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Plaintiffs in Redskins suit ponder Supreme Court filing

WASHINGTON – Some Native American plaintiffs in the long-running dispute against the proprietors of the Washington Redskins’ football name and logo want the U.S. Supreme Court to hear their case.

After facing a setback in mid-May, when the U.S. Court of Appeals in Washington upheld a lower court’s decision that favored the football team on a legal technicality, the Native plaintiffs view the high court as one of several options they will soon pursue.

“It is one path that we are leaving open at this point,” said Philip Mause, a lawyer for the six Native American plaintiffs in the case, which include respected elders and Indian leaders. “This case is far from over.”

The plaintiffs have long battled to rid the Washington football team of its Redskins name and imagery, as many American Indians believe them to be racist and offensive. Some elders, scholars and tribal members point out that the term has historically been used as a derogatory reference to American Indians, in a similar way that the word “nigger” has been wrongly used toward blacks.

Mause noted that the appellate decision, which was made by a panel of the court’s judges, could also be appealed to be heard by the full appellate court.

A final decision must be made soon, as the plaintiffs have 90 days from the appellate decision in mid-May to present their petition to the Supreme Court. They have less time, 30 days from the court’s decision, to make their appeal to the full appellate court, if that is the route they choose to pursue.

The appellate decision, while not a surprise, according to Mause, was frustrating, as the plaintiffs wanted the court to side with them in their 17-year fight centering on whether the football team’s trademark is racially offensive.

Instead, the court agreed with a 2003 decision by U.S. District Judge Colleen Kollar-Kotelly. She ruled that the plaintiffs waited too long to challenge the trademark for the team, which was first issued in 1967. She 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.

Before that decision, the Natives had seen a panel of the U.S. Patent and Trademark Office cancel the team’s trademarks altogether in 1999.

Kollar-Kotelly’s 2003 decision, as well as the new appellate decision, served to moot that trademark panel’s revocation, and the panel has since said it will wait to decide on the trademarks of the team until the legal process has been completed.

Kollar-Kotelly and the appellate court have never addressed whether the Redskins name is offensive or racist.

Mause said the Supreme Court would not be asked to determine whether the name is racist, but rather whether established trademark law did require the plaintiffs in this case to file sooner.

If the court ultimately agreed with the plaintiffs’ argument – that they filed in a timely manner under the law – the facts of the case involving racism would still have to be heard on the circuit level.

Richard Guest, a legal expert with the Native American Rights Fund, said there are two types of cases the Supreme Court tends to hear: Those that deal with decisions that diverge on the circuit court level, and those that are deemed as being of “exceptional importance.”

This case would seem to fit both criteria, although it is always difficult to get the court to choose to hear a case out of the thousands of requests it receives each year, Guest said.

Mause noted that circuit courts have issued divergent opinions in the particular area of trademark law involved in this case, and an argument could be made in terms of psychological harm, civil rights and other issues that this case is of high importance.

Guest said, too, that while the Supreme Court has ruled unfavorably for tribes in some recent instances – thus making tribal officials increasingly wary of going there – this case would not be classified as one that would likely harm tribal rights if a negative high court decision were issued.

“What this case does is raise more visibility to the issue and help educate the public,” Guest said. “It’s about getting solid information about this issue out in the mainstream.”

NARF has yet to publicly support a Supreme Court route for the case, but Guest said the organization’s leaders are discussing the matter with the Native plaintiffs and their lawyers.

If they were to support the case, they could file an amicus brief highlighting the opinions of psychologists who believe the name and imagery to be detrimental to the development of Indian youth.

“It’s not an issue where the Supreme Court could limit the authority of tribal governments or tribal lands,” added Guest. “This is an opportunity to win something.”

Even without any appeals to the Supreme Court or to the full appeals court, there is another case in the wings featuring younger Indian plaintiffs that is waiting to be argued.

Mause said that one of the downsides to keeping up the fight with the current plaintiffs is that it would delay action on any new case that attempts to address the age issue of the plaintiffs that has been troublesome to the lower courts.

After the appellate decision, the Redskins’ lawyers said the issue should be dead, as they believe it should have been fought in 1967 when the team’s initial trademarks were issued.