1996 WILL BE A VERY APPEALING YEAR!!
On December 27, 1995, the Estate of Tasunke Witko filed its appeal brief
to the Rosebud Sioux Tribe Supreme Court to obtain jurisdiction over the beer
companies for their misappropriation of the Crazy Horse name.
On December 28, 1995, the Minnesota Civil Liberties Union (MCLU)
announced that it is filing an appeal and constitutional challenge on behalf
of the beermakers against the Minnesota law which prohibits the false and
misleading use of an American Indian leaders name on malt beverages (such as
"The Original Crazy Horse Malt Liquor" and "Chief OshKosh Beer"). The MCLU
is bringing its well funded legal strength to protect the multi-million
dollar brewing interests of G. Heileman Brewing Company, and the Brooklyn
N.Y. based Hornell Brewing Company and Ferolito, Vultaggio & Sons against
the State of Minnesota and the Lakota Estate of Tasunke Witko (Crazy
Horse).
Apparently, the MCLU will attempt to overturn the revocation of brand
label registration issued by the Minnesota Commissioner of Public Safety,
Michael Jordan, on November 28, 1995, by claiming that the 1st Amendment of
the Constitution guarantees the beverage companies of a right of "commercial
free speech." They will likely claim that the beer companies' right of
"commercial free speech" allows their use of Indian names on alcohol
products, even if the families, who hold the legal rights to control the use
of their ancestors' names object to such use and have refused any
authorization.
The Minnesota law does not prohibit the use of Indian names, only the
"false and misleading" use of such names. If a company has permission, then
the brand label registration is allowed. No permission, no brand
registration. Historically, the property of Indian people has been seen as
part of the "public domain," that is, "simply free for the taking." The
State of Minnesota is a Public Law 280 state, which means that the federal
government has delegated certain rights and responsibilities to the state
with regard to legal jurisdiction. This is one occasion where the state has
acted affirmatively to protect the property rights of Indian people within
its borders. Minnesota is an alcohol control state, and this state action
occurred in the highly regulated area of alcohol control.
To register your automobile with the state, you must show proof that
you own it, and that have the legal property right to the vehicle. Now the
state requires that when you register your beer label, and it has an Indian
name on it, you must show proof that you own the rights to the Indian name,
and that the rights to the name belongs to you.
Their applications for federal trademark registration have been refused
twice. The beer companies have offered no proof of ownership to the name.
They are reported to have thought it up after seeing "Dances With Wolves."
They apparently improved on the advice of Kevin Costner from another of his
films, "Field Of Dreams": "Name it after an Indian and profits will come!!"
Don Vultaggio is the co-owner of Hornell Brewing and of Ferolito,
Vultaggio & Sons, which maker "AriZona Iced Tea" products, which also use
Indian designs to market non-alcoholic beverages. Mr. Vultaggio testified
at the hearing in Minnesota in April, and contradicted his own previous
testimony submitted in a federal court action, regarding his company's
intention in selecting and using the name of "Crazy Horse" on the label.
In federal court, he gave sworn testimony that: "We selected the name
to celebrate a great Native American Chieftain." Yet, in the legal
proceedings in Minnesota, under oath, the following exchange took place on
March 14, 1995, in St. Paul, Minnesota (Deposition of Dominick J. Vultaggio
3/14/95 pp 107-109, 133):
Attorney for the Estate of Tasunke Witko, Robert Gough reading off the
back label of the bottle of malt liquor, questioned Mr. Don Vultaggio:
Q. Sitting Bull, Crazy Horse and Custer are three names mentioned
in that text?
A. Yes, they are, sir.
Q. Crazy Horse is named between Sitting Bull and Custer?
A. Yes, that name is.
Q. Are these names that you refer to earlier as all participating
to your knowledge -- in at least the Hollywood version of the
Little Big Horn Battle?
A. I don't know if Sitting Bull was portrayed. I know Anthony
Quinn was portrayed as Crazy Horse and Errol Flynn was Custer
and his wife was Maureen O'Hara. But other than that, I don't
know who Sitting Bull was in that movie, or it he was.
Q. Do you have in any other Crazy Horse you might have been
making reference to, other than the one that you testified to
was involved in the Battle of the Little Big Horn?
A. The people who you claim are the people -- and they certainly
are people -- they are what I've conjured up as to who they
are and where they are. My knowledge of the West was of a
person called Crazy Horse and a Sitting Bull and a Custer, no
doubt about it. Is my knowledge of the West accurate? Based
on Hollywood, I don't know how accurate that is. So if I am
describing a particular Indian on a Sioux reservation, no. I
didn't know that he existed. I didn't know where that Crazy
Horse that I knew of, where he lived. Or whether he really
lived, other than Hollywood. I had never read any novels
about him. I don't know where he grew up, when he was born,
when he died, who he led. So, I think in fairness, it's only
what we know and how we to ourselves describe the West. It
doesn't mean it's accurate. And to my knowledge, there's no
place called Dakota Hills.
Q. Are there any other inaccuracies?
A. I don't call them inaccuracies. They're just like anything
any artist has. That we are marketing a product and we are
creating an image accurate in our own mind. It is accurate in
our own mind. Accurate in the sense of historically accurate?
I don't know. I doubt it.
A Happy New Year to ALL!!