Denver, Colorado — November 3, 2021 — A Colorado law that imposes a sweeping statewide ban on the use of Native American names, images and sports team “mascots” beginning in 2022 is being challenged in federal court as unconstitutional, by a Native American group that believes such names, themes and iconography should be permitted, as long as they are used respectfully and with historical and regional authenticity. The Native American Guardian’s Association and its legal counsel, Denver-based Mountain States Legal Foundation, are asking the court to block any action on enforcing provisions of the law until after the constitutional questions have been resolved.
They allege that the law violates NAGA’s First and Fourteenth Amendment rights, and Title VI of the 1964 Civil Rights Act.
Follow this link for a case summary.
Follow this link to read the filing.
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, 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 brought this week.
As it turns out, not all Native Americans support the law as written. The Native American Guardians Association – whose motto is “educate NOT eradicate” — 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. But testimony from NAGA representatives that was offered in opposition SB 21-116 fell on deaf ears at the Colorado Statehouse. The group is troubled enough by the law’s equal protection and First Amendment implications, and they are challenging its Constitutionality on those grounds.
“NAGA believes that SB 21-116 unlawfully discriminates against Plaintiffs by conferring benefits on non-Native American bystanders who are not the targets of racism and discrimination with regard to Native American names, logos, and imagery,” According to NAGA Board Member Eunice Davidson Wicanhpiwastewin (Good Star Woman). “One of NAGA’s primary goals is to partner with school districts to reappropriate Native American names as honorifics in order to reclaim their meaning and to teach non-Native American students about Native American history.”
MSLF General Counsel William E. Trachman explained the equal protection issues this way.
“Imagine if a state law barred schools from using Martin Luther King Jr. in their name or in their logo. Or if references to César Chávez in letterhead were illegal because of Chávez’s race,” said Trachman. “That’s exactly what Colorado law has done here, by sweeping so broadly so as to exclude even honorific uses of Native Americans or tribes in school materials like logos and letterhead. Race discrimination is always wrong, regardless of which race suffers the discrimination. That’s why Mountain States Legal Foundation brought the lawsuit it did so here. And we plan to seek interim relief in the coming days.”