10th Circuit Denies Native American Request To Halt Colorado “Mascot” Ban Pending Appeal

10th Circuit Denies Native American Request To Halt Colorado “Mascot” Ban Pending Appeal

A Native American Group sought an injunction halting what they said was a discriminatory Colorado ban on the use of Native American Mascots. We covered the story in Native American Lawsuit Challenges Colorado Ban On Native American “Mascots” As Discriminatory:

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….

The Complaint alleged, among other things:

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.

An Emergency Motion for a Preliminary Injunction further argued:

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.

The District Court denied the motion for injunction, as we reported, Court Denies Injunction Sought By Native Americans Challenging Colorado “Mascot” Ban As Discriminatory.

The District Court’s ruling was that there was no emergency since the ban only became effective on Jun 1, 2022:

In their motion, the Plaintiffs ask this Court to “issue a preliminary injunction barring Defendants from taking any actions to enforce [SB 21-116].” ECF 4 p. 2. However, in the very first sentence of their motion, the Plaintiffs admit that “the deadline to change Native American icons and imagery covered by SB 21-116” is June 1, 2022. Id. There is no indication in any of the Plaintiffs’ briefing that the Defendants are currently enforcing SB 21-116 or that they intend to do so in the immediate future. The Plaintiffs are thus requesting this Court to issue an “emergency” order preliminarily enjoining action which is not being taken and which will not immediately be taken. The function and purpose of a “preliminary injunction” is to prevent irreparable injury pending an ultimate determination of the action. See Marine Cooks & Stewards, AFL v. Panama S. S. Co., 268 F.2d 935, 935 (9th Cir. 1959). The Plaintiffs here have not established that they will suffer any immediate injury pending the ultimate determination of this action because the statute at issue will not be enforced for another six months.1

[1 Indeed, the Plaintiffs acknowledge in their motion that “it is possible that the Defendants will agree to a case scheduling order that largely resolves the issues in the case prior to June 1, 2022.” ECF 4 p. 20]

The November 30, 2021 deadline on which the Plaintiffs rely to support this “emergency” request is not tied to the relief requested. The Plaintiffs request that the Court enjoin the Defendants from enforcing SB 21-116. November 30, 2021 is simply the date by which schools need notify the Building Excellent Schools Today (BEST) ofan intent to apply for funding to remove American Indian mascots. The November 30, 2021 deadline has no bearing whatsoever on the enforcement of the Act. The Plaintiffs argue that they will be harmed if the Court does not issue a preliminary injunction prior to November 30, 2021 because “a transition to a new school  name or logo is expensive, and [] it will be next to impossible to return to such a name if relief is granted after June 1, 2022.” ECF 4 p. 19. Such speculative harm, however, cannot form the basis for a finding of irreparable injury. “Irreparable harm” means that the injury “must be both certain and great.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001). Further, the harm alleged would constitute harm to the schools, not to the Plaintiffs themselves.

The group sought what’s called an “interlocutory” appeal and injunction, which means that there is no final judgment yet in the District Court. The group also an interlocutory injunction from the 10th Circuit, halting the mascot law pending the appeal.

The 10th Circuit just rejected the request. The 10th Circuit Order provided, in full:

Plaintiffs filed a motion for an injunction pending their interlocutory appeal from the district court’s order denying their emergency motion for a preliminary injunction. They seek to enjoin Defendants from undertaking any action pursuant to a Colorado statute enacted in June 2021 that generally prohibits the use of American Indian mascots in public schools. Defendants filed a response in opposition to the motion, and Plaintiffs filed a reply in support of the motion.

Tenth Circuit Rule 8.1 requires Plaintiffs to address the following factors when seeking an injunction pending appeal: (A) “the basis for the district court’s . . . subject matter jurisdiction and the basis for the court of appeals’ jurisdiction, including . . . a statement of facts establishing jurisdiction”; (B) “the likelihood of success on appeal”; (C) “the threat of irreparable harm if the . . . injunction is not granted”; (D) “the absence of harm to opposing parties if the . . . injunction is granted”; and (E) “any risk of harm to the public interest.”

In ruling on a request for an injunction pending appeal, “this court makes the same inquiry as it would when reviewing a district court’s grant or denial of a preliminary injunction.” Homans v. City of Albuquerque, 264 F.3d 1240, 1243 (10th Cir. 2001) (per curiam). “Thus, we must consider, based on a preliminary record, whether the district court abused its discretion and whether the movant has demonstrated a clear and unequivocal right to relief.” Id.

Upon consideration of the parties’ filings and the relevant law, we conclude that Plaintiffs have failed to show their entitlement to an injunction pending appeal. Accordingly, we deny Plaintiffs’ motion.

So what’s next? Scott Cousins, the attorney for the Native American group, provided this statement to us:

“We’re proceeding to discovery in the district court later today and waiting on the final scheduling order, but in any event will be filing a motion for summary judgment in February.  In the meantime, we’re still considering whether to appeal the denial of the injunction to the U.S. Supreme Court.”

We will continue to follow the case.

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