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Spirit Lake sues NCAA; Carlson says lawsuit could affect ND Legislature action on UND nickname

FORT TOTTEN, N.D. -- A lawsuit filed in federal court Tuesday 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.

Legislative action

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, Tuesday'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."

No unanimity

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.

Vote, ceremony

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.