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Appeals court turns aside Spirit Lake committee’s effort to save UND's Fighting Sioux nickname

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By Chuck Haga

Forum News Service

GRAND FORKS, N.D. -- In what may well be the final chapter in the long, contentious fight over UND’s Fighting Sioux nickname, the 8th U.S. Circuit Court of Appeals ruled Wednesday that nickname supporters have no legal case against the NCAA for pressuring UND to drop it.

More than three months after arguments in St. Paul, the appeals court upheld the ruling last year by U.S. District Judge Ralph Erickson that the Spirit Lake Tribe lacked standing to sue the NCAA over its policy discouraging the use of American Indian names and images by member schools.

“The committee has not shown that the NCAA acted with discriminatory intent,” the appeals court stated in its opinion. “There is no evidence that the NCAA enacted the policy in order to eradicate Sioux culture, as the committee alleges.”

The appeals court also discounted the committee’s primary contention, that Spirit Lake and Standing Rock Sioux elders authorized use of the name by UND in a sacred 1969 ceremony on the university campus.

“However meaningful the nickname’s grant may have been, there was no contract because there was no indication of mutual intent to create a legal obligation, let alone an obligation sufficiently definite and certain that a court could require its performance,” the opinion states.

“The tribes were apparently free to withdraw their permission to use the nickname,” and — “most importantly” — as the North Dakota Supreme Court had held in an earlier case, “the (State Board of Higher Education) was free to change UND’s nickname.”

The NCAA issued a one-line comment from its headquarters in Indianapolis: “We are pleased with the court’s ruling and look forward to the NCAA, the university and the community moving forward consistently with our policies that are designed to respect Native Americans.”

At Spirit Lake, there was sadness among those Spirit Lake members who saw UND’s use of the Sioux name as honoring their history, heritage and culture, and helping to maintain the tribe’s identity.

“We gave it our best fight, to keep that honorable symbol and name there at UND,” said Frank Black Cloud, a member of the tribe and frequent spokesman for the committee.

Nickname supporters “will continue to look for opportunities to right this wrong and keep the Sioux people in the forefront,” he said. But, for now, “I want to thank all the people who supported us and the proud use of the name and symbol for the past 80 years.”

The decision came as no surprise to Reed Soderstrom, the Minot attorney who has represented the tribe in its fight against the NCAA.

“I have no regrets,” he said. “I wish I could have done more. I just hope history records everything accurately, common sense will become common again and maybe this will surface again.

“I think the Spirit Lake Sioux really got a lousy deal from start to finish.”

Soderstrom said that his efforts to save the nickname and logo were finished.

“My position was to represent the Spirit Lake Sioux in a legal matter, and that’s been exhausted,” he said. “My part is over.”

He said he doesn’t expect there to be another petition drive to put the issue before voters again.

“When we had the June vote last year, the people of North Dakota spoke,” Soderstrom said. “There may be some who try, but as a collective effort it was over after that June referendum.”

Sharon Carson, a UND professor who has worked with campus committees seeking to retire the Fighting Sioux nickname and logo, welcomed the decision but said there was “no triumphalism” in her reaction.

“Nobody feels good about seeing people disappointed,” she said, referring to ardent nickname supporters who fought to preserve an identity that had been part of the university and its athletic programs since 1930.

“No community can endure decades of a racially charged controversy without incurring costs,” Carson said. “It’s divisive and creates a legacy of hard feelings and misunderstandings. We have a lot of hard work to get to where this community can be.”

Under a special court rule, Pennsylvania State University law student Eric Lauerman argued the tribe’s case before the three-judge appeals panel on Feb. 14. Lauerman had interned last summer with Soderstrom.

Lauerman argued that the Sioux people of the Spirit Lake Tribe are “indispensable parties” who should not have been denied a seat at the table as UND, the state of North Dakota and the NCAA haggled over the nickname.

The Sioux also should be acknowledged as “a protected group” entitled to protection against discrimination, Lauerman said, arguing that the NCAA discriminated against them by coercing UND and the State Board of Higher Education to drop the nickname and associated Indian head logo.

The tribe’s Committee for Understanding and Respect, with Archie Fool Bear as representative of pro-nickname members of the Standing Rock tribe, filed its lawsuit against the NCAA on Nov. 1, 2011. Though the issue divided Spirit Lake, the lawsuit was announced in the tribe’s headquarters in Fort Totten, N.D., with members of the council arrayed alongside committee leaders and their attorneys.

U.S. District Judge Ralph Erickson heard arguments in the case on April 19, 2012, and on May 1 dismissed the lawsuit, holding in part that the tribe lacked standing to challenge the policy of a voluntary private organization.

The tribe filed its appeal two weeks later, citing the 1969 ceremony and accusing the NCAA of adopting its 2005 policy discouraging the use of Indian names and imagery “with the specific intent to discriminate against the Sioux people” and to infringe on their contract rights.

In June 2012, voters in the North Dakota primary election overwhelmingly endorsed retirement of the nickname, and the State Board of Higher Education directed UND to retire the historic nickname and Indian head logo, which the university has done.

Duaine Espegard, president of the State Board of Higher Education, welcomed Wednesday’s court decision.

“I’m glad it’s finally over and the university can move on,” he said.

While many fans have held tight to Fighting Sioux regalia and identity, UND athletic teams have since competed officially as “North Dakota” and “UND” while the university complies with a state-imposed nickname moratorium until 2015.

Attorney Jonathan Duncan, representing the NCAA, had told the appeals court in February that Spirit Lake had thrown a dozen allegations at the NCAA, including violations of copyright and antitrust law, but the only issue before the appeals court was “whether these plaintiffs have standing” to sue the NCAA.

He said they had not presented facts showing injury caused by the NCAA’s policy discouraging the use of American Indian names and imagery or by the policy’s application to UND.

The decision on the nickname “belongs to the State Board of Higher Education and nobody else,” Duncan said.

The policy on the use of American Indian names and imagery was broadly aimed, and exceptions were allowed in cases — notably Florida State University’s Seminoles — when schools could demonstrate they had authorization from the tribes involved.

In a 2007 legal settlement with the state of North Dakota, the NCAA had agreed to allow UND and the State Board of Higher Education three years to gain such an exemption, but that effort failed when Standing Rock refused to alter its longstanding opposition to use of the name despite an effort led by Fool Bear to put the issue to a reservation-wide vote.

Nickname defenders’ key argument throughout the legal maneuvering has been that in 1969 tribal leaders from Standing Rock and Spirit Lake “converged at UND and held a sacred ceremony” in which UND was given the right to use the Fighting Sioux name.

Exactly what was said and meant at the 1969 ceremony has been a matter of dispute, but Lauerman told the appeals court judges that “to belittle this ceremony is blasphemous, and that is what the NCAA has done.” Also, not allowing the Sioux a seat at the table during negotiations reflected “blatant disregard” for the “sacred ceremony.”

Judge Michael Melloy challenged Lauerman’s assertion that UND and the Sioux had entered into a contract in 1969. The name was a gift, the judge said, “and a gift does not imply a contract.”

Lauerman replied that UND had established many Indian-related programs, such as the Indians into Medicine program and an Indian Studies curriculum.

“The evidence is there,” he said, “that there was a contract, and it grew out of that 1969 ceremony,” and the NCAA had interfered with that, forcing UND to surrender the widely revered nickname by threatening sanctions that could severely damage the athletic program.

“They backed down,” Lauerman said of UND officials. “They folded because of all the money they make off athletic competition.”

Duncan, who formally withdrew from representing the NCAA in the case earlier this year when he took a new job, was asked in February why the NCAA policy had not been applied to such schools as Notre Dame, which calls itself the Fighting Irish and uses a representation of a leprechaun as a mascot.

No leprechaun has ever “shown up at NCAA headquarters and demanded” a change, he said, while the association has received a great many appeals from American Indian individuals, associations and tribes.

The Standing Rock Sioux Tribe has “on at least three occasions” formally asked that use of the Sioux name as a nickname stop, he said.

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