Of Laches, Redskins and the Limits of Law

Laches. This equitable doctrine allows a judge to dismiss a case because a party has slept on its rights, having waited too long before bringing an action in court.

You’ve heard of it. Have you ever seen it applied? I rarely have. So I love it when it happens.

The Supreme Court recently refused to hear an appeal of a lower court’s dismissal of a lawsuit against the NFL’s Washington Redskins, upholding a lower court’s dismissal of the case based on the doctrine of laches. Whether or not they have a colorable claim under the law is a separate question since they waited too long to bring their claim.

The lawsuit was filed in 1992, when seven activists challenged a Redskins trademark issued in 1967. They won seven years later in a decision by the Trademark Trial and Appeal Board, which said the name could be interpreted as offensive to Native Americans.

The team appealed to federal court. Judges at the district and circuit levels said the activists’ trademark cancellation claim was barred by the doctrine of laches, which serves as a defense against claims that should have been made long ago.

The activists argued that disparaging trademarks can be challenged at any time, citing a decision from the U.S. Court of Appeals for the 3rd Circuit. The decision was written by then-judge Samuel A. Alito Jr., who now sits on the Supreme Court.

But the U.S. Court of Appeals for the D.C. Circuit said that was merely a “suggestion” of how to interpret the law.

Now I’m not big on changing team names in most cases, and certainly not using the courts to do so. I wonder whether we get into these disputes and end up making much ado about nothing. However, I must admit that my growing animus toward team owner Daniel Snyder may contribute to my interest in this story.

But assuming that the term Redskins has little or no racial prejudice embedded seems delusional, despite some disagreement over the origin of the term.

Whatever said disagreement is though, the  only substantive legal ruling holds that the term “Redskins” is disparaging and a trademark in that name violates the Lanham Act, which prohibits issuance of trademarks “…which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” applies. Lanham Act § 2, codified at 15 U.S.C. § 1052(a).

Whatever the original meaning of the word, many today view the term as frought with prejudicial and racist overtones. So how does one define disparaging? The Trademark and Appeal Board offered this test in ruling that the term “Redskins” is disparaging in the Harjo case:

First, the Court or Board determines the likely meaning of the matter in question [taking into account, not only dictionary definitions, but also the relationship of the matter to the other elements in the mark, the nature of the goods and/or services, and the manner in which the mark is used in the marketplace in connection with the goods and/or services;] and, second, whether in view of the likely meaning, the matter is scandalous to a substantial composite of the general public.

So the law is, what the law is. Right? Substantive principles are limited by reasonable procedural rules in order to promote stability and reliance on settled matters of law. Here, the law prohibits both disparaging trademarks (like “Redskins”) and dismissal of cases under equitable principles (like laches).

That’s one way to view it, and is beneficial in the sense that it recognizes the limits of law in dealing with situations like this. There are, after all, myriad other ways to challenge the name – boycotts, PR campaigns, congressional hearings, etc.

But on the other hand, because Native Americans aren’t a large market and the Supreme Court has ruled, it doesn’t really matter much does it? At least that’s how the argument goes.

I do wonder sometimes, though, how symbols like this keep our prejudices alive for another generation, particularly against those who lack the political clout of other groups who have had great success in turning the tables against such mentalities. (On a side note, how on earth do you measure that? And where do you draw the line? Can you even develop a justiciable standard? What if data show opinion is at-best mixed, like it is here, among the community in question?)

In writing this, I don’t pretend to understand the plight or mentality of Native Americans just because “I have friends who are Native American,” but I did receive this interesting e-mail from one of those friends last week:

Some who share my background have deep offense at any reference to brave, warrior, chiefs, etc. I understand their position however I don’t share the same offendedness, (if that’s a word) with exception for the redskins. I feel as long as there are cowboys, and patriots, and other “human” mascots out there, then braves and warriors are not only debatable, but usually picked from a place of affection, or at least respect indicating power, or fierceness.  Furthermore some young natives use this as a positive, beading these mascot images and wearing them a  kind of a subconscious national endorsement on their identity. “yeah we are still warriors” etc…

With that said, still many non Natives don’t know the origins of the term redskin. Redskin was a derogatory term used in its era equaled only by the modern day “N” word.  I believe those in DC changed it from braves to redskins for prejudicial reasons… (they were Boston Braves first before they moved to DC). DC had problems with the “Indian Agenda” during that time, creating policy that kept flipping between isolation, assimilation & termination.  The term redskin was the term of choice for the terminationalists.  I think this is why offense at “redskin” is shared by most natives… We are split on many of the others, but “redskin” is really a slap in the face to a people group, by a team representing the Nation’s Capital.

If my friend is accurate in describing how Native Americans generally view such things (and I have no reason to question that), there’s some wiggle room with the use of Native American mascots, but this suggests at least some Native Americans think the Washington NFL mascot goes too far in disconnecting the mascot from positive qualities of Native American peoples.

But if we accept the law as-is, we have reached the ends of the remedy it can provide against enforcement of this particular disparaging trademark. So the law needs to change, the team name needs to change in response to other types of pressure, or we simply need to accept that vestiges of prior prejudice remain that, nonetheless, might still serve to teach us valuable lessons of our mistakes.