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UND nickname: Judge tosses Spirit Lake suit against NCAA

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news Bemidji, 56619

Bemidji Minnesota P.O. Box 455 56619

GRAND FORKS, N.D. -- U.S. District Judge Ralph Erickson has granted the NCAA's motion to dismiss a lawsuit brought by the Spirit Lake Sioux Tribe, a major setback to American Indians trying to preserve UND's Fighting Sioux nickname.

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Erickson filed his order late Tuesday in Fargo, where lawyers for the two sides had presented oral arguments on April 19.

The Spirit Lake Sioux, through its Committee for Understanding and Respect, had asked the court to overturn the NCAA's 2005 policy discouraging the use of American Indian names and imagery by member schools.

They also argued that they and the Standing Rock Sioux were "indispensable parties" to the 2007 agreement settling a lawsuit brought by UND against the athletics association, and that they have been wrongly excluded from negotiations concerning that settlement

In his 23-page opinion, Erickson held that none of the several counts brought by the committee state a sufficient legal claim under federal law.

"Many of the counts are entirely without merit, and the ones that could potentially have been meritorious could only have properly been brought by UND," Erickson wrote.

"As a voluntary, private organization, the NCAA was free to implement the policies it saw fit for governing its events, no matter how provident or improvident those policies may have been."

Neither the Spirit Lake Sioux nor Archie Fool Bear, a pro-nickname member of the Standing Rock tribe and a party to the lawsuit, is a member of the NCAA, the judge wrote, "and their lack of standing is a fatal flaw in nearly every count dismissed in this order."

In his oral argument before the court on behalf of Spirit Lake and Fool Bear, attorney Reed Soderstrom had said the case "is about righting a fundamental wrong," the sidelining of the Sioux people in a matter that is of essential interest to them.

Soderstrom was not immediately available for comment on Erickson's decision.

'Indispensable'?

In oral argument, Soderstrom had maintained that a "sacred pipe ceremony" at UND in 1969, conducted by elders of both Sioux tribes, granted UND the right the use the Sioux name, but that was not taken into account when the NCAA and UND negotiated a settlement agreement that required the university to gain new approvals from the tribes.

Jonathan Duncan, who represented the NCAA at the April 19 hearing, said the tribes "were not and are not indispensable parties" to the 2007 agreement and thus "have no standing" to sue the NCAA.

Erickson agreed with Duncan.

In his order, however, he said it was "important to note what the pending motion (for dismissal) is not about."

"It is not about the wisdom of the NCAA's policies. It is not about whether or not the 'Fighting Sioux' nickname and logo will remain employed by (UND). It is not about the collateral consequences that UND might suffer if it continues to use the nickname and logo. And it is most decidedly not about whether the Spirit Lake Tribe has been tethered to the Standing Rock Tribe by a settlement agreement that neither tribe was a party to."

Rather, Erickson wrote, the motion narrowly asks the court to determine whether the court has jurisdiction and whether the committee has standing to bring the actions.

'Tortuous' saga

The judge, who studied lengthy briefs submitted by the parties before hearing the oral arguments, appeared to reflect some of the frustration felt by many over the drawn-out nickname battle.

"The never-ending saga of the University of North Dakota's 'Fighting Sioux' nickname controversy is tortuous and incapable of full explanation here," Erickson wrote as he began to lay out the facts of the case.

"Spanning a spectrum of protests for and against the name, tribal resolutions, state laws, and fierce public debate, the NCAA's championship policy has created significant turmoil within the state of North Dakota over the propriety of the continued use of the 'Fighting Sioux' nickname."

He recounted the nature of the NCAA as "a private association," and the development of its policy on use of American Indian names and imagery, and how that policy was applied to, and resisted by, UND. He reviewed state court actions involving the nickname, including the 2010 North Dakota Supreme Court's upholding of the State Board of Higher Education's authority to retire the nickname.

The pipe of 1969

Erickson also addressed the 1969 pipe ceremony, the nature and meaning of which has been disputed but which many nickname supporters celebrate as a defining moment in the relationship between UND and the Sioux tribes.

"While the court respects the sanctity and solemnity that tribal traditions richly deserve, the 1969 pipe ceremony has no legal significance on the facts as pled by the committee," Erickson wrote.

"While it is rudimentary contract law that legal obligations can be created between parties in ways other than putting pen to paper, the 1969 pipe ceremony fails to meet the basic requirements of a contract."

Also, under terms of the NCAA policy, "UND and other similarly-situated schools are under no obligation to retire their American Indian nicknames and imagery," Erickson wrote. "While the policy mandates modest sanctions for the use of these marks, there is no directive that the member schools must retire them." Consequently, the committee can't show that the NCAA has interfered with the tribes' contractual rights.

Erickson also dismissed claims made against the NCAA under federal civil rights laws, the federal Indian Civil Rights Act, copyright law and antitrust regulations.

CHUCK HAGA is a writer for the Grand Forks Herald. The Bemidji Pioneer and the Herald are Forum Communications Co. newspapers.

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