When a team like the Washington Redskins loses to the team with the two-year worst record in the NFL as they did in Sunday’s embarrassing loss to the Detroit Lions, perhaps it’s time to review a bit more than the game film. In fact, if a group of American Indian activists have their way—Pro-Football, Inc.—the organization that is better known by the name Washington Redskins may have to review and discontinue their use of a name that constitutes an insult and offense to Native Americans. A recently filed petition asks the Supreme Court to review a case that was first brought by Native Americans 17 years ago seeking to cancel pro-football’s federally registered trademarks incorporating the term “redskins” as the team’s name.
The plaintiffs, led by Suzan Harjo, are all Native Americans and members of federally recognized Indian tribes who contend that “throughout their lifetimes . . . they have been the target of insult, degradation and humiliation resulting from the use of the derogatory term ‘redskins.’” During the pendency of the suit, one of the most prominent plaintiffs, Vine Deloria Jr., died. Deloria, a Standing Rock Sioux whose book Custer Died for Your Sins brought him widespread acclaim, is among the most respected Native American scholar-activists. A theologian, historian and lawyer, Deloria’s work was committed to dismantling stereotypes and mythology about Native Americans.
It’s hard to imagine a modern-day professional sports team proudly calling itself the Cincinnati Negroes or the San Diego Spics, but as plaintiffs charge in Harjo, the use of the name Redskins for the football team of our nation’s capital city is, for Native Americans, just as offensive. A franchise valued at $1.4 billion, the Washington Redskins team has vigorously fought against efforts to deny its continued use of the name.
At issue is a provision of the Lanham Act which authorizes the cancellation of registered patents that disparage . . . persons, living or dead . . . or bring them into contempt, or disrepute.” The Trademark Trial and Appeals Board with whom the suit was first filed, ordered in 1999 that the patent should be canceled, finding that the Native American plaintiffs had provided sufficient proof that the name of D.C.’s professional football team may “disparage” Native Americans. The victory was short-lived. The decision was reversed by a federal district court and by the federal court of appeals. The courts cited the doctrine of laches to defeat the claims filed by the Native American plaintiffs. Laches is a common law doctrine that bars a party from waiting too long to file suit after they had reason to know their rights were violated. The doctrine is designed to protect defendants from being surprised by plaintiffs who sit on their rights and leave potential defendants in limbo until a time of the plaintiff’s choosing. Laches enables defendants to organize their behavior and their businesses with some expectation that lawsuits challenging their behavior will be brought in a timely fashion.
The application of the doctrine of laches, or even statutes of limitation (which govern by statute the time in which certain kinds of suits can be brought) is a matter of some controversy as it concerns suits involving complex racial charges. Take for instance the suit brought by survivors of the 1921 Tulsa Race Riot. The suit was filed in 2000 after a legislative commission in Oklahoma finally investigated and acknowledged the conspiracy among public officials to cover up the worst race insurrection in our nation’s history. The violent rampage by whites resulted in the deaths of scores of blacks and the destruction of the prosperous black business community, known at the time as “the black Wall Street.” But for years, whites denied that local officials participated in the violence. After the findings of the legislative commission were released, elderly survivors of the riot were promised that the legislature would pass a bill providing reparations to the victims, as the Florida legislature had done after a similar investigation of the Rosewood riots. When the Oklahoma legislature refused to enact reparations legislation, the survivors sued. The court held that the statute of limitations and the doctrine of laches barred the survivors from pressing forward with their claims. The Supreme Court decided not to hear the appeal in 2005.
The American Indian plaintiffs in the Harjo case have reason for greater optimism. The relevant portion of the statute governing challenges to patents, by its explicit terms, states that patents may be canceled “at any time.” Even more interestingly, in a 2001 case, the 3rd Circuit Court of Appeals held that this language means that a claim filed pursuant to this section of the statute “is not subject to any time limit.” That opinion was written by then-judge and now Justice Samuel Alito.
The Washington Redskins may lose their coach and—it’s rumored—their quarterback as a result of the dismal start to their season. But if the Supreme Court grants the writ of certiorari filed by Native Americans in the Harjo case, the Washington Redskins may lose their patent to continue using a name that Native American litigants say is a “disparaging racial epithet.”
Sherrilyn A. Ifill is a regular contributor to The Root.