Big stakes in Sioux nickname suitJudge: Written decision to come before Christmas
As a group of Sioux veterans, feather headdresses flowing over their shoulders, emerged onto the ice at UND’s Ralph Engelstad Arena, the applause from the hockey fans was thunderous. The video of that October 2008 event was played Wednesday at Ramsey County District Court as evidence in an odd lawsuit that has captured the attention of some national news organizations.
By: Tu-Uyen Tran, Grand Forks Herald
DEVILS LAKE — As a group of Sioux veterans, feather headdresses flowing over their shoulders, emerged onto the ice at UND’s Ralph Engelstad Arena, the applause from the hockey fans was thunderous.
More rounds of applause, as thunderous as the first, followed as the tribal members performed a drum ceremony and the arena unveiled the flags of the state’s two Sioux tribes in the rafters accompanied by a green and white banner that said “You’re in Sioux Country.”
The video of that October 2008 event was played Wednesday at Ramsey County District Court as evidence in an odd lawsuit that has captured the attention of some national news organizations.
Attorney Pat Morley, representing a group of Spirit Lake tribal members who support UND’s Fighting Sioux nickname, told the court that if the nickname went away so too would the opportunity to educate 11,000 people, most of them white and probably not very knowledgeable about Sioux history and heritage.
That, he said, is what’s at stake for the state’s Sioux people, whose culture had once been suppressed by the government and is, even now, weakened.
State Solicitor General Doug Bahr, representing the defendant in the case, the State Board of Higher Education, asked the court to ignore Morley’s emotional argument. He doesn’t doubt the sincerity of the plaintiffs, he said, but what’s really at stake is the board’s constitutional authority to run state universities for the best interests of the state.
The board had once been a major force in the lawsuit against the NCAA, which considered American Indian nicknames offensive and had threatened sanctions against UND for using the Fighting Sioux nickname. The lawsuit resulted in a settlement that gives UND until Nov. 30, 2010, to win the approval of both the state’s Sioux tribes for use of the nickname.
But, with UND eager to join the Summit League athletic conference and the league refusing to even consider an application until the nickname issue is settled, the state board is close to retiring the nickname. It appeared likely to have done so at its Nov. 19 meeting — a year ahead of the original deadline — had nickname supporters not sued.
The supporters want the 2010 deadline to stand. They asked Judge Michael G. Sturdevant to block the state from changing the nickname while the case is ongoing. He agreed and, despite the state’s efforts to undo that block Thursday, it remains in place.
Sturdevant said after the hearing that he’ll issue a written decision sometime before Christmas, having indicated all through the hearing that he understands the state’s need for a quick decision.
But even if he ultimately sided with the state, appeals from the plaintiff could drag the case into 2010.
And that’s what nickname supporters want.
The Spirit Lake Tribal Council already has approved the nickname, and supporters want to give compatriots at the Standing Rock Sioux Tribe more time because of the stronger nickname opposition there.
Filing suit has already bought them close to a month’s time so far.
The push to buy more time was reflected at one point during Wednesday’s hearing when Morley suggested to Bahr that if they really wanted to fight over the original intent of settlement negotiators they could start the discovery process.
This would involve much questioning of negotiators, many requests for documents and a lot of time.
The fact that Indians are suing to keep a nickname, the reverse of what many expect, was odd enough to prompt stories from The Washington Times and The New York Times.
“The most prominent defenders of the University of North Dakota’s right to call its teams the Fighting Sioux are neither alumni nor hockey fans. They’re Sioux,” the Washington Times’ Valerie Richardson wrote.
“In a legal standoff that has turned some preconceptions upside down, North Dakota’s top state lawyers will be in court on Wednesday to oppose members of the Spirit Lake Tribe who have sued to preserve the Fighting Sioux name and logo,” the New York Times’ Monica Davey wrote for Wednesday’s editions.
Davey added another odd twist: North Dakota Attorney General Wayne Stenehjem, a nickname supporter and one of the negotiators of the settlement with the NCAA, is now in the position of opposing other nickname supporters as the state’s top attorney.
Predictably, reader comments were mostly divided between those trumpeting comeuppance for the forces of political correctness and those who say the nickname is still racist. Equally predictable were, on the one hand, arguments that the University of Notre Dame’s use of the Fighting Irish nickname proves ethnic nicknames are not offensive and, on the other hand, assertions that “Sioux” is an Ojibwe word for “snake.”
Of course, there are no organized Irish groups protesting the Notre Dame nickname. And many linguists think “Sioux” is derived from a proto-Algonquian word for those that speak an incomprehensible language, akin to the Greek origin of the word “barbarian” meaning “babbler.”
Council may sue
For both sides in the court case Wednesday, there was not much to elaborate on. The arguments had already been made in advance through various filings. Morley showed a video and called one witness, John Chaske, a Spirit Lake nickname supporter and tribal spiritual leader.
Bahr didn’t cross-examine Chaske because, he said, nothing Chaske said really related to the state’s argument. He called no witnesses. The hearing took about two hours to complete.
Still, through his questioning of the attorneys, Judge Sturdevant added new layers to their arguments.
The plaintiffs have said that, even though the settlement is between the NCAA and the state and no Sioux person is named, they are nevertheless “third-party beneficiaries.” That is, they benefit from UND’s use of the Fighting Sioux nickname because it highlights their history and heritage. Losing the nickname would cause “irreparable harm” to them. Hence, they had standing to file suit to prevent that harm.
The state maintains that, as individual Sioux, they do not. The ability to approve or disapprove of the nickname lies with the tribal councils, the state noted.
Would a council have standing to file suit? Sturdevant asked.
Bahr conceded that because the councils have veto power, they would have some standing.
No tribal council has signed on as co-plaintiffs.
The defense argues that the letter of the settlement does not promise in any way that the state would stick to the 2010 deadline. The settlement simply binds the NCAA from sanctioning UND during that period, Bahr said. It does not bind the state from retiring the nickname when it sees fit.
“They in no way negotiated away to the NCAA or anyone else their authority to make these decisions,” he told the court.
The plaintiffs say that, under state law, the interpretation of the meaning of an agreement is not limited to just the letter of the agreement, but also the spirit in which it came about. Given that the state board had fought the NCAA for the 2010 deadline and stated it would stick to that deadline, the plaintiffs say the agreement should be interpreted to require the board keep its earlier promise.
Sturdevant asked if the plaintiffs thought the settlement similarly bound the state board to keep the nickname for as long as the tribal councils approve. Put another way, can the state retire the nickname even if both councils approve of the nickname?
Morley said he’s only arguing that the state must stick to the 2010 deadline. What it does after that is outside his reach, he said, though public opinion would probably have a lot of weight on the state’s actions.
Reach Tran at (701) 780-1248; (800) 477-6572, ext. 248; or send e-mail to firstname.lastname@example.org.
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