WASHINGTON – With the U.S. Supreme Court unmoved to take up a long-running suit focused on removing the controversial Redskins football team trademark, a call is being put out for younger Indian plaintiffs to take the next route of legal action.
Philip Mause, the lead lawyer for the Indian plaintiffs in Harjo v.Pro-Football, said he was let down to learn Nov. 16 that the high court would not consider the merits of the case.
The suit, which had been ongoing since 1992, centered on the idea that the teams’ trademark should be removed because it is disparaging to Native Americans.
Tribal elders, psychologists, historians and others have said the name is harmful, noting that it is a derogatory reference to American Indians, and has been historically used in a similar way that the word “nigger” has been wrongly used toward blacks. Historically, too, the word “redskins” was used by the U.S. government as a way to refer to bounties placed on scalped Indian heads.
“We are disappointed, but not shocked by the outcome – it’s always a long shot getting the Supreme Court to hear writ of certiorari petitions,” Mause said.
Still, some legal experts thought the court might be especially interested in hearing the case, since it focused on decisions that appear split in lower courts. Plus, one of the justices, Samuel A. Alito, had previously ruled in one of those lower court rulings.
As is common in many cases, the justices did not say why they chose not to reconsider a lower court’s ruling that said the plaintiffs should have made their legal argument sooner.
The appeal to the high court centered on a 2003 decision by U.S. District Judge Colleen Kollar-Kotelly who found that the plaintiffs waited too long to challenge the trademark for the team, which was first issued in 1967.
The judge later clarified her decision, writing that the youngest plaintiff turned 18 in 1984 and therefore waited almost eight years after coming of age to join the lawsuit.
Kollar-Kotelly indicated that if the name was truly disparaging, the suit should have been filed earlier – implying that someone needed to file a suit as soon as they were legally able.
No judges have ever addressed whether the Redskins trademark is offensive or racist.
Now, a legal team is prepping to try to meet the perimeters of Kollar-Kotelly’s judgment.
Six younger Indian plaintiffs who range in age from 18 to 24 have already been assembled and have filed a similar suit, Blackhorse v. Pro-Football, to challenge the offensive team name and logo.
Mause, a partner at Drinker Biddle & Reath in Washington, said more young Native plaintiffs – the closer to age 18, the better – are invited to join the case.
“They need to get signed on soon,” the lawyer said. “Because once it gets going, it’s hard to add new people.”
The first step for the younger plaintiffs will be to make their case before a board of the U.S. Patent and Trademark Office. The panel already ruled in favor of the older Indian plaintiffs in the late-1990s.
Mause hopes that the timeframe for the new case will be much shorter than the 17 years it took Harjo to get turned down by the Supreme Court.
He said the findings of the Harjo case should expedite the process, at least in the proceedings before the trademark board.
Richard Guest, a legal expert with the Native American Rights Fund, said it was disappointing that the Supreme Court didn’t take on the case, but he is hopeful for success with the younger litigants. NARF played a role in gathering amicus briefs in support of the Harjo case.
“Whether measured from the date of registration of the trademark in 1967, or whether measured from today, it’s disparaging.
“You can’t get around the fact that the name Redskins is on par with other pejorative terms for minorities.”
Guest predicted the Redskins owners and lawyers will continue to defend their ground, but he noted that more newspaper editorials and public comments have been produced against the team’s trademark this year alone than in any times past.
In response to the Supreme Court’s decision not to take on the case, lawyers for Pro-Football said they weren’t surprised the court didn’t see any issue worthy of review.
Mause added that it’s clear the football team wants to delay a decision on the merits as long as it can.
“But the tide of public opinion is turning on them, so time is not on their side.”