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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