Another nickname lawsuit goes to court

Encouraged by its victory last month at the North Dakota Supreme Court, the Spirit Lake Sioux Tribe goes into federal court this week to face the NCAA directly in the tribe's effort to preserve use of the Fighting Sioux nickname and logo at UND.

In what could be a pivotal moment in the nickname saga, lawyers will be in U.S. District Court in Fargo on Thursday for a hearing on the NCAA's motion to dismiss the lawsuit brought last November by the tribe, which seeks to overturn the association's policy discouraging use of American Indian names and imagery by athletic teams of member schools.

The Spirit Lake Tribe and Archie Fool Bear of the Standing Rock Sioux Tribe announced the lawsuit at a news conference on Nov. 1, just days before the North Dakota Legislature convened a special session to take up the nickname issue and other pressing matters.

The lawsuit maintains that the two tribes are "indispensable parties" who were left out of negotiations leading to the 2007 settlement agreement between North Dakota and the NCAA, so the agreement should be voided.

Spirit Lake also accuses the NCAA of violating the federal Indian Religious Freedom Act and the Indian Civil Rights Act and of defaming the Sioux Nation by initially referring to the Fighting Sioux nickname as "hostile and abusive."

Scornful response

But in documents filed recently in support of its motion to dismiss, the NCAA argues -- at times scornfully -- that the tribe's "tortured argument" makes no legal sense.

The association's lawyers are especially dismissive of the 1969 ceremony at UND at which tribal elders bestowed an Indian name on then-UND President George Starcher. According to nickname supporters, including some who were at the ceremony or learned of it through oral history, UND also was given the right to use the Sioux name, and that action was sealed with a sacred pipe ceremony.

"Plaintiffs contend that the ceremony conferred a sovereign right (on which tribe is unclear) and that UND is essentially treaty-bound to remain the 'Fighting Sioux,' even though there is no allegation of evidence that UND agreed to use the nickname in perpetuity," the NCAA argues in a response filed on March 30.

"Apart from being nearly incomprehensible, the argument fails for any number of reasons. For example, whatever its alleged religious significance, plaintiffs have not shown the ceremony had any legal significance, even as to the tribes themselves (both of which have subsequently passed numerous resolutions regarding nickname approval)."

Also, the 1969 ceremony "could not have constituted a 'treaty,' since the United States ceased entering into treaties in 1871."

Most of the participants in Starcher's naming ceremony were elders from Standing Rock, though photographs taken at the time show at least one Spirit Lake elder participating.

Jumbled history

Fool Bear is listed in the lawsuit against the NCAA as a plaintiff individually and as representative of the more than 1,000 Standing Rock members who signed a petition calling for a tribal referendum on the nickname. The Standing Rock Tribal Council, which has adopted several resolutions opposing use of the nickname, declined to arrange a reservation-wide vote.

Under the 2007 settlement agreement, UND and the State Board of Higher Education needed approval of the two namesake tribes by August 2010 to continue using the name. When that didn't happen, the 2011 Legislature adopted a law requiring UND to retain the name.

The law was repealed during the special session in November, but the filing of petitions to force a referral vote on the repeal had the effect of reinstating the mandate. As the settlement agreement deadline has passed, the NCAA has imposed sanctions.

The State Board of Higher Education asked the state Supreme Court to declare the nickname law an unconstitutional infringement of its authority and to strike the referral from the June ballot. The court on April 3 declined to take up the constitutional issue for now and refused to upend the referral.

Lack of standing?

In its most recent filing, the NCAA argues that neither Spirit Lake's pro-nickname Committee for Understanding and Respect nor Fool Bear has standing to bring the legal action or has demonstrated any injury that could be redressed.

"Although Plaintiff Fool Bear alleges that he is authorized to represent the interests of disenfranchised members" of Standing Rock, "it is well-settled that individual tribe members or groups of members cannot act on behalf of the tribe."

The people challenging the NCAA's nickname policy tried in 2009 to stop the state board from moving up UND's planned retirement of the Fighting Sioux name, the NCAA notes, but the state courts held that the board "has sole authority over determining UND's nickname and logo."

Consequently, the relief that nickname supporters seek now -- including an end to the overall NCAA policy -- "will not end the controversy, cause the alleged social turmoil to abate, nor assure that UND will permanently keep the nickname that plaintiffs desire."

Sioux identity

The NCAA also rejects the complaint that its leaders "made no effort to seek tribal opinion regarding the 'Fighting Sioux' name," because the 2007 agreement clearly obligated the NCAA "to refrain from contact with the tribes."

The NCAA was prepared to "defer to the stated will" of the tribes, according to the association's filing. "However, the NCAA could not and cannot compel Standing Rock to vote or hold a referendum."

The NCAA's initial motion to dismiss was filed just before Christmas 2011.

In its response, filed on March 13, Spirit Lake included affidavits by individual Sioux Indians who argue that loss of the nickname will cost the tribe national recognition. John Chaske, a Spirit Lake elder and leader of the Committee for Understanding and Respect, said retirement of the Fighting Sioux name at UND "will result in our people being forgotten in American history and 'retired' out of it."

Nickname opponents at Spirit Lake have discounted such concerns, arguing that they don't need a sports nickname to provide them with an identity.

Several Indian students at UND who oppose the nickname have asked the federal court to require the nickname's retirement. That lawsuit, brought against Gov. Jack Dalrymple and other state officials, also is making its way through the U.S. District Court system.

Reach Haga at (701) 780-1102; (800) 477-6572, ext. 102; or send email to chaga@gfherald.com .