Case Summary

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. 

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Status

Court

U.S. District Court for the District of Colorado

Case History

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.

The legislators who supported the measure, SB 21-116, just presumed, paternalistically and erroneously, to know where all American Indians stood on the issue. Nor did the lawmakers give thought to the First Amendment or Fourteenth Amendment (equal protection clause) implications of such sweeping and blanket prohibitions, even though the Native Americans they presumed to speak for enjoy these same Constitutional protections and have an interest in seeing that they’re vigorously and consistently upheld.

Those who wrote the law believed good intentions gave them a pass on thinking these matters through more carefully — a misjudgment that laid the predicate for the legal challenge we bring today.

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.

Schools that don’t comply with the law by June 1, 2022, face a $25,000 per month fine for using a prohibited image or name after that date.  NAGA and its members are challenging the law on equal protection grounds because it does not ban schools from using names and imagery associated with other groups, such as African Americans or individuals who are white. 

NAGA seeks prospective and injunctive relief against those who are enforcing or threatening to enforce SB 21-116 in violation of the group’s 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 law unlawfully discriminates against the plaintiffs based on a misguided belief that all Native American names, logos, and imagery are offensive or demeaning.  But it is patronizing and dehumanizing for these bystanders to make demands of all public schools in the state regarding how to speak or feel about Native American heritage.  The law also infringes on the right to petition under the First Amendment, since individuals would like to lobby their local schools to be named after prominent Native Americans, but neither they nor the local schools can be expected to know what is or is not legal under Sb 21-116.

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