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Native American Lawsuit Challenges Colorado Ban On Native American “Mascots” As Discriminatory

Native American Lawsuit Challenges Colorado Ban On Native American “Mascots” As Discriminatory

Allege that sweeping ban is discriminatory: “SB 21-116 sweeps derisive, neutral, and honorific uses of Native American names and imagery together into the universal term “American Indian mascot” …. SB 21-116 unlawfully enacts state-sanctioned race discrimination against Plaintiffs.”

The banning of Native American (American Indian) depictions for sports teams gets a lot of press, most famously the Washington Redskins renaming themselves the Washington Football Team.

There’s a side to this issue that I had not thought of, but is argued in a lawsuit just filed in Colorado. That when the government is involved in such name bans, it is discrimination against American Indians because it deprives them of the ability to have things named after them. It is, according to the argument, the worst form of cultural appropriation, more like cultural deprivation.

In Colorado in 2021, legislation was passed banning the use of American Indian mascots, broadly defined. Now the law is being challenged in a lawsuit filed on November 2, 2021, on behalf of the Native American Guardians Association (NAGA) and individuals by the Mountain States Legal Foundation, which summarizes the case on its website:

Marez, et al. v. Polis, et al.

This is a civil-rights action, filed in the U.S. District Court for the District of Colorado, challenging the constitutionality of SB 21-116.  SB 21-116 is a bill passed by the Colorado State legislature in 2021 which purports to prohibit the use of American Indian “mascots” by public schools and public institutions of higher education, as of June 1, 2022. Schools that don’t comply with the law face a $25,000 per month fine, for each month that the school continues to use a prohibited image or name after that date. The Native American Guardians Association and its members believe the law violates their First Amendment and Fourteenth Amendment rights, as well as Colorado Constitution’s Free Exercise Clause and Colorado Constitution’s Free Speech Clause, the Civil Rights Act, Title VI and Title IV.

The website also lays out the reasoning:

Colorado lawmakers in 2021 banned public schools from using Native American names or imagery for sports team names or “mascots,” based on the presumption that all such representations are demeaning and derogatory, if not blatantly racist, and must therefore be retroactively erased or banned from future use….

As it turns out, not all Native Americans support the law as written. The Native American Guardians Association supports the respectful use of Native American names and imagery in certain instances, and it fears that erasing all such imagery and iconography could also erase Native American history from school grounds. The group is troubled enough by the law’s free speech and equal protection implications, and they are challenging its Constitutionality on those grounds.

There’s no question that many American Indian-themed “mascots” and team names can be demeaning. But not all of them are or were. The Guardians agree with most Americans that no person or nation of people should be a “mascot.” That is why they oppose the use of American Indian mascot performers and caricatures that mock Native American heritage — such as Lamar (Colorado) High School’s former mascot, Chief Ugh-Lee or the Atlanta Braves’ former Native American caricature Chief Noc-A-Homa — in sports and other public venues.

But The Guardians also believe that culturally appropriate Native American names, logos, and imagery can be an important and educational way to honor Native Americans, and to help public schools neutralize offensive and stereotypical Native American caricatures and iconography while teaching students and the general public about American Indian history, a history shared by all Americans. The law doesn’t attempt to differentiate between the two, sweeping the potentially good away with the bad.

The law reportedly would require at least 25 Colorado schools to change their school team names, and possibly more to change the name of the school itself.  But in reality, because the law is poorly worded, it probably sweeps in numerous other schools that have Indian terms in their names, like the Cherokee Trail Cougars.

You can read the Complaint:

1. Imagine a state law that barred schools from using the name or image of an African-American individual on its logos or letterhead. That would be the end of school names honoring Martin Luther King Jr., President Barack Obama, or Justices Thurgood Marshall and Clarence Thomas…. [image in Complaint]

2. Or imagine a law banning school names and letterhead honoring Latin Americans like Cesar Chavez or Justice Sonya Sotomayor. [Image in Complaint] ….

4. Plaintiffs oppose the use of American Indian mascot performers and caricatures that mock Native American heritage—such as Lamar High School’s former mascot Chief Ugh-Lee or the Atlanta Braves’ former Native American caricature Chief Noc-A-Homa—in sports and other public venues.

5. Nevertheless, culturally appropriate Native American names, logos, and imagery serve to honor Native Americans, and to help public schools neutralize offensive and stereotypical Native American caricatures and iconography, while teaching students and the general public about American Indian history.

6. SB 21-116 sweeps derisive, neutral, and honorific uses of Native American names and imagery together into the universal term “American Indian mascot.” See, e.g., Colo. Rev. Stat. § 22-1-133(1)(a) (“‘American Indian mascot’ means a name, symbol, or image that depicts or refers to an American Indian tribe, individual, custom, or tradition that is used as a mascot, nickname, logo, letterhead, or team name for the school.”) (emphasis added).

7. Defining even honorific uses of Native American names or imagery as merely “mascots” is offensive to our sensibilities as a nation, which do not generally permit racial discrimination.

8. “[I]n a society in which [racial] lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.” Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 308 (2014).

9. Erasing Native American names and images from the public square and from public discussions echoes a maneuver that Plaintiffs have previously seen used by the eradicators of Native American heritage. Colorado repeats the same mistake in its paternalistic assumption that it must protect Native Americans by erasing cultural references to them and to their heritage.

10. SB 21-116 unlawfully enacts state-sanctioned race discrimination against Plaintiffs.

11. Because the eradication of Native American names, iconography and images poses serious harm to the cultural identities and heritage of Native Americans, Plaintiffs regularly engage in efforts of “reappropriation,” so as to render emotionally charged Native American names, logos, and imagery nondisparaging, and to educate others as to what it means to be a Native American in American culture.

On November 5, 2021, an Emergency Motion for a Preliminary Injunction (with supporting affidavits) was filed, based on a threat of heavy fines under the law and an implied threat that non-compliance could jeopardize state grants:

On or around November 1, 2021, Defendant Kathryn Redhorse communicated to certain Colorado school districts to remind them of the deadline to change Native American icons and imagery covered by SB 21-116 by June 1, 2022. See Jefferson Decl. (Exhibit 1 at Exhibit A, p. 6). However, the communication also apprised school districts that if they planned to seek grant funding for the changing of a name, a notice of intent must be submitted by November 30, 2021:

To assist your public schools in making this change, SB 21-116 includes the Building Excellent Schools Today (BEST) grant program as a potential source of funding to “accomplish any structural changes that might be necessary” to remove American Indian mascots. Applications for the Fiscal Year 2023 grant round are due in February 2022. All districts and charter schools must notify BEST of their intent to apply by November 30, 2021.

Exhibit 1, at 6 (emphasis added). Given the imminent deadline of November 30, Plaintiffs file this emergency motion for preliminary injunction pursuant to Fed. R. Civ. P. 65(a). Plaintiffs request that the Court issue a preliminary injunction barring Defendants from taking any actions to enforce Colo. Rev. Stat. § 22-1-133 and/or Colo. Rev. Stat. § 22-1-137 (together, “SB 21-116” or the “Act”).

More broadly, interim relief is needed because even if a school has no plan to apply for grant funds, they must nevertheless engage in a long process to erase their Native American names, images, and iconography before June 1, 2022….

The Motion concludes:

Once SB 21-116 is implemented, Plaintiffs will suffer irreparable and immeasurable harm which cannot be compensated through money damages. If its enforcement is not enjoined by this Court, SB 21-116 will strip Plaintiffs, as Native American, of their essential constitutional and civil rights by eradicating positive Native American names, logos, and imagery from Colorado public schools. Its implementation will also uniquely disadvantage Plaintiffs’ ability to debate with others about the importance of respectful and culturally appropriate Native American logos, iconography and imagery, thereby further consigning Native Americans to historical oblivion. Plaintiffs have no adequate legal, administrative, or other remedy by which to prevent or minimize this harm. Plaintiffs meet the standards for issuing a preliminary injunction, against Defendants.

In a statement to Legal Insurrection, Scott Cousins, Esq., counsel to NAGA, stated:

“We believe that SB 21-116 unlawfully discriminates against Plaintiffs as a State-sanctioned instrument primarily to confer benefits on non-Native American bystanders who are not the target of SB 21-116, but who are nevertheless offended by Native American names, logos, and imagery.”

The Attorney General’s office has stated that it will defend the lawsuit but will not further comment.

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Comments

“8. “[I]n a society in which [racial] lines are becoming more blurred, the attempt to define race-based categories also raises serious questions of its own. Government action that classifies individuals on the basis of race is inherently suspect and carries the danger of perpetuating the very racial divisions the polity seeks to transcend.” Schuette v. Coalition to Defend Affirmative Action, 572 U.S. 291, 308 (2014).”

Take THAT, Kendi and DiAngelo!

So, like much of the manufactured leftist rage and indignation purported to be in defense of various minorities, the actual minorities are not part of it and usually indignant that a bunch of white people, “Karens” if you will, feel that they minorities themselves cannot defend their name and honor.

Is this another example of the leftist soft bigotry of low expectations, like the left’s belief that blacks can’t get proper identification for voting?

It seems like the “white man’s burden” dogma lives loudly within the socialists, to paraphrase something Dianne Feinstein once said about Amy Comey Barrett.

    henrybowman in reply to Dimsdale. | November 7, 2021 at 11:08 pm

    To be completely fair, note that this action is being brought by the Mountain States Legal Foundation, a conservative litigation house. It’s possible that this lawsuit is no less astroturf than the earlier lawsuits claiming cultural appropriation… but again, to be fair, it is no more astroturf, and so demands equal consideration.

I always felt American Indians were probably proud when their heritage was used proudly… regardless

    murkyv in reply to gonzotx. | November 7, 2021 at 11:34 pm

    The school and even our township was named after Chief Aubbeenaubbe

    Our mascot was the Braves

    A neighbor of mine was a direct descendant and was damn proud of his heritage

Surprised this took so long. It seems with all the “bans” that Indians were being washed from memory like they never existed.

Since the tribe is entirely fictitious, is the name and the symbols of the Hekawis Tribe (F Troop) encompassed within the reach of this law?

    DaveGinOly in reply to fscarn. | November 8, 2021 at 1:43 pm

    I remember the story about how the tribe got it’s name. It started with, “Pilgrims come. Ruin neighborhood.”

The Cherokee Central School Braves on the Eastern Cherokee Reservation in North Carolina is cultural appropriation?

Cultural appropriation… nay, agreement, with the intent to remember, per chance to honor a history and tradition of a proud people. Deplorable.

I was visiting Santa Fe, NM and saw some women selling goods in the park. I went over and talked to the sellers and I said something that included the term Native American. One of the women drew herself up proudly and told me not to use the term Native American because I was Native American. She told she was American Indian. I thanked her for telling me her preference. I didn’t mention that I was born in Australia!

    SamlAdams in reply to JoAnne. | November 8, 2021 at 7:11 pm

    Saw an interview with Wes Studi years ago where he goes into detail on why he is an “American Indian”. Basically same reasoning.

The woke Left really threw out the papoose with the bathwater, didn’t they?

Wait, was that offensive?

It’s gone way beyond ‘stupid’ and all the way to tyranny.

Speaking of stupid:

Can this woman EVER open her mouth without putting her foot or someone’s you-know-what in it? —

” Kamala Harris on Saturday interrupted a NASA presentation to ask if they can “measure trees” as part of “environmental justice.”

“Can you measure trees? Part of that data that you’re referring to in environmental justice…that you can also track by race , there are averages in terms of number of trees where people live,” Harris said….”

https://www.thegatewaypundit.com/2021/11/kamala-harris-interrupts-nasa-presentation-ask-can-measure-trees-part-environmental-justice-video/

The RACE of trees?

She really is this lame. She is the genuine thing. How she got past cameras and microphones in California for so long says worlds about the CA press.

    henrybowman in reply to TheFineReport.com. | November 7, 2021 at 11:14 pm

    Since she invoked “environmental justice,” she was probably asking if NASA could measure the prevalence of trees in various “socially deprived” districts compared to well-to-do districts.

    But why would we bother? If only tells us what we already know. People with money have landscape. People on the dole have streetscape. Successful people own property and plant greenery. Unsuccessful people owe rent and likely have no place to plant anything, even if they wanted. You can’t grow a tree in a windowbox.

    Joey Williams in reply to TheFineReport.com. | November 7, 2021 at 11:29 pm

    “She really is this lame. She is the genuine thing. How she got past cameras and microphones in California for so long says worlds about the CA press.”

    Not really. Newsom has gotten a pass for how many years? There is no such thing as “California Press”; there’s only “California Propaganda”.

The banning of Native American (American Indian) depictions for sports teams gets a lot of press, most famously the Washington Redskins renaming themselves the Washington Football Team.

Changing their name to appease the Wokestapo didn’t help the WTF play any better

Odd that the left don’t dare mention the relationship between the Florida Seminole Indian tribe and the Florida State University ‘Seminoles’ when this topic comes up…

For those not in the know, it’s a relationship of total respect and support that goes both ways. The tribe would go nuts if the left tried to force a change.

    Capsaicin_Addict in reply to Gosport. | November 8, 2021 at 9:00 am

    Supposedly there have been a couple abortive attempts that got smacked down HARD by the Seminole Nation. They are NOT interested in liberal white savior types coming to ‘save’ them from the perils of their name being used with their consent and approval.

    DaveGinOly in reply to Gosport. | November 8, 2021 at 1:53 pm

    The whole concept of naming sports teams after groups of peoples is based on the association of those peoples with admirable qualities, such as strength, discipline, perseverance, bravery, etc. (This association is also found in the many animal names among sports teams: lions and tigers and bears, oh my!) Although some of the mascots themselves are repellant (Chief Wahoo comes to mind immediately), the naming convention itself revolves around positive associations. Nobody names their sports team the “Los Angeles Losers” or the “Wisconsin Weaklings.”

I always thought to myself, “Did anyone actually ask Native Americans what they think? All of them? Did they have meetings and a vote? Or is this just another case of less than 3-4% of a group(and maybe a whole lot of people who aren’t even members of that group) deciding for everyone?

    In the years leading up to when the Washington Redskins finally were forced to give up the name, poll after poll of American Indians showed the vast majority of them didn’t mind the name at all.

    It was often joked that when the time came, keep the name but just put a red-skinned potato on the helmets.

    henrybowman in reply to JohnC. | November 8, 2021 at 1:25 pm

    I’m sure the National Association of Colored People didn’t vote six times in 20 years to change what would be the “politically correct” term to call their race. Especially because they never changed their own name even once. Nope, it was Annie Hall wannabes at a political book club in Chevy Chase, and you know it.

There’s nothing more dangerous to America than the woke white Leftist.

Cultural deprivation is a good term. That is what the woke white Leftist is doing to America.

    DaveGinOly in reply to chrisboltssr. | November 8, 2021 at 1:57 pm

    I once saw a comedian do a bit (don’t remember who it was) about cultural appropriation. He said something to the effect of, “What’s the use of multiculturalism if we cant borrow and adopt from other cultures those elements that appeal to us, if we can’t share our cultures amongst each other? What’s the point of living somewhere with ethnic restaurants if eating someone else’s food is considered a bad thing?”

My high school team is the “Criminals” (Yuma, Arizona)
Got to be appropriating something. Not sure what.

Article needs a slight correction for “deprivation” instead of “depravation.”

I wrote the following on 7/9/20 in a comment to a story on Fox News:

A lot of people (many of them white) are trying to wipe out positive minority representation in sports team and product names. Isn’t that racist?

If minorities weren’t now represented in sports team and product names, wouldn’t they be demanding it? Wouldn’t they be complaining that NOT being represented was part of an effort to make their presence in society invisible?

When are they going to go after the “white” sports teams names, like the Celtics and the Vikings? If only the names of groups of white people are attached to teams and products (e.g., Col. Sanders), will that then be considered racist?

Why is “Redskins” (a name by which Native Americans know each other, to make a distinction between themselves and pale faces) racist when “Celtics” is not? Or are they both racist – “Redskins” for being demeaning and “Celtics” for being white supremacist?

Has anyone thought to ask the Native American who designed the Redskins’ logo what he thinks of getting rid of it? Last I heard, he welcomed the commission and was proud of his work. Does anyone think that he designed the logo to be racist or demeaning? Does anyone think the team commissioned the work with the intention to insult Native Americans? And, if it is insulting, why isn’t “Celtics” considered insulting too (no matter what white people think of it)?

I could go on, but you can see how stupid this is.

Insufficiently Sensitive | November 8, 2021 at 3:39 pm

But not all of them are or were.

Very good point, and it’s one in the eye for the racists whose assertions for the last fifty years have been that any MENTION, positive or negative, of an Indian tribe, or a skin color, or a differing point of view was automatically proof of racism on the part of the speaker. That defines Ibram X. Kendi and his sweeping, falsely-named ‘anti-racism’ to a T.

Go Native American Guardians and Mountain States Legal Foundation!

Amen!

The Scottish Officer apologizes sums it up.
https://www.facebook.com/watch/?v=4377551695664004

FSU dealt with this years ago—had Seminole and Miccosoukee tribal members ensure authenticity of chief Osceolas dress, lance and horse tack. Grew up down there and spent some time on a two of the Everglades reservations. It was a point of pride that the Seminole’s were never really defeated by the United States. In school we learned about the sophistication of the Indian tribes warfighting and how they led the army on years of bug hunts in an area much smaller than the west.

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