Four years after Indigenous man's human rights case, Cleveland removing 'Indians' from team name

Douglas Cardinal challenged team's name and logo when they played Toronto Blue Jays in 2016 ACLS

Four years after Indigenous man's human rights case, Cleveland removing 'Indians' from team name
Monique Jilesen, Margaret Robbins

Four years after they played the Toronto Blue Jays in the American League Championship Series, and renowned Indigenous architect and activist Douglas Cardinal brought human rights applications to prevent the display and broadcast of their name and logo, the Cleveland Indians are changing their name.

Owner and CEO Paul Nolan announced Monday the 120-year-old franchise was beginning the process of rebranding and finding a new moniker, one that will “better unify our community and build our legacy for a new generation.”

In 2016, Cardinal sought an injunction against the team, Major League Baseball and Rogers Inc., arguing transmission of the slur and racist imagery breached the Human Rights Code. He took his case before both the Canadian Human Rights Commission and the Human Rights Tribunal of Ontario.

Heard the day of the game, Cardinal was not granted an injunction. Justice Thomas McEwan found Cardinal failed to establish he would be subject to irreparable harm and that the balance of convenience favoured him. But the application did meet the first branch of the test. McEwan found “that there is a serious issue to be tried;” whether Cleveland’s name and logo discriminated against Cardinal while providing a service.

“This was probably one of the best losses of my career,” says Monique Jilesen, who acted for Cardinal. “Although a lot of consciousness has been raised by Indigenous people over the years about this issue, it was another opportunity to raise consciousness within sports, with fans, with the media, with everyone, about the impact that the use of imagery like this, and the name, would have on people like Mr. Cardinal.”

After the injunction hearing, the case went to the HRTO. Cleveland disputed the Tribunal’s jurisdiction but was unsuccessful, and the ruling was upheld by the Divisional Court.

Cardinal’s case was unique because, typically, similar actions will be brought in the intellectual-property realm – challenging whether the offensive word or imagery should be trademarked in the first place, says Jilesen, who is a partner at Lenczner Slaght Royce Smith Griffin LLP.

“While, interestingly, that trademark issue did feature in our case, particularly at the Divisional Court, the basis of our decision was that the use of the logo in the provision of services was a breach of Mr. Cardinal’s human rights,” she says.

“Whether, in fact, it did breach his human rights was never an issue that was decided. But certainly, I think it will continue to be a way of thinking about these issues for people in the future, as long as people are using imagery relating to people's race or culture, in terms of the delivery of services, like sports.”

Indigenous groups and their supporters have been calling on the team to drop its name for decades. Opening day at Cleveland’s Progressive Field is the annual host to protests by name-change advocates, and in 2014, the American Indian Education Center and a group called People Not Mascots filed a federal lawsuit against the team, seeking $9 billion in damages for “a hundred years of disparity, racism, exploitation and profiteering.”

The name change also follows a wider trend of professional sports teams shedding racist names and logos, including the former Washington Redskins and Edmonton Eskimos.

“There's other sports teams that are using similar imagery and names who are, hopefully, in the wake of this decision as well, re-evaluating their names and logos in response to the Cleveland decision,” says Margaret Robbins, a Lenczner Slaght litigator who also represented Cardinal.

The team began as the Cleveland Blues in 1901. After switching to the Naps and then the Broncos, they became the Cleveland Indians in 1915. The name originated from the nickname of the city’s former National League club, the Cleveland Spiders. Journalists began using the epithet to refer to the Spiders after Louis Sockalexis, a member of the Penobscot Nation in Maine and the first Indigenous National League ballplayer, signed with the team in 1897.

Sockalexis, who was also a stand-out in football and track-and-field, made a splash with the Spiders, according to David Fleitz, writing for the Society for American Baseball Research. Playing well in his rookie year, Sockalexis was a “sensation,” boosting attendance at both home and away games. But Fleitz quotes a May 1897 Sporting Life article to show the odious reality behind the rise in ticket sales. Fans came to jeer and harass Sockalexis, he was mocked in newspaper sports sections with “hideous looking cartoons,” but he “played good, steady ball” and was “a factor in nearly every victory thus far,” said the article.

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