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Public Hearings on Official Insignia of Native American Tribes, July 12, 1999

                     BEFORE THE

        UNITED STATES DEPARTMENT OF COMMERCE

            PATENT AND TRADEMARK OFFICE

                     - - - - -



                 PUBLIC HEARING ON

    OFFICIAL INSIGNIA OF NATIVE AMERICAN TRIBES


                     - - - - -

               MONDAY, JULY 12, 1999

                     - - - - -



          The   hearing   was   convened   in    the

Latino/Hispanic  Community Meeting Room,  Room  L58A

San  Francisco  Main  Library,  Civic  Center,   San

Francisco,  California,  at  10:00  a.m.,  Q.   TODD

DICKINSON,  Acting Assistant Secretary  of  Commerce

and  Acting Commissioner for Patents and  Trademark,

presiding.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460




PRESENT:

          ELIZABETH MELTZER, ESQ.
          U.S. Patent and Trademark Office
          Office of Legislative and International Affairs
          Washington, D. C.


          STEPHEN WALSH, ESQ.
          Office of the Solicitor
          United States Patent and Trademark Office
          Washington, D. C.






JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460





                    A G E N D A

                                           PAGE

     OPENING REMARKS                          4
     Q. TODD DICKINSON
     Acting Assistant Secretary of Commerce
     Acting Commissioner of Patents and Trademark




     STATEMENT OF

     NANCY EDWARDS                            9
     Ojiba
     North Michigan



     FERN MATHIAS                            14
     Dakota
     South Dakota



     MELODY L. MC COY, ESQ.                  25
     Native American Rights Fund
     On behalf of the
     Tuolumme Band of Me-Wuk Indians








JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460

                                                       4


                  P R O C E E D I N G S

                                                10:05 a.m.

          ASSISTANT SECRETARY DICKINSON:  Good morning!

          My  name  is  Todd Dickinson.   I'm  the  Acting

Commissioner  of  Patents  and Trademark  for  the  United

States,  as  well  as the Acting  Assistant  Secretary  of

Commerce.   And, on behalf of the Department of  Commerce,

I want to welcome everybody here today to this hearing.

          As  you know, a law was passed by Congress,  due

to  the  active  leadership of  Senator  Bingaman  of  New

Mexico, which requires the Patent and Trademark Office  to

study the issues surrounding trademark protection for  the

official  insignia  for federal  and/or  state  recognized

Native American Tribes.

          In  order to gain answers to questions, such  as

what  is  an official insignia, how might any  changes  to

current  law  affect  trademark  owners,  and  other  such

questions,  the Patent and Trademark Office published  two

notices  in  the Federal Register, which is  the  official

publication  of  the notices for agencies in  the  Federal

Government.    The  first  Federal  Register  notice   was

December  29,  1998; the second was March  16,  1999.   We

published two because we wanted to make sure that we  have

captured  the  ongoing  interest  of  the  public's  views

concerning  all  aspects of trademark protection  for  the





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         5


official insignia of Native American Tribes.

          We  received  quite a few responses to  both  of

those notices.  But since written comments are one  thing,

and  actual  live face-to-face communication  another,  we

thought it was particularly important that the PTO hold  a

series  of  hearings,  of  which  this  hearing,  in   San


Francisco, is the second.

          I'd  like  to tell you a little bit  about  what

we're  doing  at  the PTO to  safeguard  the  intellectual

property rights of Native Americans.

          We  are  not,  as  is  sometimes  believed,   an

enforcement  agency,  like, say, the FBI  or  the  Customs

Bureau.   We  are principally charged with  examining  and

registering  trademarks,  as well  as  examining  granting

patents.   But  we don't actually send  out  enforcers  or

police,  if you will, if someone is  infringing  someone's

trademarks.   However, the act that we  have  specifically

prohibits   the  registration  of  marks  that  might   be

discouraging,  encourage a false association  between  the

applicant  and the person, group, or thing  identified  in

the mark, and we take this responsibility very seriously.

          Back  in  1994, we undertook  to  contact  every

federally-registered  Native  American Tribe in  order  to

compile  a  list  of official insignia so  that  we  might

better uphold the letter and spirit of the Trademark  Act.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         6


To  our knowledge, we have not undertaken such  a  project

for any other group before.

          We    sent    out   letters   to    about    500

federally-registered   tribes.   Unfortunately,  at   that

time, we received fewer than 10 responses to our  inquiry.

Now  we understand the trademarks are not necessarily  the

most  pressing  matter  for the vast  majority  of  Native

Americans,  so we didn't let this discourage us too  much.

Far from it.  We made a conscious decision to do the  best

we could to insure that others didn't pass themselves  off

as Native Americans, or as Native American Tribes, through

the  registration  of  trademarks that  create  the  false

impression of the true origin of goods or services.

          Since    1994,   all   trademark    applications

containing the names of tribes, recognizable likenesses of

Native  Americans,  symbols  perceived  as  being   Native

American  origin,  and  any other  application  which  the

Office  believes  suggests  an  association  with   Native

Americans, are examined by one attorney who has become  an

expert in this particular area.  We have refused a  number

of registrations.  For example:  Marks which have included

the Zia, the word "Zia," or representation of the Zia  Sun

Sign,  or  goods, such as cocktail mixes.   We  also  have

pending a -- we also refused registration to the Sun  Sign

Symbol for stationery and computer software.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                       7


          We  have been diligent in our efforts, and  have

several  systems in place to safeguard against  the  wrong

party obtaining trademark rights and to something in which

they are entitled.  We have what is called the "Letter  of

Protest Procedure," which is free, as a matter of fact, as

well  as our Opposition and Cancellation Proceedings,  for

which  there  is a cost, to make sure that  all  trademark

registrations are issued in accordance with the  Trademark

Act.

          So, I'd like to thank you all for indulging me a

little  bit in terms of the efforts that we have done,  so

far,  in our office; but, obviously, we wouldn't  be  here

today  if  we  weren't very interested  in  continuing  to

uphold our obligations and monitor the compliance that  we

have, and receive, frankly, suggestions from anyone  about

how  we can do our job better.  So that's the  key  reason

that we're here today, as well.

          We  have, as I understand it, three  individuals

registered  to testify today:  Ms. Reba  Fuller,  Cultural

Resource  Specialist  from  the Tuolumme  Bank  of  Me-Wuk



Indians -- she's not here, right?

          MS. MC COY:  No, she isn't.

          ASSISTANT SECRETARY DICKINSON:  Nancy   Edwards,

from  the Ojiba Tribe, from Northern Michigan.   Where  is

that specifically?





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                     8


          MS. EDWARDS:  On   the   Keweenaw   Bay   Indian

Reservation, almost at the end of US 41.

          ASSISTANT SECRETARY DICKINSON:  Very good.

          And  Fern Mathias, from the Dakota  Tribe,  from

South Dakota.

          Are  there any other individuals or  groups  who

wish to testify today?

          [No response.]

          As I said, we are here to listen.  We would  ask

that  each  person  feel  free to comment  for  up  to  15

minutes.  Though we are fairly informal about time, we  do

want  to  make sure that everyone has  an  opportunity  to

speak,  and  Ms. Meltzer will be our timekeeper.   If  you

have  written  comments, make sure that we get a  copy  of

those, and that our reporter gets a copy of those, so they

can be included in the formal record.

          On a personal note, I want to thank you all  for

taking  the time to come to testify.  We're eager to  hear

your comments.

          Let  me  introduce Eleanor Meltzer,  who  is  an

attorney-advisor   in  our  Office  of   Legislative   and

International  Affairs;  and Mr. Steve Walsh,  who  is  an

attorney in our Solicitor's Office.

          Without  further  ado, why don't  I  invite  Ms.

Edwards to speak.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                      9


          MS. EDWARDS:  I'm Nancy Edwards, and --

          ASSISTANT SECRETARY DICKINSON:  Come  on  up  --

can we capture --

          MS. EDWARDS:  Can we capture?  I've always being

captured.

                       STATEMENT OF

                  NANCY JONDREAU EDWARDS

                  OJIBWA, NORTH MICHIGAN

          MS. EDWARDS:  I'm  not  sure  I'm  going  to  be

talking  on the exactly the trademark, and such.   What  I

wanted to -- I just got the instructions a couple of  days

ago, so I hurriedly tried to get something together.

          I wanted to talk mainly about the word  "squaw."

I  know it doesn't particularly put any particular  tribe,

Ojibwa,  or Dakota, or Cherokee, or anything else;  but  I

did  buy a loaf of bread at Lucky's Store that has  "Squaw

Bread" on it.

          [The  loaf of Squaw Bread was proffered  to  the

panel.]

          When  I  was growing up on  the  reservation  --

well,  actually,  I'm going to be talking  about  "squaw,"

because,  in  other words, it's an  inappropriate  manner,

just  as the Redskins and the Wahoo, and other names,  and

what it means to the Indian people.  I am highly  offended

by  the  use  of  these words  in  the  corporate  sector,





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                       10


schools, and geographical locations.

          In Webster's, Webster's Dictionary, the New 20th

Century  Dictionary  of the English Language,  the  second

edition,  1969, the definition of "squaw" was a  noun,  it

has American Indian, and the first meaning is an  American

Indian  Woman  or wife; (2) any women,  chiefly  humorous.

When  in  actuality, the word in  the  Algonquin  language

means the vagina.

          Growing  up on the reservation, I did  not  find

the  word squaw humorous, as the local guys,  young  guys,

and local white children used to yell at me and my  family

and  sisters,  and friends, you know, "Hey,  look  at  the

squaws,"  you  know, and "Hey, squaws, come  here,"  which

made  me  feel embaraased.  When I was older, it  made  me

feel  like  I was a prostitute, a whore, as  I  understand

their intention in calling me that.  It still hurts,  deep

in  my heart and soul, when I remember this,  these  words

when  we were young.  These children are not born  racist;

racism is taught by society, schools and families.  It  is

time to stop living under this pain of discrimination, and

time  to protect our children from this terrible  disease:

racism.

          As  an  example:  Yesterday, while  shopping  at

Lucky's,   I  came  across  a  loaf  of   "Squaw   Bread,"

manufactured  by Braun's -- which I just gave  you.   Just





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        11


seeing  this name, drew me back to that small child  being

taunted and made to feel ashamed of who I was.  And we had

an open reservation, so the main U. S. 41 went through it.

So,  you  know,  you had people going  through,  and  kids

coming from other areas to the reservation.  As an  adult,

I'm angry and wonder how the word "squaw" symbolizes  this

product,  the bread, you know.  To me, it has always  been

demeaning,  and I can't figure out -- maybe the color.   I

don't know what they had in mind.

          This  also  brings me to  all  the  geographical

areas that have squaw, like Squaw Valley.  You know,  what

does  this  have to do with Indian women, or  our  private

body  parts,  for that matter?  This is not  a  matter  of

political correctness; it is a matter of human rights.  We

have  had 500 years of genocide and dehumization.   It  is

time to stop treating the Native Americans this way.

          Talking about "Chief Wahoo," and the "Redskins,"

and  the "Braves," and their corporate logos, a mascot  is

something  to  be laughed and jeered at, and a  person  is

not.   It is disrespectful and insensitive.  Ignorance  is

not okay.  Mascots, such as the Redskins, the Braves,  and

corporate  logos, such as Chief Wahoo, are used in  sports

to generate frenzy and promote violence under the guise of

good  clean fun.  Plus, these mascots are portrayed  using

items  which  are  deeply  sacred  to  us,  such  as   the





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                   12


headdresses,  feathers and drums.  These mascots  are  not

honoring me, but are derogatory and dehumanizing.

          As I am the Spiritual Leader of my Tribe, I have

the ceremonies, we go on fast, 4-day fast, and, you  know,

and  these  feathers have to be earned.   You  know,  it's

really  hard.   You  know, you don't go  out  with  40,000

people, you know, and the religion, and stuff, and to have

somebody making fun of us.  So, I'm hoping the Chief Wahoo

goes.

          As  an example, my grandson attended William  S.

Hart High School.  That's in Newhall, Newhall, California.

And this high school mascot is the Indian.  During a  prep

rally,  before a game, which are the Canyon  Cowboys,  the

principal  put  on a full headdress, which about  8  years

ago, he called and asked me about it.  Somebody gave it to

him.  I said, "Don't you."  Only a few people should  ever

wear  a  headdress,  and  it's not,  you  know,  a  school

principal, for a prep rally.

          My  grandson was highly offended.  He  tried  to

find the principal afterwards to tell him how  he felt and

how  terrible he thought it was that he would do this.   I

have a picture of the guy.  He felt devastated to see  the

principal and an educator acting in a manner of racial and

cultural insensitivity.

          It  is horrifying to have my grandchildren,  and





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                     13


other children, see this as acceptable behavior.  We  have

desensitized    entire   generations   of   children    by

inappropriate and inaccurate role playing.  This is called

"ethnic  cleansing."   You  know,  I  hear  about   ethnic

cleasning over in Kosovo, and all over, you know; but this

is  what  happened  to our people here.   As  far  as  I'm

concerned, Hitler got it from us with the Jews.

          I  urge you to put an end to  corporate  symbols

that  are hurtful to Native Americans.  They do not  honor

Native Americans, but they are offensive.

          I  want  to thank you for listening to  me  here

today, and I hope you take my words to heart when deciding

on this important legislation.  And I wanted to show you a

picture of our principal that was taken in the a yearbook.

I  guess  my  children  are  out  of  school,  so  is   my

grandchildren.   He  didn't  know it was  in  one  of  the

yearbooks, you know.  And he happens to be Jewish, too, so

I was really further hurt that he would do that.

          [The picture was proffered to the panel.]

          MS. MELTZER:  May we keep this?

          MS. EDWARDS:  Yes,   keep  that.    And   here's

something  about  all the names, geographical  names.   In

Minnesota, there's a couple of girls in Cass Lake that got

the  community  and the state to change their  names  from

squaw-something, so it can be done.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                      14


          I thought that was what we were supposed to talk

about.  That's what I told John about this squaw bread.  I

went in a restaurant, and they bring two rolls, one  white

and one brown.  I said, "What is this one?"

          She said, "Oh, it's squaw bread."

          So, anyway, thank you.

          ASSISTANT SECRETARY DICKINSON:  That's     fine.

Thank you, Ms. Edwards.  We appreciate your testimony.

          Any questions at all for Ms. Edwards?

          MS. MELTZER:  I don't.

          ASSISTANT SECRETARY DICKINSON:  Thank  you  very

much.

          Ms. Mathias.

                       STATEMENT OF

                       FERN MATHIAS

                          DAKOTA

                       SOUTH DAKOTA

          MS. MATHIAS:  I  didn't bring my evidence,  like

the  Cherokees, the jeeps, or Dakota Trucks.  Too  big  to

bring.

          My  name is Fern Mathias.  I'm director  of  the

American Indian Movement in Southern California.  I'm also

a member of the Sisseton-Wahpeton Band of Dakotas in South

Dakota.   I came from a school called the  "Redmen."   So,

we,  in high school, I did not feel comfortable  going  to





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                     15


that  school.   We were the only family who went  to  that

school.   The rest of them were farmers.  But,  anyway,  I

just want to read you my testimony.

          We  do not want tribal names and symbols  to  be

used  to sell products or to identify  non-Indian  entity,

such as the Apache Helicopter, Crazy Horse Beer,  Cherokee

cars,  or  products.   Like  some  of  these  stores  have

Cherokee   clothing.   And  we  certainly  do   not   want

non-Indians  trademarking Indian names and symbols.   Just

because  the  Indians didn't have copyright  laws  doesn't

mean  others can just take and use their symbols.   That's

pretty dishonorable and unfair.

          We know legally non-Indians have been able to do

this,  but  what about the sense of  respect  for  another

culture's values, a culture where copyright protection  or

locks  or  jails, for that matter, were not  needed?   The

dominant culture makes laws because they have no sense  of

justice.   They need to protect themselves  against  their

own people.  How sad.

          We,  as  Indian people, never  had  to  regulate

fairness, dignity and respect.  It came naturally.  But we


live in America, in the modern age, and we have to protect

ourselves.   We  need to make a list  of  Indian  symbols,

especially  the  religious ones, that should  be  excluded

from  commercial use.  We need to create an  awareness  of





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460

                                                      16


these symbols and explain why it is offensive to use them.

Every  company  and  official  organization  needs  to  be

furnished with such a list so there will not be the excuse

of pleading ignorance.  The following are a few examples:

          Sacred religious symbols;

          Sacred religious words;

          Tribal insignia;

          Names of Tribes;

          Indian words of significant social, religious or

tribal meaning.

          Tribes  should furnish list of images,  symbols,

insignias  and words they would like to see  protected  by

law from being used in commerce or government (e.g.,  like

the  Zia  Sun  Symbol  on  the  New  Mexico  state  flag).

Especially in this day of internet and cyberspace, Indians

have  to  be doubly vigilant as any of  their  images  and

words  will  be  and  are used there,  as  well,  to  lure

customers   to  web  sites  that  sell  items  that   have

absolutely nothing to do with Indians.  It is exploitation

of Indians for commercial purposes or disrespect and theft

of  Indian  symbols.   It  is  very  hard  to  fight   big

corporations  who blatantly and unfeelingly go  ahead  and

use Indian insignia.

          For  example:  Tribal Voice, if any of you  have

been  on  the  web site, is a commercial  site  funded  by





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460

                                                      17


McAfee Associates, who make network security software  for

the  U. S. Government.  It has no native association,  but

to market the software package called Pow Wow.  This  same

company  markets pornography, and one of the  pornographic

characters  is  called "Heyoka," a word  in  my  language.

Heyokas  are sacred, not twisted perversions like the  one

found on this site.

          Here  in San Francisco, there is an  adult  club

downtown  called  "Crazy  Horse."  By  the  way,  whatever

happened  to  the law here in  California,  introduced  in

1995, AB 1521, to outlaw Crazy Horse Malt Liquor?  How  on

earth  is  it possible or a nightclub to carry  that  same

name?

          Also offensive are American Indian Barbie  Dolls

and    Pocohontas   Barbies.    Disney,    supposedly    a

family-oriented   organization,  is  one  of   the   worst

offenders.

          Indians  are  always told  that  sports  mascots

honor  Indians.   Where  is  the  honor  in  a  name  like

Redskins?   Where  is the honor in a  grinning  stereotype

like the Cleveland Indians's mascot?  How do you think  it

makes Indians children feel?  How does it make  non-Indian

children  feel?   It teaches them racism.  No  wonder  the

people  of  America are racist.  Racism is taught  in  the

schools of America.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        18


          Stereotypical greeting cards, like Leanin' Tree,

are  offensive.  Also very offensive are  Native  American

Tarot  Cards, which mixes symbols of different nations  on

one  card.   It is complete disregard  for  the  religious

significance   or   our  people,  or,   even   worse,   of

disinterest.

          Again,  lack of copyright protectioon  makes  it

possible  for  these products to be sold  without  even  a

single Indian Nation, or any organization, benefiting from

the any of the proceeds.  The money goes into the  pockets

of  greedy,  exploitative companies, who are too  lazy  to

think of their ideas.

          I  want  to thank you for permitting --  I  just

found out at the last minute that this was happening,  but

I want to thank you for inviting me.

          ASSISTANT SECRETARY DICKINSON:  Thank  you,  Ms.

Mathias.

          MS. MATHIAS:  I  want  to show you some  of  the

offensive  things  on the internet:   Sparky,  Pocohontas,

and all these images of Chief Wahoo.  This is how to  tell

a Jew.  It's a book.  And what would America do if we  had

Africans -- I mean, Black people would not stand for it.

          ASSISTANT SECRETARY DICKINSON:  Ms. Mathias, let

me ask you a couple of questions.  One of the questions we

posed  was how to define what the official insignia  of  a





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                          19


Native American Tribe would be.  Do you have any  thoughts

on that, how we could tackle that question?

          MS. MATHIAS:  What would you say to that one?

          MS. EDWARDS:  What was the question again?

          ASSISTANT SECRETARY DICKINSON:  One    of    the

questions  we have before us about the legislation is  how

to define what the official insignia of a Native  American

Tribe is.  The suggestion has been made that we  establish

a registry, for example, of official insignia, so that our

trademark  examiners will know what the official  insignia

are  when others may seek to register them.  How would  we

-- what is your best advice on how we could define what an

official insignia is?

          MS. MATHIAS:  I would say with the religious  --

see,  before 1934, we had our own council, and  they  were

all  councils  where the people were involved,  that  were

selected by the people.  Now, they have councils that  are

like  the  U. S. Government.  They call them  IRA,  Indian

Reorganization  Acts, which is really the Howard  Bill  of

1934.   That's the bill that came out of it.   Since  that

time,  we  have Tribal Councils that are like  the  U.  S.

Government.

          So,  I would say go to the  traditional  people.

Those are the people who know and who still -- it's like a

secret  society,  almost, you know.   The  traditionalists





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        20


don't  go  out  there advertising.   You  don't  see  them

advertising.  Just like you see -- they're against  people

who  are  what we call charlatans or new-agers,   who  are

taking our spirituality and selling it.  And they do  take

some of our symbols and sell it, you know, like -- I don't

know.

          There's  some  organizations,  like  the  Harley

people,  you know.  They're all over the world.   They  go

all over the world and sell our spirituality.  And there's

some  Indian people who do it, too, you know because  they

have  the  White organizations backing  them  with  money.

They're  being used.  There are a few individuals who  are

being used to do that.

          So,  my answer to that question would be  to  go

back  to  the  spiritual  leaders,  to  go  back  to   the

traditional people.

          MS. EDWARDS:  You know, they would have --

          ASSISTANT SECRETARY DICKINSON:  I'm sorry.  This

is Ms. Edwards.

          MS. EDWARDS:  Yes, I'm sorry.

          Each tribe has their own, you know, their own --

what do you call it? -- seal.  So, if it's something  that

comes  from Keweenaw Bay, you know, and if it's  official,

it  would have that seal on there, approved by.  But  each

nation  has their own seal.  So you're talking to all  the





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         21


tribes, so --

         ASSISTANT SECRETARY DICKINSON:  So one way to --

         MS. EDWARDS:  Submitting their --

         ASSISTANT SECRETARY DICKINSON:  Submitting  their

official seals?

         MS. EDWARDS:  Yes, I would think that would be --

that was one way to look at it.

         MS. MATHIAS:  We  just got these last night at  8

o'clock.

         MS. EDWARDS:  Yeah.

         MS. MATHIAS:  It  was  about 8  o'clock.   And  I

asked for them, you know, from your office, but she didn't

know what I was talking about, your secretary.

         ASSISTANT SECRETARY DICKINSON:  Just  for  future

reference, this is also on our web site.  So, if you  ever

need anymore information from us, our web site has all  of

this,  and it's been posted there for probably a month  or

two at this point.

         MS. EDWARDS:  So  your main job is to find a  way

to, to have a stamp that signifies not made in Japan,  but

made by --

         ASSISTANT SECRETARY DICKINSON:  We're   here   --

we've been asked by the Congress to actually answer a  few

questions;  one of them is:  How would we define  official

insignia?





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                          22


         MS. EDWARDS:  Well,  you can't identify, I  don't

think,  because each tribe is -- that's been our  problem,

because  of their nationalism.  You know, each  tribe  has

their own --

         MS. MATHIAS:  We're all different nations.

         MS. EDWARDS:  Yeah.

         MS. MATHIAS:  We have our own --

         ASSISTANT SECRETARY DICKINSON:  Would one way  be

for us to inquire of each of the nations --

         MS. MATHIAS:  Each nation.

         ASSISTANT SECRETARY DICKINSON:  --   what    they

regard  as  their official insignia, and that  they  would

send in a copy of the seal or the other insignia?

         MS. EDWARDS:  To me, that would make sense

         MS. MATHIAS:  Yeah.

         MS. EDWARDS:  Because we all have our own  seals.

You  know, Keweenaw Bay has their own seal.  And  whatever

paper comes out of their head, you know, their letterhead,

you  know, has it on there.  So, to me, that would be  the

main thing.

         What  other  questions  are looking  up  for  the

Congress?

         ASSISTANT SECRETARY DICKINSON:  I  think   that's

the  principal one we talked about.  The other is  how  to

establish  a -- if we establish a registry, how  we  would





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460

                                                          23


organize that registry and then use it.

         MS. EDWARDS:  Well, it sound like you're  putting

everything  on  the  internet.  So that seems  to  be  the

superhighway of the future.

         I would like to know why -- I mean, you don't pay

attention to it anyway.  Didn't Congress pass a law saying

that  Native  American  jewelry has to be --  to  call  it

Native  American,  it  has to be  stamped,  you  know,  or

something,  Native  American jewelry, official.   And  you

have to have a card saying your registered with the tribe.

Whatever happened to that law?

         MS. MATHIAS:  That was the Arts and Crafts Law.

         MS. EDWARDS:  Yeah.    I  mean,  we  have   stuff

selling --

         ASSISTANT SECRETARY DICKINSON:  That law has been

cited to us as part of these hearings --

         MS. MATHIAS:  Yeah.

         ASSISTANT SECRETARY DICKINSON:  --   so  we   are

aware of that.

         MS. MATHIAS:  Because  we  have  trouble.   Every

pow-wow  we  go to, we have trouble.   There  are  people,

non-Indian, selling our things.

         ASSISTANT SECRETARY DICKINSON:  One  question   I

had  was:  You mentioned the concern you had over some  of

the derogatory nature of registered marks.  I just  wanted





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         24


to, in case you hadn't been aware, the Trademark Trial and

Appeal Board, which is one of out boards at the Patent and

Trademark  Office, has cancelled several marks of  one  of

the  professional  football teams,  based  in  Washington,

because the --

         MS. MATHIAS:  The Redskins.

         ASSISTANT SECRETARY DICKINSON:  --  the  name  of

the  team was found by the Board to have  been  derogatory

under section 2(a) of the --

         MS. MATHIAS:  What's  going to happen  now?   Are

they still going to be able to sell their paraphernalia?

         ASSISTANT SECRETARY DICKINSON:  Well,   we   have

cancelled  the  registration,  and they,  the  owner,  the

previous  owner  of  the registration,  has  a  number  of

options, including appeal.  And, basically, the ball is in

their court to --

         MS. MATHIAS:  How long will that take?

         ASSISTANT SECRETARY DICKINSON:  I  don't  have  a

good feel for that.  I'd say probably several years.

         MS. EDWARDS:  So they had registered it -- right?

--  and  said it was their exclusive  use  of  "Redskins."

That's allowed?

         MS. MATHIAS:  What year was that?

         ASSISTANT SECRETARY DICKINSON:  I'm   not    sure

exactly.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         25


         MS. MELTZER:  In 1934.

         ASSISTANT SECRETARY DICKINSON:  Are   there   any

other  -- well, do either of you have any further  comment

or  statement  for  the record?   Do  we  have  any  other

witnesses?  Those are my final two questions.

         MS. MC COY:  I'm Melody McCoy.  If the Patent and

Trademark  Office  would  permit, I have  a  copy  of  Ms.

Fuller's testimony.  I'd be happy to give it.

         ASSISTANT SECRETARY DICKINSON:  That   would   be

fine.  Would you come forward?

         MS. MC COY:  Sure.

                       STATEMENT OF

                  MELODY L. MC COY, ESQ.

               NATIVE AMERICAN RIGHTS FUND

                       ON BEHALF OF

             TUOLUMME BAND OF ME-WUK INDIANS

         MS. MC COY:  My  name  is Melody  McCoy.   I'm  a

staff  attorney with the Native American Rights  Fund,  in

Boulder, Colorado.

         The  Native  American Rights  Fund  represents  a

tribe  located  near  here, the Tuolumme  Band  of  Me-Wuk

Indians.   That tribe has turned to us for  representation

in  protecting  a  number  of  aspects  of  their   tribal

intellectual  property  rights.   And,  so,  we  have,  in

response to the Patent and Trademark Office's request  for





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        26


comments,  filed  comments on this issue  about  trademark

protection.

         The  Tribe's  cultural resource  specialist,  Ms.

Fuller,  was unable to be here today; but she did  prepare

testimony for today; and it goes like this:

         The  Tuolumme Band of Me-Wuk Indians  appreciates

this opportunity to testify today before the United States

Patent  and Trademark Office on the  Statutorily  Required

Study of Official Insignia of Native American Tribes.  The

Tribe  is  very  pleased  that  federal  law  may   extend

trademark  protection  to tribal insignia.   Our  comments

today  address  why  and  how  this  extension  should  be

accomplished.

         There are over 550 federally recognized  American

Indian  and  Alaskan Native Tribes in  the  United  States

today.    Each   tribe  has   a   government-to-government

relationship  with the United States.  While we no  longer

enter into treaties together, we'er still partners in many

ways, based on our historic relationship and transactions.

Congress  recognizes  tribal  sovereignty  and  its  trust

responsibility  to tribal sovereigns in exchange  for  the

land, water and other resources that we have ceded to  the

United States since the country was founded.

         In this modern era of a federal policy  of Indian

Self-Determination,  Congress  has passed many  good  laws





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         27


regarding tribal sovereignty, Indian health and  education

and  Native American natural resources.  We  also  commend

Congress'  efforts  to  protect  our  traditional   tribal

cultures.  They may not be perfect, but laws, such as  the

Native American Languages Act, The Indian Arts and  Crafts

Act,  and  the  Native  American  Graves  Protection   and

Repatriation  Act,  at least recognizes  that  our  tribal

cultures,  identities,  and  values are  critical  to  our

survival.

         Similar protection needs to be afforded to tribal

intellectual property.  The laws just mentioned, like  the

Indian Arts and Crafts Act and the Native American  Graves

Protection and Repatriation Act, as well as other  federal

laws,  protect many tangible aspects of our culture,  such

as  arts  and crafts and human remains  and  funerary  and

sacred  objects.  But there is no counterpart federal  law

protection  for our intangible property -- our songs,  our

dances, our images, and our symbols.

         These  intangibles are a vital and valuable  part

of  tribal  cultural  and political  integrity.   That  is

especially  so in the case of the Me-Wuk Tribe,  which  is

small;  we have only 333 members.  Very little is left  of

our  aboriginal territory, only a Rancheria of  335  acres

located  in East Central California.  We are not a  gaming

tribe.    Rather,  we  have  identified  our   traditional





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         28


cultural  heritage as one of our most valuable  resources.

We want to preserve and manage our history and culture  in

a professional and orderly manner that takes into  account

our traditions and sovereignty.

         To  accomplish this goal, we have many  projects.

We  are  very  active in repatriation  efforts  under  the

Native  American Graves Protection and  Repatriation  Act.

We have a Tribal Archives and Records Project.  We plan to

develop a Tribal Cultural and Intellectual Property Rights

Code.    Ultimately,  we  want  to  establish   a   Tribal

Interpretative Center that would house an archival center,

a curation facility, and a museum.  The Center would serve

our tribe as well as the neighboring Central Sierra Me-Wuk

Tribal  population,  which  is about  4,000,  as  well  as

scholars and the general public.

         Our  tribal  efforts  must  be  supplemented   by

federal  law,  especially  in  the  area  of  intellectual

property   rights.    As  a  general  rule,   our   tribal

jurisdiction  only  extends within our  tribal  territory.

This leaves vast areas unprotected.  We have, in fact, had

many  bad experiences with misappropriation and misuse  of

our tribal intellectual property.  Songs and designs  have

been stolen, taken well beyond our Rancheria, and used for

profit  by  non-Indians,  or not  members  of  the  tribe,

without tribal permission or recompense.  It seems that we





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         29


are powerless to stop these actions.  We would be remissed

and  doing  a  disservice to our  elders  and  our  future

generations if we did not try to change this situation.

         We  have  already submitted written  comments  to

your  agency  on this matter.  And, now,  I  will  briefly

summarize the highlights of these comments.

         Unlike  the  states, the Federal  Government  and

foreign nations, Indian Tribes can register their insignia

under  current  trademark law.  This  registerability  for

tribes should be preserved.  The law should be amended  to

direct  the  Patent and Trademark Office  to  establish  a

separate registry of tribal official insignia.

         The law should also be amended to help tribes  in

instances where their insignia are sought to be registered

or are misused by third parties.  Any future  registration

and  use  of tribal insignia by third  parties  should  be

prohibited unless a tribe consents to the registration  or

use.   In addition, tribal insignia that has already  been

registered or used by third parties without tribal consent

should be subject to cancellation.

         Our   proposed  definition  of  Tribal   Official

Insignia is narrow.  The insignia must include only  those

emblems, or seals, or designs, that represent the  tribe's

governmental authority.  The insignia must be distinctive,

and  reasonable likenesses should be protected,  as  well.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        30


Most importantly, the insignia must consist of words  plus

graphic  elements.  Words alone, including  tribal  names,

should not be considered insignia.  However, we urge  that

trademark   law   and  other  federal  law   be   reviewed

accordingly   to  determine  what,  if   any,   additional

protections should be afforded to tribal names.

         So,  we  are proposing that  trademark  law  give

tribes  the  exclusive  right to register  and  use  their

insignia.  This is justified by the unique  federal-tribal

relationship,   the   trust   responsibility,   and    the

congressional  goals of tribal economic  self-sufficiency.

Our  attorneys in this matter, the Native American  Rights

Fund,  are submitting separate testimony that details  the

law and policy reasons for our proposal in more detail.

         We  thank  you for this  opportunity  to  testify

today on this important matter, and we are happy to answer

to  any questions or provide further information  to  help

you.

         ASSISTANT SECRETARY DICKINSON:  Thank  you   very

much,   Ms.   McCoy.   That's  excellent   testimony.    I

appreciate,  in particular, the balance of interests  that

it addresses.  Do you have time for a few questions?

         MS. MC COY:  Yes.

         ASSISTANT SECRETARY DICKINSON:  Let  me ask,  are

you aware of tribes, and does the Tuolumme Band of  Me-Wuk





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                       31


Indian Tribes, have an official insignia?  Have they taken

official  action, for example?  Or, how would they  do  --

how  would  you suggest we consider  what  constitutes  an

official insignia when it's submitted to us?

         MS. MC COY:  I  think the answer to that is  that

the Tribe has a logo that it uses.  It primarily  consists

of  a  the  acorn  depicted in a  way  with  some  of  its

traditional basketry.  I can give you a copy of that. This

is,  I  think, what they would consider  their  logo.   In

addition to that, some tribes have no just a logo, per se;

but  they have something more resembling  what  non-tribal

governments would call a seal or a flag.

         ASSISTANT SECRETARY DICKINSON:  Right.

         MS. MC COY:  And most tribes, of which I am aware

--  and I'm speaking now not necessarily on behalf of  the

Me-Wuks; but from my experience in working with tribes  --

they do have seals or flags.  How these are adopted by the

tribes, as a matter of their internal processes, in  other

words,  whether  they  use elders,  or  whether  they  use

artists,  or  whether they use their  own  government,  it

seems to me is a matter for the tribe.

         ASSISTANT SECRETARY DICKINSON:  Right.

         MS. MC COY:  But  once the tribe agrees  on  that

and  presents it to a federal agency, like the Patent  and

Trademark   Office,  then,  it  seems  to  me,  it's   the






JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         32


responsibility  of  the  Patent and  Trademark  Office  to

consider  that the official -- unless the  tribe  provides

notice that we're changing our symbol.

         For  example:  I would think that, just like  any

other registering of a trademark,  or when the Patent  and

Trademark  Office  considers, for example,  the  state  of

California  saying  that this our official  seal,  and  it

takes  the  government's word for that,  the  same  thing,

though,  I think is required in your looking at  trademark

registerability,  which is:  Whether it's been  used  and,

you  know,  will be used in commerce, or it's  used  in  a

manner by the government.

         Same  thing.  I mean, if the tribe today were  to

come  forward and say:  Oh, we consider the Nike Swoop  as

our official tribal insignia, I would think that there are

a  normal  means  already available in  the  law  for  the

Patent and Trademark Office to review that and question it

appropriately.   So I don't think there really will  be  a

problem.

         I  think the real problem is not so much  in  how

the tribe decides to present its, or decides on its, seal,

or logo, or insignia.  The real issue -- there may be some

disputes between tribes.  I mean, suppose you have  tribes

that,  you know, for whatever reason they both  claim  the

acorn as a symbol.  You know, again, then it would have to





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        33


be  distinctive.  The tribe, it would virtually be on  the

tribe to say:  This is the way that we consider the acorn.

But  that is no so different.  How many states  use  stars

and stripes, moons, flowers, like that, too; or, you know,

other graphic elements.

         So  I really don't think there would be too  many

inter-tribal  disputes,  because, as has  been  said,  you

know,  tribes are unique:  They have their  own  histories

and cultures.

         ASSISTANT SECRETARY DICKINSON:  Well,   I   think

that was very valuable testimony.  Thank you.  All of  the

testimony today was very, very valuable.

         Are  there  any questions from any of  the  panel

members?

         MR. WALSH:  I have a question --

         ASSISTANT SECRETARY DICKINSON:  Mr. Walsh.

         MR. WALSH:  --  I  could ask Ms.  McCoy,  just  a

clarification  on the portion of the testimony that  dealt

with what an insignia is.

         It  says,  in the written part  it  says,  "Words

alone  should  not be considered insignia."  And  it  also

says,  "...  the  insignia  must  consist  of  words  plus

graphic."  I just wanted to clarify.

         The logo that you showed us for the Me-Wuk  Tribe

doesn't  have  any words in it.  Would a  graphic  element





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        34


alone be okay?

         MS. MC COY:  I would think so.

         MR. WALSH:  Okay.

         MS. MC COY:  Yes.   Again, you know, as  long  as

it's  not  a Nike Swoop.  But in and of  itself,  I  would

think  that there is no requirement that -- I don't  know,

but, you know, the, for example, the American Flag has  no

--  well,  that's not a good example, because  that's  not

registerable  because it's the American Flag.  But  I  can

think of situations where there would be no reason to have

the words.  So, no.  It's the opposite, though.  The words

alone I don't think are a good subject for this particular

task  that  Congress  has assigned the  agency.   I  think

that's a separate, separate issue.

         MS. EDWARDS:  But they do use "Made in USA,"  and


"Made in China."

         MS. MC COY:  Right.

         MS. EDWARDS:  Made by Me-Wuk or Ojibwa.

         MS. MC COY:  Right,  but  not  as a  --  it's  my

understanding that's not necessarily a trademark.  I would

think, though, that --

         ASSISTANT SECRETARY DICKINSON:  Let me ask you  a

question along that line.  Are you aware of any tribes  in

your experience, or maybe the Tuolumme Band, who may  have

sought to register their own trademarks as trademarks  for





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         35


various goods or services?

         MS. MC COY:  I don't know of any tribes that have

registered  their  official  so-called  fields  or  flags.

Although,  I see tribal seals, flags, and  the  letterhead

logos routinely throughout Indian Country.  I do know that

we  did do, in preparation for our representation  of  the

Tuolumme  Tribe  in this matter, we have run a  search  of

tribal  economics enterprises that are  registering  their

trademarks  and  logos.  We came up with,  I  think,  just

short of 200 entries that appear to be by tribal  economic

enterprises,  most notably the gaming facilities that  are

registering  those.   So someone is  advising  the  tribal

economic   enterprises  on  that  matter,  and  they   are

registering,  I assume, without problems,  and  proceeding

accordingly on the commercialization and merchandising  of

that.

         ASSISTANT SECRETARY DICKINSON:  Yes.

         MS. MC COY:  But  I  am not familiar  with  --  I

think  that  most tribes are unaware of the need  for  the

process  to go through to register their seals  and  flags

and  letterheads.  It just has not been a problem  and  it

gets  intertwined  with the issues of the  use  of  tribal

mascots, names and symbols of that, as well, and images.

         So, again, for purposes of this, which I know  is

dealing  just  with the official insignia, and  I  presume


JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         36


flags,  as well, I don't know.  To my knowledge,  I  don't

think there are any registered.

         ASSISTANT SECRETARY DICKINSON:  We    have    had

brought  to  our attention at least one  example  where  a

tribe  had  registered their name for  various  goods  and

services,  both I think government services and  clothing,

if I'm not mistaken.  I don't remember, unfortunately, the

exact mark.

         One  thing which this hearing might also help  to

do  is  bring to the various Tribe's  attention  that  the

marks   themselves  are  registerable   independently   as

trademarks, as you had mentioned in your testimony.   And,

just  to  give a little pitch, we now register --  we  now

accept  applications electronically over the  internet  on

our  web  site, which is www.uspto.gov.   And,  for  $245,

we'll take your credit card --

         MS. EDWARDS:  How much?

         ASSISTANT SECRETARY DICKINSON:  Two  Hundred  and

forty-five dollars, but hurry.

         MS. MC COY:  One  thing, if I could add  briefly,

is  that, for most tribes, you also have to  realize  that

the  idea of registering a seal, why do it?  They  haven't

had a problem with that.  They may market a few  T-shirts,

a  few  key chains, things like that; but no one  else  is

probably doing that.





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                         37


         I  think more of the issue comes in  when  you're

dealing  with, for example, the Me-Wuk Tribe's acorns  and

style of basketry.  You know, for some of that, they would

not -- the trademarking comes in, I think, for enterprises

that    are    interested   in   economic    profit    and

commercialization.  For some tribes, they would say:   Why

in  the world would we ever want to register  our  acorns.

Wee would never sell them.  We don't, you know, we're  not

in that business of it.

         So, again, you have to understand where the tribe

is  coming  from  when  they're  asked:   Have  you   ever

considered registering this?  And I think, too, that,  for

the  same  reason, with all due respect, they  might  say:

Why  should  we  register anything  with  the  government?

Every time we've registered something with the government,

it  has resulted in a loss for us.  So perhaps this is  an

opportunity to turn that around.

         ASSISTANT SECRETARY DICKINSON:  Thank  you   very

much, Ms. McCoy.

         Is there any further testimony?

                             [No response.]

         Hearing none, I want to thank everyone for --

         MS. EDWARDS:  I just wanted to say --

         ASSISTANT SECRETARY DICKINSON:  I'm sorry.

         MS. EDWARDS:  --  have  you written  to  all  the





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                          38


tribes?  And, instead of going to San Francisco, where are

all the tribal people going to -- you know, except for her

-- do you know what I mean?

         MS. MC COY:  I  found out about this  hearing  by

submitting   the   comments.   I've  been   watching   the

legislation  since  it was passed in October,  because  my

client has directed me to follow this issue through.

         ASSISTANT SECRETARY DICKINSON:  We've        been

directed  to  make  sure this was as widely  known  as  we

could,  through Senator Bingaman's office, in  particular,

and  by the legislation.  We've  had it on our  web  site.

We  sent out notices.  We had a very healthy  response  in

Albuquerque,  and we'll have another hearing  this  coming

week  in  Washington, D. C.  It will be the third  of  the

three.

         So,  if you're aware of additional witnesses,  or

additional   tribes,  or  others,  who  wish   to   submit

testimony, we will be accepting written testimony until --

         MS. MELTZER:  July 30.  And just to let you know,

we  have some limitations on us, as a federal agency.   We

can't solicit individuals, necessarily, to --

         MS. EDWARDS:  That's  not  individuals,   though.

The  tribes,  the tribal councils, the chairmen,  or,  you

know --

         ASSISTANT SECRETARY DICKINSON:  We're not allowed





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                          39


to solicit witnesses, I'm afraid.

         MS. EDWARDS:  But the way to do that is to  write

a letter to the tribe, saying what's happening, you  know,

and do they wish to --

         ASSISTANT SECRETARY DICKINSON:  Very         good

suggestion.  Thank you.

         Any other comment or suggestions?

                             [No response.]

         I  want to thank all the witnesses for  appearing

today,  taking  time  out of what I  know  are  very  busy

schedules.   We appreciate the opportunity to accept  this

testimony  today.   It is very valuable to us,  as  we  go

about  our deliberations.  As Ms. Meltzer pointed out,  we

will  be accepting written comments until July 30, and  we

will have our report prepared for Congress --

         MS. MELTZER:  By September 29.

         ASSISTANT SECRETARY DICKINSON:  So    we     will

attempt  to do this as expeditiously as possible.  So  you

will hear back as quickly as possible.

         The transcript from today's testimony will be  on

our  web site fairly quickly, I hope, as will the  results

and  our  report.  So it will be  publicly  available  and

hopefully easily accessible on the internet, as well as on

paper.

         MS. MELTZER:  If anybody here would like to  have





JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                          40


a  copy of the transcripts, not only will it be  available

on the web site, but we can fax to you or mail it to you.

         MS. EDWARDS:  Okay.

         MS. MATHIAS:  Okay.

         MS. EDWARDS:  That's  be  good.  Do you  have  my

address?

         ASSISTANT SECRETARY DICKINSON:  Thank  you   very

much.  We appreciate it.

         This hearing is adjourned.

         (Whereupon,  at  10:55  a.m.,  the  hearing   was

concluded.)



JAMES W. HIGGINS, CVR
San Francisco, California
(415) 621-2460


                                                        41




                  C E R T I F I C A T E


      I hereby certify that this is the transcript of  the

proceedings held before the


        UNITED STATES PATENT AND TRADEMARK OFFICE

on Monday, July 12, 1999 at San Francisco, California in ,

and  that this is a full and correct transcription of  the

proceedings.


JAMES W. HIGGINS
Certified Verbatim Reporter
San Francisco, California
(415) 621-2460
United States Patent and Trademark Office
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