Tasunke Witko, a.k.a. Crazy Horse, was a medicine man, an implacable enemy
of the United States, and a brilliant guerrilla fighter. However, times
change and yesterday's foe becomes today's marketing gambit; the name of
the legendary Oglala Lakota chief is now popularized on bottles of malt
liquor.
This ploy doesn't sit well with Tasunke Witko's heirs and other Native
Americans, who say that associating Crazy Horse and liquor is a sacrilege.
The 1994 Minnesota Legislature heard their concerns and passed a law that
essentially bans the sale of Crazy Horse malt liquor in the state. However,
ferment over the issue continues.
Hornell Brewing Company, the Brooklyn-based owner of the Crazy Horse
brand, and G. Heileman in La Crosse, Wisconsin -- brewing and bottling the
booze under contract with Hornell -- have contested an order by the state
Department of Public Safety's (DPS) liquor control division to clear their
bottles off liquor store shelves. Technically, as of Aug. 1, the law
revoked state approval of "brand label registration" for any malt liquor
that "states or implies in a false or misleading manner a connection with an
actual living or dead American Indian leader." Under the state's contested
case hearing process, Crazy Horse malt liquor can still be sold in Minnesota
while the Hornell appeal is pending.
A preliminary hearing was held on Oct. 6 in Minneapolis before
administrative law judge Allen E. Giles. A petition to intervene in the
case was presented by Bob Gough, a lawyer in Rosebud, So. Dakota, who
represents Seth Big Crow and the estate of Tasunke Witko. The petition on
behalf of the heirs asserts that the "use of the name Crazy Horse violates
the memory of their ancestor . . . Crazy Horse was vehemently opposed to
the use of alcohol by his people." Putting the spiritual leader's name on
the grog bottles is a "misrepresentation of Crazy Horse and the principles
for which he stood."
Representing Hornell and G. Heileman, Lawrence Fox, an attorney with
McDermott, Will & Emery in New York, argued that the state statute is an
"effort to impair the 1st amendment rights" of his clients. He said that a
Congressional ban on Crazy Horse malt liquor -- "a very dangerous effort
to legislate political correctness" -- was declared unconstitutional by a
federal court out east.
Minnesota has also taken the wrong tack in outlawing Crazy Horse suds from
the market, according to Fox. If you are offended by the name, "you don't
buy the product, and you encourage others not to buy it," he suggested.
In response to Fox's peroration, Giles said that he wouldn't be dealing
with the constitutional issue. "Let's focus on factual issues that are in
dispute," he told the attorneys.
On the face of things, it looks like Crazy Horse malt liquor violates the
state statute, but Fox contended that the language of the law is vague.
"What is a 'connection'?" he asked. "Is having the name Crazy Horse on the
bottle a 'connection'?" The full defense strategy will be revealed when
the case comes back before Giles for a hearing sometime in December.
American Indians and Barton Beers, Ltd. of Chicago will be watching the
case closely. Barton's Chief Oshkosh brand of brewski has also been banned
in Minnesota. (Oshkosh was chief of the Menominees in the first half of
the 19th century.) Although the brand approval for Chief Oshkosh has been
revoked, Lance Boelter of the DPS liquor control division said that no
action will be taken against Barton until the Crazy Horse malt liquor case
has been resolved.
-- Mordecai Specktor