A culture clash of symbolism, commercialism

Open a phone book anywhere in New Mexico. Turn to the business listings, look under Zia, the name given the sun symbol found on the state flag and a staggering variety of snacks, T-shirts, buildings and businesses. Across the state the Zia name and symbol are affixed to companies offering pest control, plumbing, window cleaning and security services.

The people of tiny Zia Pueblo in north central New Mexico, all 850 of them, are deeply offended. To them, the red circle with lines radiating in four directions is a religious symbol not to be used frivolously, certainly not something that should appear on the side of portable toilets, as it does in one case.

Until now, the Zia could only mount costly and uncertain legal battles to try to stop ompanies from appropriating their tribal symbol, but there may be legal relief for the country’s 500 Native American tribes.

Representatives from the U.S. Patent and Trade Office have been meeting with Native Americans across the country for the last week, preparing a report for Congress on a proposed change to federal trademark law that would allow tribes to register their insignia just as state, national and foreign entities do their official symbols.

The proposed law would not outlaw the use of tribal symbols, but it would prohibit businesses from trademarking them and thus discourage their use. At least one business group has opposed the proposal on the grounds that it would raise costs.

“The status quo is not adequate,” said Jeff Bingaman (D-N.M.), whose efforts on behalf of the Zia brought about the hearings. “Since we do provide legal protection for symbols of other government entities, it’s not a difficult argument to say we should do the same with tribes and pueblos. The reality is that there are some meanings that tribes and pueblos attach to their symbols that are more heartfelt and have more significance to them than a normal city seal.”

At the hearings, held so far in Albuquerque and San Francisco, tribal leaders have been bringing forth their sacred symbols, hoping they may find legal protection. In some cases, publicly discussing specific religious beliefs goes against tribal law.

“It’s a symbol that holds religious significance for us,” said Peter Pino, tribal administrator for the Zia, who do not seek to change the New Mexico flag. “What’s offensive is all the people using it for commercial purposes and gain.”

Even as some tribes say that their sacred symbols have been exploited commercially, others argue that a marketplace flooded with Native American brand names confuses consumers and inhibits tribes from developing their own commercial interests.

“In New Mexico, all of the pueblos and tribes are seeking to become economically viable, and their culture and history is essential to much of that development,” Bingaman said.

Q. Todd Dickinson, acting commissioner of the patent office, said the complex issue has drawn a larger than usual amount of public comment. At the first two of three scheduled hearings, Dickinson said the consensus from the tribes was that “Some mechanism for allowing the official insignia be registered with us is appropriate.”

The agency must submit a report to Congress by Sept. 30. The House and Senate judiciary committees will consider the PTO’s recommendations and, Dickinson said, could enact legislation.

He said the central and difficult question is how a symbol is to be defined: Is it a word, a name, a commercially designed seal or, like the Zia, a depiction that was first used in 1200 AD.

Roberta Price, a attorney for the Zia tribe specializing in intellectual property, said the appropriation of tribal names and symbols is a continuation of the legacy from a century ago. “Where are we going to draw the line in our taking from the Indian?” she said.

As for tribal names now used in brands such a Winnebago, Oenita and automobiles such as Jeep Cherokee and Navajo, Price said, “That’s a fight for another day.”