Spirit Lake's lawsuit against NCAA could affect ND Legislative action on nickname
FORT TOTTEN, N.D. -- A lawsuit filed in federal court today by Sioux Indians who support UND's use of the Fighting Sioux nickname could affect next week's reconsideration of the issue by the North Dakota Legislature, House Majority Leader Al Carlson, R-Fargo, said.
Attorneys representing the Spirit Lake Sioux Tribe and nickname supporters at Standing Rock filed the lawsuit against the NCAA in U.S. District Court in Fargo, following through on their promise to ramp up the fight to save the nickname.
"I think it's an issue to address," Carlson said, "and then it will be up to the Legislature to decide" whether to sustain, amend or repeal the law he shepherded through the regular 2011 session, mandating the nickname's continued use by UND.
The lawsuit was filed on behalf of the Spirit Lake Tribe and Archie Fool Bear, individually and as a representative of Standing Rock petitioners who sought a reservation-wide referendum on the nickname issue. It alleges that the NCAA's efforts to force retirement of the name and logo "violate Native American civil rights, equal protection rights and religious rights."
The 2007 settlement agreement that ended UND's suit against the NCAA, in which UND agreed to drop the Sioux name if it failed to win namesake approval from both tribes, is not a valid settlement because the tribes were not directly involved, said Reed Soderstrom, a Minot attorney representing the Spirit Lake Committee for Understanding and Respect.
"If it was (a valid settlement), the NCAA breached it" by refusing to talk with tribal representatives, he said.
Carlson said a hearing on a repeal bill "will be right out of the blocks," probably on Monday, the first day of a special session called to deal with a number of pressing issues, including the nickname.
Carlson had said last week that he expected a repeal bill would pass, though he intends to vote against it. Following the Spirit Lake lawsuit filing, he said repeal is not necessarily assured.
"I haven't polled anybody," he said, "so today I couldn't tell you which way it will go.
"But obviously the Native Americans felt slighted by all this. The NCAA turning a deaf ear to them is not a good thing, and the people the NCAA thought they were helping are people who feel they're being discriminated against."
Grant Shaft, president of the State Board of Higher Education, said he had not had a chance to review the filing, but "I don't think the suit will have any impact on actions the board has taken to this date or any action the Legislature may take next week."
He said he doesn't expect the board to alter the course it set in August when it directed UND to begin preparing for a transition away from the nickname and logo, a transition that should be substantially complete by the end of the year.
'A case we can win'
Soderstrom said the court "is not scheduling anything until sometime into 2013," so "this will not be a quick and easy thing."
But "this is a case we believe we can win," he said.
Advised of the lawsuit, NCAA spokesman Erik Christianson responded with a one-sentence email: "Our policy only applies to NCAA championships, which is within our jurisdiction to regulate."
No NCAA officials were available to respond further. In the past, the NCAA has said only that it stands by the 2007 agreement and expects UND -- as of Aug. 15 on NCAA post-season sanctions -- to drop the name and logo.
The Spirit Lake lawsuit is the second filed by American Indians in federal court concerning the UND nickname. In August, just as state leaders traveled to Indianapolis to plead with the NCAA for relief from the nickname policy, several Indian students at UND sued state officials and the university, seeking to eliminate the Fighting Sioux name and logo.
Though it is unlikely the Spirit Lake lawsuit would be scheduled for trial for a year or more, today's filing also asked the federal court for an immediate injunction "prohibiting the NCAA from taking any actions or implementing any policies against UND or its use of the 'Sioux' or 'Fighting Sioux' names."
Soderstrom said the injunction request "is not high on my to-do list" because of the law adopted by the 2011 North Dakota Legislature.
"We're asking them not to" repeal the law, Soderstrom said. "We're asking the whole state of North Dakota to get behind us" and resist a repeal effort.
"If the Legislature does something that I can't live with, then we'll move as fast as we can with the injunction."
Soderstrom appeared at a news conference flanked by Spirit Lake Tribal Chairman Roger Yankton, several members of the Tribal Council, officers of the Committee for Understanding and Respect, and a delegation of Standing Rock members who favor retaining the nickname.
A few opponents gathered in the back of the room during the news conference at tribal headquarters to object to the actions being taken on behalf of the tribe.
"It's not our fight," Arlene delaPaz shouted, while Arliss Krulish declared, "I'm not giving my agreement."
Later, Krulish said she believes the tribe's efforts to save the nickname "are a little too late," and she believes the money spent "could be better spent at home -- on housing, medical care, roads and education."
She and delaPaz said they are enrolled members of the Spirit Lake Tribe and UND nursing graduates, and the debate over the nickname during their student years detracted from their educational experience.
"We were both put in the position where we had to take a position on the logo," Krulish said. "It was everywhere in Grand Forks, not just on campus, and even in Devils Lake, too. We are always put in the middle and forced to defend ourselves."
For the most part, Soderstrom and the others refused to respond to questions or comments from nickname opponents at the news conference, but the attorney did dispute the idea that the committee's involvement is a late-breaking affair.
Members of the committee went to UND in 2008 and asked how they might help save the nickname, he said, and they participated in a tribal flag-raising at Ralph Engelstad Arena. The tribe voted in favor of the nickname continuing in the 2009 referendum, and members testified for the nickname bill at the Legislature early this year.
"We have been working tirelessly, and this is the logical next step," Soderstrom said.
Asked whether committee members are concerned that a continuing dispute over the nickname might hurt UND's athletic program, Soderstrom said such concerns were expressed through "a lot of innuendo" that lacked documented substantiation.
Fool Bear was asked whether his recent loss in a race for Standing Rock Tribal Council reflected sentiment there on the nickname. He said it was not an issue in the race, which was affected more by tribal members living in South Dakota wanting to vote for South Dakota candidates. The reservation straddles the state line.
Fool Bear also once again discounted stories of discrimination and abusive behavior toward Indian students at UND, incidents that have been cited by nickname opponents.
He said he and other Standing Rock members traveled to UND and set up meetings with students. Some who identified themselves as nickname opponents were members of tribes other than Sioux, he said, and Sioux students he spoke with denied they had faced problems because of the name.
"We dug hard and deep trying to find something negative," Fool Bear said. "But those students say they're there for an education, not to fight over this name."
If they did experience some racism, he added, "they understand that the name isn't causing that."
In outlining the lawsuit, Soderstrom noted the 2009 Spirit Lake referendum which "overwhelmingly" favored UND retaining the Sioux name, as well as the 1969 "sacred and religious spiritual ceremony" at UND whereby "the tribal leaders of the Standing Rock tribe granted perpetual use of the name 'Fighting Sioux' to the University of North Dakota."
The NCAA's threats of sanctions, including encouraging other schools to boycott UND if the name and logo don't go, "are a violation of the religious and First Amendment rights of the Dakota Sioux tribes," Soderstrom said, and "show the NCAA believes it knows the interests of the North Dakota Sioux community better than Sioux people themselves."
If "Fighting Sioux" is a derogatory term in the NCAA's eyes, he asked how the association can support the University of Illinois' use of "Fighting Illini" or Florida State University's use of the name "Seminoles" and a mascot "dressed in Native American attire who rides into the FSU stadium on a horse and throws a flaming spear before every home football game."
The lawsuit -- which seeks damages of more than $10 million -- asks that the NCAA policy against the use of Native American names and imagery "be stricken as unconstitutional and 'hostile and abusive'... a violation of copyright and trademark laws" and a violation of Indian civil rights and religious freedom.
It also asks that the NCAA be required to adopt policies to promote Native American athletes, including women.
'Left no choice'
Suing the NCAA isn't a step the nickname supporters have taken lightly, Soderstrom said.
"Indeed, it could possibly have been avoided had the NCAA only listened to the Dakota Sioux people and recognized that the use of the Fighting Sioux name and likeness by UND for the past 80 years has been honorable and in keeping with Dakota Sioux culture and tradition.
"It is the NCAA who has dragged this matter out," he said. "They have had several opportunities since 2005 to realize their policy was in error and either rescind it or grant UND an exception. The NCAA chose not to and left the Dakota Sioux people no choice but to bring this legal action against them."
John Chaske, a Spirit Lake elder and chairman of the pro-nickname committee, said that it's because "we take great pride in our Sioux heritage ... that we are making a stand against the NCAA."
He said UND "has represented the Sioux name in an honorable and respectful way for 80 years now," and the NCAA's characterization of the nickname as "hostile and abusive" is "a mockery" that disrespects the Sioux people.
The NCAA has allowed "ignorance and arrogance to overshadow common sense," Chaske said.
Fool Bear, who led an effort that collected more than 1,000 signatures on petitions at Standing Rock seeking a referendum on the nickname, said the Tribal Council's failure to arrange a vote there "was denying the people their right to be heard."
Consequently, "we have joined with the Spirit Lake committee to take action now," he said.
Gordon Caldis, a Grand Forks attorney who has been involved in the fight to preserve the nickname for years, outlined research he said he's done on similar cases around the country. In Wisconsin, Massachusetts and Illinois, he said, courts hearing cases alleging that Indian nicknames were "hostile and abusive" ruled otherwise.
"This was brought to the attention of the NCAA," he said, "but it was never acknowledged, never recognized."
Caldis also said an investigation conducted by the U.S. Department of Education's Office for Civil Rights years ago "made no sanctions" against UND "and found no 'hostile' environment there."
Shaft said Caldis' arguments have been reviewed by the board and many of the legal issues he raises were dealt with in state court.
"I think there will be a quick resolution of those issues" if the Spirit Lake lawsuit proceeds, he said.
Soderstrom was reminded during the news conference that the NCAA has survived many previous lawsuits by parties who challenged the association's policies or actions.
"The NCAA has never been sued by a Sioux nation before, a sovereign nation," he said.
He said he and other attorneys working for the Spirit Lake committee are volunteers, and money being raised by the committee through donations "is being used to educate people" about the ongoing nickname fight. That would include pro-nickname electronic billboards, such as one at a busy Grand Forks intersection.