R. P. Gough,
Attorney for the Estate
Administrator of the Estate of Tasunke Witko, a.k.a. Crazy Horse, Mr. Seth H. Big Crow, Sr., was very pleased with the recommendation of Administrative Law Judge Allen E. Giles to the Minnesota Commissioner of Public Safety for the revocation of “The Original Crazy Horse Malt Liquor” label registration..
“If the recommendation of Judge Giles is followed by the Commissioner, then this will mark a major victory for Indian people in the recognition of our right to equal respect in the protection of our ancestors’ names” Big Crow said upon reading the ruling, in his home on the Rosebud Reservation.
The Minnesota recommendation for revocation, based upon the finding that the label’s use of the name in connection with a malt liquor was “false and misleading”, would follow recent U.S. Patent and Trademark Office rejections of a trademark registration for the same label because of its disparaging and contemptuous nature.
“Two years ago, the state of Washington found this label to be misleading. The PTO has twice found that use of the Crazy Horse name on a malt liquor is likely to disparage and bring into contempt both the reputation of Crazy Horse and the Lakota people. Now, this new Minnesota ruling recognizes Crazy Horse’s historic opposition to alcohol and the right of the heirs of the Estate of Tasunke Witko to control the use of the name through the withholding of their endorsement. For Indian people, this is an important recognition of rights taken for granted in the mainstream society,” according to Robert Gough, attorney for the Estate of Tasunke Witko,
On September 28, 1995, Minnesota Administrative Law Judge, Allen E. Giles, has recommended that Minnesota Commissioner of Public Safety revoke the brand label registration of “The Original Crazy Horse Malt Liquor” pursuant to Minn.Stat. 340A.311(d) (1994).
In his seven page ruling, dated 9/28/95, ALJ Giles concluded that as a matter of law:
4. 1994 Minnesota Laws chapter 611, section 12, codified as
Minn.Stat. 340A.311(d)(1994), provides as follows:
“The Commissioner shall refuse to register a malt liquor brand label, and shall revoke the registration of a malt liquor brand label already registered, if the brand label states or implies in a false or misleading manner a connectgion with an actual living or dead American Indian leader. This paragraph does not apply to a brand label registered for the first time in Minnesota before January 1, 1992.”
5. The Crazy Horse Malt Liquor brand label was registered after
January 1, 1992. The Crazy Horse brand label states or implies
a connection to Tasunke Witko, a/k/a Crazy Horse, a deceased
American Indian leader.
6. Because Tasunke Witko was opposed to the use of alcoholic
beverages, and because the heirs of his estate have not
endorsed and have specifically disavowed any connection
with the Crazy Horse Malt Liquor, the Crazy Horse Malt Liquor
brand label states or implies in a false or misleading manner
a connection to Tasunke Witko a/k/a Crazy Horse, a deceased
American Indian leader.
7. As a result of Conclusions 4, 5 and 6, the Commissioner must
revoke the Crazy Horse brand label.
If the AJL ‘s recommendation is adopted by the MN Commissioner of Public Safety, the State of Minnesota will join the State of Washington in prohibiting the sale of a malt liquor which uses the name of Crazy Horse on the label without permission and over the opposition of the descendants of the Crazy Horse family. The malt liquor is still available in some 40 other states. After the repeal of federal Prohibition, the U.S. Constitution granted States regulatory power over the sale and transportation of alcoholic beverages within their borders.
Under tribal law, the descendant family controls the use of their ancestor’s name. Under state and federal law this legal control of the use of a name for commercial purposes is typically referred to as the right of publicity. To date, the Estate of Tasunke Witko, which is in probate under tribal law in the Rosebud Sioux Tribal Court, has successfully encouraged several states to respect the rights of the Crazy Horse family by the removal of this false and misleading label from the marketplace, state by state..
The Estate of Tasunke Witko currently seeks information as to other state laws concerning misappropriation and/or false and misleading labeling, etc., which may be used effectively to stop the sale of this liquor product with its misappropriated label. Several other states will be approached to consider enforcing existing regulations or to adopt regulatory language similar to that enacted in Minnesota. The Estate seeks assistance (financial and otherwise, such as local counsel, etc.) from the supporters across the country in states where future legal efforts are presently under consideration. The identified states are as follows: AK, AL, AZ, CA, CT, GA, IN, IL, IO, MA, ME, MI, NH, NJ, NY, OH, OK, PA, RI, TX, VT, and WI.