at 9:28 pm

RE: "There really is a "Spirit of Ohio" and I would love to see the team that plays the most games in Cleveland each year have a name and mascot that reflect that spirit–…" AND "However, instead of these gradual steps, I think the time has come to move forward with a new, but familiar, team identity." AND "The only reason Chief Wahoo is around is because Native Americans don't have a strong enough voice in this country to put a stop to it."

While the sermon is not without merit, it is directed to the wrong audience.
None of the fans, haters, or team players have the the legal right to designate a "brand identity" for the American League professional baseball team based in Cleveland, Ohio. That right and responsibility solely belongs to the current 'ownership' of that franchise (subject to MLB approval).

AND RE: "After all, newly appointed Attorney General Eric Holder recently "described the United States … as a nation of cowards on matters of race, saying most Americans avoid discussing unresolved racial issues,""

As the old saying goes….it's time to put up or shut up. If you are truely impassioned with this issue, I suggest you use your legal talents to spearhead the assault on the actual offending party. And, since I tend to agree with your basic views on the racial nature of the issue, I too will 'put up' in my own small way. Instead of buying another Cleveland baseball tee shirt this Spring (yes, I'm a fan), I will contribute $24 to your war chest for this cause. Fair enough? Show me the paperwork and I'll show you my check.

Quidpro February 19, 2009 at 9:41 pm

Professor:

Why stop with The Chief? Is not your favorite baseball team politically incorrect? Don't you find the name and the insignia of the Yankees insulting to those of New England heritage?

TW April 9, 2011 at 1:09 am

Well let’s dig up some yankees and ask them.

Dave February 19, 2009 at 11:44 pm

I always wonder why aren't the Fighting Irish ever mentioned in these discussions?

The next question is – If I am offended by the color blue, does everyone have to stop using it to accommodate me? In reality, I would be expected to get over my issues.

That leads me to mens rea. One of the things that seems to get lost in these discussions is the intent of the person doing the insulting.

Oddly enough, the people wearing Chief Wahoo are doing it to support their team. Supporting people or an organization is about as far from racism as you can get.

Even if there was some harmful intent once upon a time. I assume that the last several owners keep the mascot for reasons of tradition and because of the marketing potential.

It deafens the ears to real racism when pseudo-racism is detected everywhere. I am afraid that legitimate acts of racism will not be treated properly. What if an act of housing discrimination isn't prosecuted because people are tired of nonsense like the county commissioner in Dallas who thinks that the term 'black hole' is racist?

Finding racism has become a cottage industry and that truly is a bad thing.

TW April 9, 2011 at 1:23 am

Your argument is the same stupid argument people have been using for years and believe me, it’s no smarter now than it was a decade ago. By the way, what is YOUR nationality, your culture? If someone named themselves after your family, the Dave Whatshiscracks, and you knew it was about you and you knew it was about your family, you wouldn’t be offended? You wouldn’t seek some kind of legal action? If that’s the case you’re a better Christian than me.

What you need to be asking isn’t "is this racist" or "is this a bad symbol". What you need to be asking is, “Why is it there at all?” period. I mean really, why? What difference does it really make to Cleveland fans to keep this stupid mascot? Would it ACTUALLY change the course of your life to change it to something else? If it’s “no big deal” then what’s the problem? Yeah you all would grumble and snarl and scratch something at first, but then you’d just grunt, go eat a hoagie, roll over and fall asleep. And when you woke up it would be the next day and you can begin life anew. Or you can keep a stupid looking injun looking thing on your cars advertising to everyone how dumb your team looks and its citizens. Your call.

Mike February 25, 2009 at 5:52 pm

Isn't there a way to determine if Chief Wahoo is having a deleterious effect on the perception of Native Americans? Wouldn't it be fair to do a study to determine if people familiar with the logo are more or less likely to view Native Americans in a negative light? And if those negative effects are in no way perceptible, then isn't the effort to eliminate the Chief a matter of finding a solution where there is no problem?

It is my contention that Chief Wahoo is no longer even a caricature, but rather simply a trademark, a logo, and thus longer has any impact on the perception of Native Americans. I don't think he promotes any more good or ill will towards Native Americans than he does baseball or the City of Cleveland. I might be wrong, but those who assume that Chief Wahoo is reinforcing racial stereotypes might be wrong too.

TW April 9, 2011 at 1:40 am

So if it’s no big deal, then why keep it? Why fight to keep it? If you’re not Indian you probably wouldn’t understand, in fact, you kind of don’t get a say in this unless you’re native american. I appreciate your intelligent argument Mike, but it doesn’t hold water because the truth of the matter is it’s a huge fat middle finger to the native american community. I would know, I’m Indian. Does it hurt me or my life in any way? No, not directly. But it does hurt my feelings to see our proud heritage reduced and demeaned to being that of a ridiculous mascot for a ball club. You and others can say that ‘it’s there to show respect to the Indians, to their proud warriors and bravery, etc etc but that’s horse hockie, and you know it. The original ideas behind naming these teams has everything to do with the team owners and investors viewing Indians as hostile and aggressive and…. scary. Savages. They probably didn’t think we’d care. It’s insulting to know that after all this time after all our requests to have it changed, they continue to say ‘no’ and it’s an even bigger stab in the back that the Cleveland fans would rather keep this icon as some sense of displaced loyalty and laziness rather than do what’s right. Shame on you Cleveland.

larry d. April 9, 2011 at 7:34 am

Are you a native American, TW? I have many relatives who are members of the Shoshone tribe and whenever I visit Wyoming I take a bunch of Cleveland Indians memorabilia as gifts because they like it so much. The vast, vast majority of Native Americans haven't voiced any concern over the nickname. It's mostly white college professors and activists, minority professors whose work depends on pleasing white professors, and liberal lemmings who simply repeat whatever slogan they think will make them look smart like white professors.

I haven't seen any iconology that depicts Native Americans as savage. You must be projecting.

TW April 9, 2011 at 8:29 am

I don’t know how you missed it, I mention several times in my comment that I’m native american but just to be clear; am I N.A? Yes, full-blood Choctaw. Is this mascot issue important in the grand scheme of things? No, and no one has suggested otherwise. Will life go on if they keep their mascot? Yes most likely. Would life go on if they changed it? Yes very likely. Does it matter that this picture offends some of the very people it’s purported to depict? Apparently not. Apparently it’s okay to offend Indians, just not anyone else.

Recently, a writer for a California university paper called, the Union Weekly posted an extremely extraordinarily offensive article about a powwow he attended. He then went on to say how much he hated everything about it, didn’t understand anything he saw, didn’t bother to ask anyone why they were doing what they were doing and then wrote some mouth-dropping things like, and I quote, “What the fuck are Indian tacos?” I kid you not.

Now how does that relate to this you ask? If Indian people can’t demand that we be treated as well as anyone else with the same level of respect as any other culture with even small issues like mascots; then how are we to tackle larger more potent, pertinent attacks like publications and its news people who think they can say whatever they like. The writer of that article inevitably apologized but you know what I want more than a mere apology? Some understanding. That’s all. Native Americans aren’t any more real to him than what he’s seen in the movies and there are plenty of others like him. Maybe marginalizing us isn’t exactly a harmless thing after all.

To allow anyone and everyone the free reign to use our images, our language, our culture for their own purposes, even in a joking way, is dumb. You wouldn’t put up with it. You wouldn’t let some stranger take a picture of you or a loved one and then give him/her the right to use it as they wished would you?

larry d. April 9, 2011 at 2:56 pm

I don't know how I missed it, either. I guess I read too fast.

But which one of your loved ones was used as a model for Chief Wahoo? I admit Chief Wahoo is as about as bad as it gets, and I've got mixed feelings about it, but Cavaliers, or Crusaders, or Fighting Irish, or Scots, or any number of mascots and nicknames are based on people's ancestors. It is a celebration of those cultures, and no one would name a team after savages (I can't recall many teams called "the cannibals," for instance) or firewater addicts, or lazy people, or any negative stereotype.

I don't see how you can claim proprietorship of a language or culture, either. Though as a white dude, I think you owe me ten bucks for typing out your post in English, and another ten if you're wearing cotton pants.

Tony February 26, 2009 at 2:45 pm

Dave,

I agree that people today are too easily offended, and often try to silence others and/or force them to change when they have no right to do so. But, that does not mean that there are never legitimate reasons to be offended.

Dave February 26, 2009 at 10:03 pm

Tony,

That is a fair point. I don't want a license to be a oblivious insensitive knucklehead.

Maybe the question is better asked this way – Can there be racism without a racist?

larry d. February 26, 2009 at 11:29 pm

Boy, Mike asks some good questions.

N. E. Frye February 28, 2009 at 8:34 am

What about 'Zip'? I believe that's what the GI's, or some of them at least, called the locals during the Viet Nam war ( in addition to being the stupidest nickname in all of college sports).

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