May I take this opportunity to provide information with regard to two
matter:
1. Comments on the recent Minnesota decision to revoke the brand
registration in Minnesota, and
2. Efforts of several groups in applying economic pressure and
boycotts to the companies which produce the malt liquor.
Revocation of Brand Registration:
First our thanks again to all who responded to our call for information
on state liquor regulations with regard to following up on the recent
decision in Minnesota to prohibit alcohol brand registration which states or
implies, in a false or misleading manner, a connection to an American Indian
leader, living or dead.
By and large the press have reported the story favorably, although at
least one editorial in Florida took the position that Minnesota was being to
sensitive and too politically correct. It seems that the editor has missed
the point that there is no utlimate 1st Amendment protection for falsity.
An alcohol product label bearing the name of an American Indian leader,
living or dead, with his or her permission, or that of his or her family or
estate, would be perfectly legal and acceptable under the Minnesota law.
What is prohibited is not the use of the name, but the unwarranted use which
is then patently "false and misleading," particularly when the individuals
portrayed on the label have opposed such products.
We would be interested in receiving any other editorials or press
reports on the matter. Below is a letter sent to the New York Times
newspaper on December 8, 1995, in response to its December 6th news story.
To date I have not seen this letter published in the NYT, so I will make the
information available though the Internet.
* * * * * * * *
December 8, 1995
To the Editor
New York Times Company
229 West 43rd St.
NY, NY, 10039-3959
RE: Minnesota Ban of Crazy Horse Malt Liquor (Dec 6, 1995).
Dirk Johnson's article on the Minnesota administrative order
revoking the label registration of Crazy Horse Malt Liquor detailed
many of the circumstances surrounding the decision to prohibit the
falsely association of alcohol products with real American Indians,
people who happen to be more than mere Hollywood stereotypes. The
article did not mention that the registration of Chief Oshkosh Beer
was also revoked as a violation of Minnesota's statute prohibiting
the false or misleading use of such names on liquor brand labels.
Hornell was not singled out, although its malt liquor has clearly
distinguished itself as the most brazen offender.
Congressional hearings have pointed out that alcoholism among
American Indians is six times greater than that of the general
population, and that the leading causes of death for American
Indians, ages 25-44, are alcohol related. The real lives of both
the Lakota leader Crazy Horse and the Menominee Chief Oskhosh were
directly affected by the devastation alcohol brought upon their
peoples, and each is historically on record as having opposed the
use of alcohol. Neither happened to be a brewer, as may be the
case with many of the non-Indian people whose names and images
grace some popular beer labels. Thus, in the case of these two
malt beverages, each product makes a patently false connection to
the respective American Indian leaders, whose name and purported
image is captured on their labels.
Minnesota does not ban the use of names on grounds of
offensiveness, notwithstanding the outrageous nature of these
particular cases. Rather, violations rest upon the beer companies'
unwarranted appropriations which imply false or misleading
connections to the Indian leaders named. If a company obtained
permission from such persons or their estates, brand registration
would be permitted and sales allowed, since there would then be a
true connection or true endorsement. Apparently it is assumed,
albeit incorrectly, that historical Indian identities are simply
free for the taking, as neither brewery bothered to obtain
permission from the families of these respected American Indian
leaders prior to their appropriation.
Nationally, alcohol beverages are highly controlled under
various state and federal regulatory schemes. Under federal law,
alcohol brand labels are, by definition, excluded from federal
truth-in-advertising requirements. However, under the Twenty-First
Amendment, states have preeminent authority to regulate the sale of
alcohol within their borders. Minnesota's statute simply prohibits
false representations in this sphere. While it has overturned a
federal ban on the using the name, to date, Hornell has not
successfully overcome any state challenge to its distribution. The
First Amendment offers little protection for false and misleading
usage. Also, the Federal Trademark Office has twice rejected
registration of the Crazy Horse label which it deemed likely to be
disparaging and to bring the reputation of Crazy Horse into
contempt.
Hornell's spokeswoman, Francie Patton, is reported as saying
that "the company had voluntarily stopped distribution in Minnesota
and South Dakota, states with large Indian populations." Several
comments on this statement:
First, Hornell Brewing Company is a corporation owned by the
makers of "Arizona Iced Tea," one Ferolito, Vultaggio & Sons, of
Brooklyn, NY. Both products have been produced for them by the G.
Heileman Brewing Company. This enterprise is no stranger to the
marketing of Indian imagery. It was reported that last year's
sales of "Arizona Iced Tea" products grossed over $300 million,
with Mr. Ferolito and Mr. Vultaggio splitting some $60 million
after tax dollars from the sale of sugar water packaged with Indian
designs (NYT, October 28, 1995: A Feisty Brand's Newest Frontier:
Premium Colas).
Second, the record clearly shows that any voluntary stoppage
of distribution in Minnesota occurred only after numerous boycotts,
demonstrations, petitions drives, subsequent legislative and
administrative actions against the malt liquor, and the decisions
of individual store owners not to carry the product.
Third, the sincerity of Hornell's claims are somewhat
overshadowed by its challenge to the original decision of the
Minnesota Liquor Control Director to revoke the registration in
August, 1994. That challenge compelled a contested case hearing in
April, 1995, and which resulted in the Commissioner of Public
Safety's final order revoking registration. Hornell's indecision
regarding an appeal of this revocation seems to further undermine
any claim the company may make to the corporate moral high ground
for voluntarily stopping.
Fourth, Hornell originally announced that it would not offer
the product for sale in any state with a significant Indian
population. Yet it distributes in Arizona, California, Colorado,
Michigan, Minnesota, New Mexico, and Wisconsin. Hornell had
pressed for, but was refused approval to sell in Washington state.
These are all states with significant Indian populations and
reservations, and do not include the many eastern states with
established tribes and reservations, such as Connecticut, Maine,
Massachusetts and New York where the liquor is sold.
Lastly, as to the claim of voluntary stopping distribution in
South Dakota. According to an affidavit of Don Vultaggio,
Chairman, Corporate Secretary and co-owner of Hornell, filed in the
Rosebud Sioux Tribal Court, the malt liquor was never sold, nor has
Hornell ever done business in South Dakota. We are now pleased to
know that Hornell has voluntarily stopped distribution in a state
where it has never sold the product, and would encourage an
expansion of this practice to those states where distribution does
occur.
We do not oppose the sale of malt liquor or other alcohol
products, only its target marketing and the misappropriation of a
wholly inappropriate name. Would that a million men would march
into their neighborhood liquor stores and question this
unwarranted, racist and stereotypical labeling. Hecetu elo.
Sincerely,
Robert P. Gough
Attorney for the Estate of Tasunke Witko
P.O. Box 25
Rosebud, South Dakota 57570
* * * * * * * *
Groups Organizing Boycotts:
Several people have asked us about the boycott of the products made by
the G. Heileman Brewing Company, Hornell Brewing Company, and Ferolito,
Vultaggio & Sons, who continue to produce "The Original Crazy Horse Malt
Liquor." I provide the following addresses for information purposes and
direct any inquiries to these several independent groups. People interested
in this approach are advised to contact these groups directly.
In California:
Campaign Against Cultural Exploitation
1918 University Avenue, Suite 2A
Berkeley, CA 94710
(510) 843-8661/2
In New York:
American Indian Law Alliance
404 Lafayette Street, 2nd Floor
New York, NY 10003
(212) 598-0100
In Minnesota/Wisconsin:
Crazy Horse Defense Project
P.O. Box 16872 - Elway Station
St. Paul, MN 55116
(715) 425-0004 or (612) 870-9006
The Estate has appreciated the support and encouragement received from
these and many other groups, however, their efforts have been their own.
Pilamaya!!