Native American Mascot Ban Provokes Legal Battle in Colorado
Photo Source: Fibonacci Blue, Protest Against Washington Football Team Name, Flickr (Nov. 2, 2014) (CC BY 2.0).
By: Demetrios Mikelis* Posted: 03/15/2022
Over twenty public schools in the state of Colorado use Native American-themed names and imagery for their school names or school team names. Examples include the Montrose Indians, the Centennial Braves, and the Lamar Savages. But that number could be dramatically shrinking soon due to a bill signed into law last year by Colorado Governor Jared Polis.
In June of 2021, the Colorado state legislature passed S.B. 21-116 (the “Act”), which prohibits Colorado public schools from using “American Indian mascots” unless they are tribally run or have a preexisting agreement with a tribe. An “American Indian Mascot” is defined under the law as “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.” The new Act imposes a steep fine of $25,000 per month to any schools that fail to comply beginning in June of 2022. At least one school district has already abandoned its American Indian-themed mascot in reaction to the new law.
A Push to Eliminate Offensive Names and Images
The purpose of the Act is to end the use of school team names that the Colorado legislature found are offensive or harmful to Native American tribes and schoolchildren. Many Native Americans believe school mascots like “the Indians,” “the Redskins,” and “the Savages” belittle their heritage, perpetuate stereotypes, and even facilitate bullying.
For many years, tribes and activists have made clear that they prefer schools to cease using their Indian mascots. Several tribes collaborated closely with lawmakers in crafting the bill. Supporters of the law have cited studies indicating that these mascots have harmful mental health effects on American Indian children. In accordance with its purpose of erasing specifically derogatory names and images, the Act is not a complete prohibition on Native American mascots. Schools on tribal land are exempt, as is any public school that has an agreement to use a Native American mascot with a federally recognized Indian tribe.
The costs for schools to change their mascots to comply with the new law are expected to be prohibitive, so much so that the state established a fund to aid schools in making the changes. Some school districts estimate that the costs of changing mascots could exceed $200,000. Nor are all schools eager to let go of traditional team names that have been used for decades. It is therefore unsurprising that the new law has drawn a legal challenge.
Allegations of Unconstitutionality
While some Native American groups support the new Act, not all of them do. A legal challenge has been brought against it in the United States District Court for the District of Colorado by multiple Native American plaintiffs, including the Native American Guardian’s Association. The Plaintiffs agree that some usages of American Indian mascots are offensive caricatures and should be retired. However, they fear that the sweeping nature of the Act will eliminate not only objectionable uses of Native American imagery but also what they see as appropriate uses that honor and bring visibility to American Indian heritage. On top of that, Plaintiffs have constitutional concerns.
The lawsuit claims that the Act violates federal constitutional and statutory law on several grounds. Plaintiffs bring two equal protection claims under the Fourteenth Amendment, a free speech claim under the First Amendment, and a Civil Rights claim under Title VI of the Civil Rights Act of 1964. Colorado’s new statute purportedly violates the Equal Protection Clause in two ways. First, it racially discriminates against Plaintiffs by precluding schools from using names like “Fighting Sioux” and “Indians” while permitting them to use other ethnically charged names like “Fighting Irish,” “Boston Celtics,” or “Vikings.” Second, they claim the Act will force Native Americans to lobby the state legislature every time they want a school name to reflect American Indian heritage, whereas members of other racial groups face no such obstacle.
Next, Plaintiffs argue that the vagueness of the law infringes First Amendment rights as well. Alleging that the law does not sufficiently clarify which uses of Native American names or mascots is acceptable, they assert that it will have a chilling effect on efforts to petition schools to adopt Native American names to honor American Indian heritage. Finally, Plaintiffs claim the law violates the Civil Rights Act, alleging it subjects them to disparate treatment and a hostile environment on the basis of their race or nationality.
A Setback for Plaintiffs in the District Court
A few days after filing their complaint, Plaintiffs filed a request for a preliminary injunction to prevent the Act from going into effect as the litigation proceeds. To qualify for a preliminary injunction, Plaintiffs had to show (1) “a substantial likelihood they would prevail on the merits,” (2) irreparable harm would come to them without an injunction, (3) the harm they would suffer without an injunction would outweigh the harm an injunction would cause the Defendant, and (4) an injunction was not against the public interest. The District Court ruled against Plaintiffs’ motion, primarily because Plaintiffs had failed to show that they would suffer irreparable harm. However, the Court indicated that even the other factors favored the Defendants. The Plaintiffs appealed the District Court’s decision, only for it to be affirmed by the Tenth Circuit Court of Appeals.
Plaintiffs’ attorneys intend to move for summary judgment in February and are considering appealing the Tenth Circuit’s denial of preliminary injunctive relief to the Supreme Court. Meanwhile, Colorado schools retaining their American Indian mascots have only until June before they begin facing crushing fines for noncompliance. The clock is ticking.
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
 See Alana Schreiber & Henry Zimmerman, Colorado’s Ban on Native American School Mascot Faces Questions of Constitutionality in a New Lawsuit, Kunc (Nov. 22, 2021), https://www.kunc.org/show/kuncs-colorado-edition/2021-11-22/colorados-ban-on-native-american-school-mascots-faces-questions-of-constitutionality-in-a-new-lawsuit (indicating that twenty-five Colorado schools use Native American mascots); see also Legislation, Colorado Commission of Indian Affairs (last visited Feb. 10, 2022), https://ccia.colorado.gov/legislation (listing twenty-eight Colorado schools with Native American mascots or imagery).
 See Colo. Rev. Stat. Ann. § 23-1-133 (West 2021) (showing law enacted S.B. 21-116); see also Legislation, Colorado Commission of Indian Affairs (last visited Feb. 10, 2022), https://ccia.colorado.gov/legislation (listing Colorado public schools with American Indian mascots). The Centennial Braves and Montrose Indians are both moving to change their mascot names. See Anna Lynn Winfrey, Centennial Mascot: ‘Bears’ Likely Swap for ‘Braves’, Montrose Daily Press, (Jan. 25, 2022) https://www.montrosepress.com/news/centennial-mascot-bears-likely-swap-for-braves/article_84d0a41e-7417-11ec-a68b-a3ff7a2e8599.html (reporting Centennial Middle School mascot sub-committee meeting to decide on new mascot). See also Anna Lynn Winfrey, Montrose High School Expected to Drop ‘Indians’ Mascot by June 1, 2022, Montrose Daily Press, (Dec. 15, 2021), https://www.montrosepress.com/news/montrose-high-school-expected-to-drop-indians-mascot-by-june-1-2022/article_a7dc841c-ce24-11eb-9250-c33ba6b5f4db.html (explaining how Montrose High School is changing its mascot in reaction to S.B. 21-116).
 See Saja Hindi, Colorado Lawmakers Vote to Ban American Indian Mascots in Public Schools, Denver Post (June 4, 2021, 8:36 AM), https://www.denverpost.com/2021/06/04/colorado-ban-american-indian-mascots-bill/ (reporting that “Colorado public schools will soon be banned from using derogatory Indian mascots”).
 See Clara Geoghegan, Lawsuit Claims Colorado’s American Indian Mascot Ban Violates Constitutional and CRA Protections Law Week, Colorado L. Week (Nov. 5, 2021), https://www.lawweekcolorado.com/article/lawsuit-claims-colorados-american-indian-mascot-ban-violates-constitutional-and-cra-protections/ (explaining several exceptions to S.B. 21-116’s mascot ban).
 See Colo. Educ. Code § 22-1-133(1)(a) (West 2021) (defining “American Indian mascot”).
 See Geoghegan, supra note 4 (“Schools that keep using Native American mascots past June 1, 2022 are subject to a $25,000 monthly penalty”).
 See Marianne Goodland, Sanford School District Becomes First to Drop Indian Mascot Since Passage of Law Banning Its Use, Colo. Pol. (updated Jan. 4, 2022), https://www.coloradopolitics.com/legislature/sanford-district-mustangs-mascot-indian-replace/article_807224a0-6ce3-11ec-8138-e38070377378.html (reporting announcement of new mascot by Sanford School District).
 See Hindi supra note 3 (reporting that S.B. 21-116 “is about putting a stop to the harm and belittling caricature mascots cause to American Indians, particularly children”).
 See Saja Hindi, Colorado Schools Have 11 Months to Remove American Indian Mascots – and That Can Be Very Expensive, Denver Post (July 2, 2021, 2:18 PM), https://www.denverpost.com/2021/07/02/colorado-american-indian-mascots-schools-costs/ (describing opposition to American Indian mascots).
 See id. (noting statement from sponsor of S.B. 21-116 that National Congress of American Indians has been requesting mascot changes for at least three decades); see also Sue McMillin, New Colorado Law Banning Most American Indian Mascots Forces Schools to Confront Cultural Shifts, Col. Sun (July 18, 2021), https://coloradosun.com/2021/07/18/colorado-indian-school-mascots-illegal/ (noting legislation responsive to “[N]ative American tribes and activists . . . asking school and professional teams for decades to lose their Indian mascots.”).
 See Hindi, supra note 3 (reporting that Ute Nation, Southern Ute Nation, and Northern Arapaho Tribe worked with legislators on S.B. 21-116).
 See id. (describing Colorado State Rep. Adrienne Benavidez’s appeals to studies to support mascot ban).
 See Colo. Rev. Stat. Ann. § 22-1-133 (West 2022). For a discussion of some exemptions, see infra note 14 and accompanying text.
 See Geoghegan, supra note 4 (explaining exceptions to mascot ban).
 See Hindi, supra note 9 (stating that changing mascots can potentially cost schools hundreds of thousands of dollars); see also Goodland, supra note 7 (noting state funds for schools to use).
 See Marianne Goodland, American Indian Mascot Lawsuit May Be Headed for Quick Decision, Col. Pol. (Jan. 3, 2022), https://www.coloradopolitics.com/legislature/american-indian-mascot-lawsuit-may-be-headed-for-quick-decision/article_808d4430-52d3-11ec-8d86-6b151ecd55a3.html (“Both the Yuma school district and Lamar High School estimated the costs to replace mascot-bearing items at more than $200,000 each.”).
 See McMillin, supra note 10 (reporting Lamar school board’s desire to keep their Savages team name, even if they need to disassociate it from Native American imagery to do so).
 For a discussion of the legal challenge to S.B. 21-116 see infra notes 19-23 and accompanying text.
 For a discussion of Native American opposition to the mascot ban see infra note 20 and accompanying text.
 See Geoghegan, supra note 4 (identifying plaintiffs in the lawsuit).
 See Complaint at 4, Marez v. Polis, No. 21-2941, 2021 WL 5814071 (D. Colo. Dec. 1, 2021), https://mslegal.org/wp-content/uploads/2021/11/Complaint-for-Declaratory-and-Injunctive-Relief-U.S.-District-Court-District-of-Colorado-Marez-et-al.-v.-Polis-et-al..pdf (providing examples of inappropriate Native American mascots).
 See id. (arguing S.B. 21-116 precludes neutral or honorific uses of Native American names, imagery as well as derogatory uses).
 For further discussion of Plaintiffs’ constitutional objections, see infra notes 24-29 and accompanying text.
 For further discussion of Plaintiffs’ constitutional and statutory claims, see infra notes 25-30.
 See Complaint at 17-32, Marez v. Polis, 2021 WL 5814071 (asserting four violations of federal constitutional or statutory law).
 For further discussion of how Plaintiffs believe the law violates the Equal Protection Clause, see infra notes 27-28 and accompanying text.
 See Complaint at 17, Marez v. Polis, 2021 WL 5814071 (alleging equal protection violation based on discriminatory treatment of Native American team names).
 See id. at 22-23 (claiming that S.B. 21-116 makes it harder for schools to be named after Native American figures than figures from other racial groups).
 See id. at 25-26 (arguing that S.B. 21-116 is “impermissibly vague”).
 See id. at 26 (asserting that S.B. 21-116, as written and as applied, will chill Plaintiffs’ efforts to lobby schools to honor Native American heritage).
 See id. at 28-29 (setting forth Plaintiffs’ civil rights claim).
 See Preliminary Injunction of Mascot Bill Denied in U.S. District Court, Yuma Pioneer (Dec. 3, 2021), https://www.yumapioneer.com/preliminary-injunction-of-mascot-bill-denied-in-u-s-district-court/ (noting when Plaintiffs filed motion for preliminary injunctive relief).
 See Marez v. Polis, No. 21-2941, 2021 WL 5814071, at *1 (D. Colo. Dec. 1, 2021) (enumerating four factors Plaintiff must meet to earn preliminary injunction).
 See id. (holding that “Plaintiffs have . . . failed to establish irreparable injury absent a preliminary injunction”).
 See id., fn. 2 (noting that other factors apart from irreparable injury also favor Defendant).
 See William A. Jacobson, 10th Circuit Denies Native American Request to Halt Colorado “Mascot” Ban Pending Appeal, Legal Insurrection (Jan. 28, 2022), https://legalinsurrection.com/2022/01/10th-circuit-denies-native-american-request-to-halt-colorado-mascot-ban-pending-appeal/ (reporting Tenth Circuit’s rejection of Plaintiffs’ request for injunctive relief).
 See id. (reporting statement from Plaintiffs’ attorney).
 For further discussion of the financial penalties for non-compliance with the Act, see supra note 6 and accompanying text.