In 2021, the Colorado General Assembly enacted SB 21-116, a law that generally prohibits Colorado public schools from having Native American “mascots”. To name and shame schools that bore sports team names like “Indians” or “Warriors,” the law delegated authority to the Colorado Indian Affairs Commission to bring those schools into compliance.
We represented the Native Americans who tried to stop the law from coming into effect. But unfortunately, the court dismissed our clients’ case, finding that our clients were not directly harmed by the law, even though it sought to eliminate American Indian names and images in Colorado schools. Now, without legal recourse, it will be up to the citizens of Colorado to demand change from the state legislature.
Originally, the law might have seemed quite simple. But that was not the case. Most notably, the Legislature’s definition of “mascot” is extremely broad and includes not only sports team nicknames, but also names on logos and pictures on school letterhead. This means schools have had to hide or destroy old yearbooks, sports team shirts and trophies. Some schools, like Campo School District, even destroyed their historic school murals of Native American warriors.
Nor can the law be read literally. At first glance, it covers schools that are named after Native American tribes, traditions, or individuals. For example, Ouray High School, whose sports team name is the Trojans, is technically not in compliance with the law because it is named after Chief Ouray of the Ute tribe.
But Colorado knows it could never force schools like Ouray, Cheyenne Mountain, Cherokee Trail, Pagosa Springs, Pawnee and Arickeree to change all of their school names. So what did they do? They invented a geographical exception and inserted it into the application of the law, to save the Colorado legislature from its errors.
The law also has the strange effect of disfavoring schools that would honor American Indians. For example, during our litigation, we took the testimony of the director of the Colorado Commission on Indian Affairs, Kathryn Redhorse. Ms Redhorse acknowledged that a school named after Chief Sitting Bull would not be able to use a historically accurate and respectful image of its namesake on its letterhead. And surprisingly, even the name “Sitting Bull” could never appear on the logo of such a school. Of course, it’s ironic that no such restrictions exist for Custer High School, named after General George Custer.
In addition, Colorado has also expanded the scope of the law in other places. For example, he issued guidelines prohibiting schools from using words that were even “associated” with American Indians. The Yuma School District, for example, wanted to drop its “Indians” mascot and become the Yuma “tribe.”
But this was too closely associated with American Indians, even though the word “tribe” is used in unrelated contexts (such as the twelve tribes of Israel). So, faced with the rejection, Yuma decided to forgo using a mascot for the time being.
Similarly, Lamar High School wanted to remain the Lamar Savages (or, alternatively, the Lamar Savage Thunder) but remove all Native American references and imagery. But no luck. The CCIA said the word “savage” was deemed too offensive in any context, and Lamar narrowly avoided a massive financial penalty at the last minute. That would have been $25,000 a month, by law.
Recently, the commission even voted to add 10 more schools to its list, all of which have a “Thunderbird” mascot. The Thunderbird is a mythological creature that has been historically, but not exclusively, associated with American Indians. These schools are therefore now on the list to change their mascots.
A CCIA commissioner even expressed distaste for schools with feathers in their logos, as feathers might be associated with American Indians. Of course, feathers are also associated with… birds. But the sad truth is that schools can be sure that enforcement of the mascot ban will continue indefinitely and there will be surprises along the way.
The schools, for their part, agree. After all, they get their money from the state of Colorado and generally want to avoid biting the hand that feeds them. And in dismissing our case, the judge noted that the primary harm is to the schools, not our customers.
But that’s not entirely accurate.
Because the next time a school is considering naming itself after a Native American individual, tradition, or tribe, they’ll just avoid the legal headaches and name it after something that couldn’t get them in trouble. . On the one hand, if a school is named after a white person, that’s clear. But if he is named after an American Indian, he could be in legal trouble. This is exactly what worries our American Indian customers.
There’s been a lot of talk lately about “cancel culture”. Here, culture has been literally canceled. And our Native American customers have been told that representations of their heritage are now illegal. But it turns out that the doors of the courthouse are closed to them. Now the only solution is with the citizens of Colorado and its legislature.
William Trachman is the General Counsel for the Mountain States Legal Foundation and a former Deputy Assistant Secretary for Civil Rights at the United States Department of Education. Erin Erhardt is an attorney at the Mountain States Legal Foundation.