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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

Plaintiffs’ attorney: “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.

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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Comments

Colonel Travis | January 28, 2022 at 7:04 pm

Tuba City Braves
https://tcusd.org/tcjhs/

Largest city in the Navajo nation. I wonder if Colorado has such situations, I’m not familiar with tribes there. I know the state government doesn’t have jurisdiction over them, but if the tribes themselves have “offensive” nicknames why can’t anyone else? It wasn’t long ago when someone, maybe the Washington Post, asked all the tribes in Virginia – are you offended by the Redskins name? Not a single one said they were.

The only people offended by this BS seem to be leftist paleface.

    Halcyon Daze in reply to Colonel Travis. | January 28, 2022 at 7:21 pm

    The high school on the Cherokee reservation in Western North Carolina uses the Braves name and mascot for all their athletic teams.

    “The only people offended by this BS seem to be leftist paleface.”

    Isn’t this yet another example of leftists practicing their we-know-better-than-the-savages[-little-people; deplorables, etc.] attitudes,

    https://en.wikipedia.org/wiki/The_White_Man%27s_Burden

      henrybowman in reply to fscarn. | January 29, 2022 at 12:25 am

      “We mUsT proTeCt tHe Indianx!”

      The Gentle Grizzly in reply to fscarn. | January 29, 2022 at 10:38 am

      Of course it is. And among those, it is mostly Karens. Unattractive white women looking to boss people around.

      Or, they are people who think that – based on their level of education – they know what is best for those “beneath” them.

      Sadly, my mother was one of those. The subject of Obama-care came up, and how it was opposed by – among others – the coal miners and other sweaty-job Americans in rural areas. My mother’s answer was “they just don’t know any better”.

    henrybowman in reply to Colonel Travis. | January 29, 2022 at 12:24 am

    I’m still waiting for the idiots in DC to name themselves the “Washington Generics.”
    All-white uniforms, their mascot being a tin can with the label washed off.

Lefty Whiteys are trying to make them be white and less Indian.

Oh the irony.

Oh, no… someone ought to tell the Santa Fe Indian school, founded in 1890 and now under the complete control of the 19 New Mexico Pueblos the name of their mascot (Brave and Lady Brave) is RAYYYYSISSSST!

    henrybowman in reply to Sanddog. | January 29, 2022 at 12:41 am

    Phoenix went through the woke ritual of renaming Squaw Peak as Piestewa Peak, honoring a racially-and-sexually-chosen Desert Storm veteran casualty who, although a very brave and honorable soldier, won’t otherwise be remembered by the general public for anything else. Then oops, they had to rename the associated highway. Then oopsy daisy!, a dozen local businesses named after the mountain had to decide whether to bear the expense of changing their names, too, or losing business to the Woke Karens.

    Area residents and politicians alike now studiously avoid staring directly into the rays of all the street signs on Indian School Road, a central Phoenix thoroughfare for 130 years, in hopes of not drawing the Karens’ attention to them.

      NYBruin in reply to henrybowman. | January 29, 2022 at 1:52 pm

      This one mystifies me. “Squaw” is simply an Algonquian word for “woman”. Would “Mujer Peak” or “Frau Peak” be considered equally offensive??

Does that mean North and South Dakota can keep their names? How many native Americans have actually played for their hockey teams never knowing they were insulting their heritage?

You can’t name anything anymore. Just numbers and random letters.

    henrybowman in reply to Pasadena Phil. | January 29, 2022 at 12:27 am

    I was appalled to learn as a kid in the ’50s that some other kids went to schools with generic names like “P.S. 56.” It was like the people who ran them weren’t even really trying. I guess I was a perceptive kid.

    The Gentle Grizzly in reply to Pasadena Phil. | January 29, 2022 at 10:50 am

    Yes. They will change the history books to indicate the territory, then the states, were named by a shaman who could see over 100 years into the future.

    The Shaman had a vision that a manufacturer of motor vehicles would release a pickup truck, named Dakota, and so advised this be the name for the territory.

E. Zach Lee-Wright | January 28, 2022 at 8:41 pm

So do Indians object to being called “Indians”. I am sure some do however many do not. The Puyallup tribe refer to themselves as Indians and say so on a huge billboard along I-5, south of Seattle.

E. Zach Lee-Wright | January 28, 2022 at 8:48 pm

Didya know that even India has Indians? As in American style Indians.

On one of the Nicobar islands there is a tribe of natives. We know almost nothing about them and we know nothing about their language. This is because anyone who decides to go to the island promptly gets killed, by bow and arrow.

How does a ban on certain mascot or team names NOT violate the first amendment?

Could you name your team the Colorado Fascists? Communists? Nazis?

How offensive is the drunk leprechaun image of the Fighting Irish of Notre Dame to the Irish?

And one that I recently found out is offensive to many Irish is the Syracuse Orangemen. I had no clue where the name came from until I read of a nearby Syracuse community of mostly Irish Catholic ancestry that DID NOT ROOT FOR THEM (GASP!) because the name comes from the Orange Order named after William of Orange, a fraternal Protestant group.

    henrybowman in reply to gospace. | January 29, 2022 at 12:51 am

    The ND mascot is definitely belligerent, but not inebriated. Though he has occasionally been redrawn that way by detractors, which doesn’t count. The Irish are quite proud of him, according to my authority, a close HS Irish pal of mine who was a hall rector at ND for decades (and who, coincidentally, previously principalled* a school here on Indian School Road).

    *Yes, I’m verbing now, just like the rest of you. I’m tired of not being one of the Cool Kids.

      NYBruin in reply to henrybowman. | January 29, 2022 at 2:09 pm

      I’m of Irish descent. I’m not offended. Nor do I find the Lucky Charms leprechaun offensive.

      Of course, if I were to find I were eligible for some form of government payout, I might change my mind!

    ronk in reply to gospace. | January 29, 2022 at 8:33 pm

    the offensive would be the ‘paddy wagons’, or the signs in Boston that said ‘dogs and Irishmen not allowed’

Land O Lakes butter packages look sad and lonely since they erased the Indian maiden from the land.

The Democrats have always been trying to make the Native Americans disappear. The Reservations were supposed to do that but the Indians did not cooperate by going away. This is just a cultural purge since the physical purge has not worked. Perhaps, if I no longer see or hear “Braves,” I will forget they every exited — right? You know it is not about the Native Americans as they were “green” in every way except for the green of taxpayer corruption. They were in harmony with Nature.

What shall we rename the states with names based on the American Indian tribes who lived there? Let’s see, Florida, Tennessee, Alabama, Mississippi, Kentucky, Michigan, NoDak, SoDak, Nebraska, Kansas, Arkansas, even (gasp!) Indiana. Keep going west and there are many more. Then consider the thousands of locations in those states.

This could be fun. Anybody care to guess the new politically correct name of the Talladega race track without using Talladega or Alabama?
.

This is actually a fascinating point from the Native American Tribes. You can’t pass a law that prevents us, the tribe, from letting others use our name/stuff is a fantastic argument.

Plus I believe this law is a clear 1st Amendment violation and will eventually be struck down.

No need to speculate regarding the Forst Amendment. Look at the 2017 Supreme Court case of Matal v. Tam, which held that it was unconstitutional for the Patent & Trademark Office to refuse to register a TM for “The Slants” on the ground that it was disparaging.

Hi everyone, I’m one of the attorneys in this case, along with Mountain States Legal Foundation. The Slants case is important, not only because of the First Amendment principles, but because of the U.S. Supreme Court found important Simon Tam’s use of “reappropriation” in the name of his band and his lyrics. As we write in the amended complaint that we filed on Friday, “Reappropriation has been used by members of historically marginalized groups seeking to reclaim names and images that were once directed at them as insults in order to turn them outward as badges of pride. Cf. Matal v. Tam, 137 S. Ct. 1744, 1751 (2017) (“‘Slants’ is a derogatory term for persons of Asian descent, and members of the band are Asian–Americans. But the band members believe that by taking that slur as the name of their group, they will help to “reclaim” the term and drain its denigrating force.”); see also Mark Conrad, Matal v. Tam—A Victory for the Slants, A Touchdown for the Redskins, But an Ambiguous Journey for the First Amendment and Trademark Law, 36 CARDOZO ARTS & ENT. L.J. 83, 94 n. 55 (2017) (describing the numerous positive reclaimings of once-offensive words for women, gays, and racial groups).”

We also write:

Reappropriation allows Native Americans to self-identify, and non-Native American allies to associate their identities with the messages that Plaintiffs seek to convey, in order to persuade others to join the cause of Plaintiffs. For example, Plaintiffs’ attempts to honor their heritage by engaging in acts of Reappropriation include:

(a) using positive Native American names, logos, and imagery as a means of Native American empowerment;

(b) retaking, “taking back,” or wresting ownership of “appropriated” Native American symbols in public schools (and, in particular, sporting and other public events) through messaging and language;

(c) educating non-Native Americans (particularly in public schools) about Native American race, color, and national origin; and

(d) reversing the “ripple effect” caused by eradication efforts designed to further silence and render invisible Native American voices in American culture.

We conclude on Reappropriation, writing: “For too long, non-Native Americans have used racial names, slurs, and American Indian mascot performers, stereotypes and caricatures to ridicule and debase Native Americans and their culture. Plaintiffs seek, through Reappropriation, to use images in a positive manner, in order to marginalize the racism that they and their ancestors have faced and continue to face in light of the efforts of the eradicators would erase Native American names, logos, and imagery from Colorado’s public schools and, thereby, public view and debate. Cf. Matal, 137 S. Ct. at 1754 (“The group ‘draws inspiration for its lyrics from childhood slurs and mocking nursery rhymes’ and has given its albums names such as ‘The Yellow Album’ and ‘Slanted Eyes, Slanted Hearts.’”).”