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Redskins litigants press Supreme Court action

WASHINGTON – A group of Native Americans is asking the U.S. Supreme Court to hear their case calling for an end to the controversial trademark of the National Football League’s Redskins team name and logo.

Lawyers for the case’s six Indian plaintiffs filed a writ of certiorari petition with the high court Sept. 14.

The petition asks the court to review a lower court decision that sided against the Native Americans based on a statue of limitations-based legal concept known as laches – which the petition asserts is not applicable in this case.

The case, which has been ongoing since 1992, is known as Suzan Harjo v. Pro-Football. Its lead plaintiff, Suzan Shown Harjo, is a well-known Cheyenne and Hodulgee Muscogee advocate for Native American rights. Several other respected Indian leaders and elders are involved in the litigation.

Lawyers for the owner of the team have long argued that its name and logo – depicting an Indian head and feathers – should continue.

The Indian plaintiffs disagree, believing the trademark is unlawful largely because the team name and logo are racist and offensive.

Elders, scholars and tribal members point out that the “redskins” 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.

Historically, the word “redskins” was also used by the U.S. government as a way to refer to bounties it placed on scalped Indian heads, according to historians and legal experts.

Philip Mause, a lawyer for the plaintiffs, said it is “very important” for the Supreme Court to decide the case based on its merits – and, in turn, help come to a conclusion that the name and logo should be removed.

He said the petition makes an argument that there is precedent for overturning the lower court’s statute of limitations-based decision, including a Third Circuit decision made by Samuel A. Alito, a current justice on the high court.

“We have a strong argument that laches should not be applicable,” Mause said.

The U.S. Court of Appeals in Washington came to a contrary conclusion in May when it upheld a 2003 decision by U.S. District Judge Colleen Kollar-Kotelly. She ruled that the Indian 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.

Mause, a partner at Drinker Biddle & Reath in D.C, said the statute of limitations-based ruling is not applicable in this case. He believes Alito will agree, especially if he takes the time to review the petition.

When Alito served on the U.S. Court of Appeals for the Third Circuit prior to joining the Supreme Court, he ruled on a case involving laches in a way that is divergent to Kollar-Kotelly’s reading of the law.

Before Kollar-Kotelly’s decision, the plaintiffs saw a panel of the U.S. Patent and Trademark Office cancel the team’s trademarks in 1999. But the judge’s decision, as well as the more recent 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 courts never addressed whether the Redskins name is offensive or racist.

Mause said it will be difficult to get the Supreme Court to take on the 431-page petition. The court usually decides to take on few of hundreds of petitions it receives each year.

Legal experts familiar with the case said Native American organizations and other groups are expected to file amicus briefs in support of the petition within a month of its filing.

The National Congress of American Indians and the Native American Rights Fund have already contributed to helping file the petition, Mause said.

Defense lawyers did not respond to requests for comment. They have 30 days from the filing date to respond to the petition in court.