By Robert Barnes
Washington Post Staff Writer
Tuesday, November 17, 2009
A nearly two-decade legal challenge by Native American activists to the nickname of the Washington Redskins came to a close Monday when the Supreme Court declined to review the group's last loss in federal courts.
The justices declined without comment to reconsider a lower court's ruling that the activists waited too long to bring their assertion that the nickname is so racially offensive that it does not deserve trademark protection.
"Obviously, we're quite pleased; it's been a long road," said Robert Raskopf, a lawyer for the team since the suit was first filed in 1992. "We're not surprised the court didn't see any issue worthy of review."
Philip Mause, who represented the challengers, said the activists were "disappointed" by the court's decision but not yet resigned to accept defeat. A new group of challengers has filed the same trademark cancellation suit in hopes that their slightly different circumstances can avoid the procedural bar that halted this case.
Raskopf said the team is not worried about the new complaint. "I think we're very confident with our likelihood of success," he said.
Through the years, the team has steadfastly defended the use of the Redskins nickname as honoring Native Americans, not disparaging them. When based in Boston, the team was known as the Boston Braves and was renamed in 1933 as the Redskins. The team said in its brief to the court that the new name was "in honor of the team's head coach, William 'Lone Star' Dietz, who was a Native American."
The team became the Washington Redskins in 1937, when it moved south.
Native American groups have persuaded scores of high school and college teams to rename their mascots. The National Congress of American Indians told the justices in a friend-of-the-court brief that the Redskins name is "patently offensive, disparaging, and demeaning and perpetrates a centuries-old stereotype."
But despite vociferous protests, the team has not budged. Under both former owner Jack Kent Cooke and current owner Daniel Snyder, Raskopf said, there has never been "even a whisper" about changing the nickname.
For the most part, though, the battle has been fought on the more mundane grounds of legal procedure, and even a victory by the activists would have cost the team only trademark protection and would not have forced it to abandon the name.
The battle began in 1992 when seven activists, led by Suzan S. Harjo, challenged Redskins trademarks issued in 1967. They won a decision seven years later from the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.
Trademark law prohibits registration of a name that "may disparage . . . persons, living or dead, . . . or bring them into contempt, or disrepute."
Pro-Football Inc., the team's corporate owner, appealed to federal court.
In 2003, U.S. District Judge Colleen Kollar-Kotelly sided with the team, ruling that the activists had not produced enough evidence to show the name was so insulting that it could not be protected by a trademark. She also said the trademark-cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.
She revisited the issue after the U.S. Court of Appeals for the District of Columbia returned it to her, saying the youngest of the plaintiffs might have standing to pursue the case. But Kollar-Kotelly ruled that the challenger, Mateo Romero, waited eight years after he reached the age of majority to file the complaint. She said the delay unfairly penalized the Redskins, who invested millions of dollars marketing the team during that eight-year span.
A three-judge panel of the appeals court agreed that eight years was too long to bring the claim.
The Supreme Court was being asked only to review whether the claim was brought too late, not whether the nickname was offensive.
Mause had argued that the justices should take the case to decide whether disparaging trademarks can be challenged at any time. He cited a decision from the U.S. Court of Appeals for the 3rd Circuit, which was written by then-judge, now-Justice Samuel A. Alito Jr., that he said supported that view.
The case the court declined to hear is Harjo v. Pro-Football, Inc.