A lawsuit filed this week in U.S. District Court challenges the constitutionality of a new Colorado law requiring public schools to get rid of Native American mascots, logos and imagery by next summer or face massive fines.
In its opening salvo, the lawsuit suggests that a law that similarly forbade the use of the name or image of a Black American such as Martin Luther King for a school would not be considered.
“Erasing Native American names and images from the public square and from public discussion echoes a maneuver that plaintiffs have previously seen used by the eradicators of Native American heritage,” the lawsuit says. “Colorado repeats the same mistake in its paternalistic assumption that it must protect Native Americans by erasing cultural references to them and to their heritage.”
It says the plaintiffs “oppose the use of American Indian mascot performers and caricatures that mock Native American heritage.”
The plaintiffs intend to file a motion this week seeking an injunction that they hope will immediately halt implementation because districts can’t wait for the lawsuit to be heard and risk being fined $25,000 a month if they’re not in compliance, said William Trachman, an attorney with Mountain States Legal Foundation in Lakewood.
Five individuals – four of them with ties to Yuma schools and one a Lamar High School graduate – and the Native American Guardians Association are listed as plaintiffs.
NAGA has been a controversial player in the mascot fight nationwide, with many people saying the organization is not representative of most tribes. It supported a successful school district lawsuit in Neshaminy, Pennsylvania, that allowed the district to keep its Redskins moniker.
The legal battle cost the school district $500,000, according to LevittownNow.com.
Yuma schools use an Indian mascot, and Lamar’s mascot is Savages, and both districts are reluctant to change mascots. Lamar alumni have sold yard signs and banners to raise money for NAGA’s lawsuit, although the district’s Board of Education declined in July to financially back legal efforts to overturn the state law.
However, Lamar Board Member Jake Chamberlain attended Colorado Commission of Indian Affairs’ September meeting and asked for an October meeting to show the state board its plan to keep the Savage nickname and remove imagery. The commission is overseeing implementation of the state law.
“We have taken time to pause and reflect on what it really means to be a Savage,” he told the CCIA board. “Our intent is not to argue or overstep, but define who we really are – fierce, formidable, strong, brave competitors.
“We are confident the plan we propose will meet statutory requirements,” he said.
He said the district was worried about timing, because it needs time to implement the plan, or come up with something different should CCIA object to it. A meeting with CCIA is planned for Nov. 9.
The lawsuit claims that the state law violates two clauses of the 14th Amendment – equal protection of the laws and political process discrimination based on race. It also asserts that the vagueness of the law violates the First Amendment right to petition.
Spokespersons for the Colorado Attorney General’s Office and the Colorado Commission of Indian Affairs declined to comment on the lawsuit. The heads of both agencies are named as defendants, as are several other state officials, including Gov. Jared Polis and state education commissioner Katy Anthes.
The legal action comes as many of the 26 schools (within 14 districts) deemed not in compliance with the law are moving to make changes to meet the June deadline. The Colorado Commission of Indian Affairs, which approved the list at its quarterly meeting in September, also must vote on whether changes made by schools are sufficient, according to a letter recently sent to school districts.
The commission will have three meetings before the deadline, with the last one in May.
Most schools have sought community and student input on potential name changes, including surveys on suggested new mascots. At least three schools have already changed – the Frederick High School Warriors are now the Golden Eagles and the two Campo schools have eliminated their Warrior mascot.
The changes at Frederick High School to rid the school of Warrior images are expected to cost $1 million, said Kerri McDermid, chief communications officer for the St. Vrain School District.
Campo Superintendent Nikki Johnson said in an email that the schools have long been a part of the South Baca Patriots cooperative for athletics but had continued to use the Warrior mascot within the schools.
Images in the southeast Colorado school gym were painted over during renovations in the summer, and an image on the gymnasium floor was to be removed this fall, she said. She said she was unaware that changes they made had to be reported to and approved by the CCIA.
The Sanford School District, which accounts for two schools on the list, has been working through surveys in the San Luis Valley community to narrow its list of potential new mascots to replace the Indians. The two in final contention are the Mustangs and the Wolves/Timberwolves, according to the district website.
The Yuma School District was working through a list of 14 suggested mascots in September, with a target of selecting a new one by Nov. 15. Email and phone messages to Superintendent Dianna Chrisman were not returned, and it’s unclear if the district is moving forward with the plan.
Four of the plaintiffs in the lawsuit are from Yuma. Two are unnamed minors who attend the high school. The others are 2010 Yuma High School graduate Aubrey Roubideaux, a Rosebud tribal member who lives in Denver, and Donald Smith, senior pastor of the Yuma Christian Church and former teacher who is of Cherokee heritage, according to the lawsuit.
Smith said Wednesday that he could not comment on the lawsuit and referred all questions to the attorneys.
Demetrius Marez, a 1993 graduate of Lamar High who says he is 39% Diné, also is a named plaintiff. During a meeting this summer, he pleaded with the Lamar school board to retain the Savage mascot, saying Senate Bill 116 is an attempt to “erase” his culture.
Montrose School District posted a mascot transition plan in October, along with an initial estimate of $215,000 in costs, including repainting gym walls, removing metal artwork, scoreboard refurbishment or replacement in four gyms and removing various logos throughout buildings.
Committees are working on selecting new mascots and a recommendation is expected to be made to the Board of Education on Dec. 14, according to the plan.
All the movement by schools and districts now is why the plaintiffs in the lawsuit are seeking an injunction.
“Senate Bill 116 includes a deadline of June 1, 2022, before all Colorado public schools must alter their names, logos, letterhead and other imagery,” the lawsuit says. “If the law survives between now and then, it is highly unlikely that any school choosing to invest the time and money into changing its name will return, even if the law is ultimately struck down subsequently.”
Although NAGA has supported school districts and professional teams throughout the country as they fought to retain Native American mascots, this is its first lawsuit and Trachman and NAGA lawyer Scott Cousins said it could be precedent setting.
The two organizations — NAGA and the Mountain States Legal Foundation — joined forces during the summer, just after the state law took effect.
“The law had just passed and it drew our attention because of our position in Colorado,” Trachman said, noting that Mountain States has a long history of taking up equal protection issues. “We connected over the summer. It was a good marriage on an issue that we were invested in that was in our region of the country.”