Monday, November 30, 2009

Supreme Court Update Available

With the beginning of the October 2009 Term, much of the attention and speculation has been focused on the addition of Justice Sotomayor to the Court, as well as the possible retirement of Justice Stevens at the end of the term. The implications for Indian country as a result of these changes are still unfolding, but at present, Indian country is 0 for 5 before the Roberts’ Court.

To date, no Indian law cases are currently pending before the Court on the merits. In a disappointing outcome, on November 16, 2009, the Court denied review in Harjo v. Pro-Football, Inc. The D.C. Circuit’s decision held that the doctrine of laches (i.e. long delay in bringing lawsuit) precluded consideration of a petition seeking cancellation of the “Redskins” trademarks owned by Pro-Football, even though the Trademark Trial and Appeals Board’s found that the trademarks disparaged Native Americans. The Tribal Supreme Court Project coordinated four amicus in support of the petition: (1) the NCAI-Tribal Amicus Brief which summarizes the efforts of the Native American community over the past forty years to retire all Indian names and mascots; (2) the Social Justice/Religious Organizations Amicus Brief which focuses on the social justice and public interests present in the case; (3) the Trademark Law Professors’ Brief which supports and enhances the trademark law arguments put forward by petitioners; and (4) the Psychologists’ Amicus Brief which provides an overview of the empirical research of the harm caused by racial stereotyping. Attention will now focus on the Blackhorse v. Pro-Football, Inc. litigation which was brought in 2006 by young Native Americans in an effort to avoid the laches defense, and then stayed pending the outcome in the Harjo case.