Supreme Court accepts case linked to NFL team's racist mascot

Thursday, September 29, 2016

The U.S. Supreme Court has agreed to hear a case that could help the Washington NFL team defend its racist trademarks.

In an order on Monday, the justices granted a petition in Lee v. Tam, a closely-watched dispute between a musical group known as The Slants and the U.S. Patent and Trademark Office. The Washington team is not a party to the case but believes the outcome will have a direct impact on its battle against Native youth activists.

At issue is the constitutionality of the Lanham Act, a federal law that prohibits the registration of symbols that "disparage" people or bring them into "contempt" or "disrepute." The Patent and Trademark Office cited the law in refusing to register a trademark for The Slants and in canceling the trademarks for the NFL team.

The Federal Circuit Court of Appeals, however, invalidated a criticial portion of the Lanham Act as part of a lawsuit filed by The Slants. That decision will now be reviewed by the Supreme Court.

A band from Oregon called The Slants won a significant decision in federal court that the Washington NFL team hopes will protects its racist trademarks. Photo: Facebook

The NFL team filed an amicus brief that urged the justices to hear The Slants case, but also filed a separate petition in its own case, known as Pro-Football, Inc. v. Blackhorse. The petition asked the Supreme Court to hear its lawsuit even before 4th Circuit Court of Appeals has a chance to rule on the matter.

The Supreme Court has not yet announced whether it will accept or decline that petition but an answer could be coming shortly because the it was considered at a conference on September 26, the same day Lee v. Tam was reviewed.

The Blackhorse case originated with six young Native activists who convinced the Patent and Trademark Office to cancel the NFL team's racist trademarks because they are disparaging to Native people. The team challenged the ruling in court but a federal judge in Virginia sided with the youth in a July 2015 decision.

"The record contains several dictionaries defining 'redskins' as a term referring to North American Indians and characterizing 'redskins' as offensive or contemptuous," Judge Gerald Bruce Lee wrote at the time. He also rejected the team's request to undermine the Lanham Act.

Suzan Shown Harjo, shown here at the September 21, 2004, opening of the National Museum of the American Indian in Washington, D.C., has been at the forefront of the battle to eliminate harmful stereotypes. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

The team subsequently appealed to the 4th Circuit, which hears cases from Virginia. Oral arguments have tentatively been scheduled in Richmond, the state capitol, for the second week of December, according to an order from the court.

The case is being closely watched across Indian Country. The Navajo Nation, the National Congress of American Indians, the National Indian Education Association, the United South and Eastern Tribes and dozens of Indian organizations and Native student groups have filed briefs in support of the Native youth.

The team's decision to pursue the case in Virginia was extremely strategic. An earlier version of the dispute that was led by Suzan Shown Harjo, a Presidential Medal of Freedom recipient, and other Native activists was previously heard by the federal court system in Washington, D.C.

Although the D.C. Circuit Court of Appeals eventually ruled against the activists on a technical issue, the team chose a different venue to fight the Native youth. The federal court in Virginia and the 4th Circuit almost never hear cases involving Indian interests whereas the federal courts in D.C. do so on a regular basis.

Additionally, the team had the option of going directly to the 4th Circuit but chose to prolong the dispute by asking a federal judge to hear the Blackhorse case. The team employed the same tactic in Harjo's case even as it claimed that delays harm its $2.95 billion enterprise.

Federal Circuit Court of Appeals Decision:
In Re Simon Shiao Tam (December 22, 2015)