FIGHTING SIOUX NICKNAME: For now, out in the cold

People seeking to preserve UND's Fighting Sioux nickname do not have to be allowed into Ralph Engelstad Arena this weekend to circulate their petitions, a judge ruled today.

In denying the request from the Spirit Lake Sioux Tribe and others circulating petitions to force statewide votes on the issue, Grand Forks County District Judge Sonja Clapp said she will schedule another hearing in early January to determine whether the petitioners could move inside the arena for future events -- including upcoming hockey series with Minnesota and Wisconsin.

At issue are several constitutional issues, including freedom of speech and assembly, and whether the privately-owned arena should be considered public space when it is leased and used by a public institution.

Grand Forks attorney Patrick Morley, representing the arena, objected that his client had not been formally served with notice, and that "today's hearing is not appropriate" given the seriousness of the issues involved.

Minot attorney Reed Soderstrom, representing the Spirit Lake Tribe, its Committee for Understanding and Respect and Archie Fool Bear, a pro-nickname member of the Standing Rock Sioux Tribe, had filed the request for an injunction on Tuesday and asked that a hearing be held prior to Friday.

He said a favorable decision would allow his clients to circulate their petitions inside the arena during this weekend's UND men's hockey series with Harvard, arguing that time is growing short for the petition drive. The nickname supporters need to collect and file about 13,500 signatures by Feb. 7 to force a referendum on the Legislature's action last month repealing a state law requiring UND to keep the Fighting Sioux name.

Nickname supporters also are pushing for an initiated measure on the November general election ballot that would place the nickname in the state Constitution. That effort requires about 27,000 signatures to be filed by Aug. 8.

Phone trouble

Today's hearing began at 11 a.m., with Morley on the phone from Fargo and Soderstrom from Arizona, but it was suspended after about 40 minutes when the lawyers reported they couldn't hear the judge.

They had largely finished making their arguments and chatted amiably between themselves as Clapp repeatedly tried to re-establish a connection. She ordered the hearing to be continued this afternoon, when Morley could be in Grand Forks and attend in person.

Clapp told the attorneys that she is a season ticket holder for UND hockey games and asked, "Does either side object to my sitting on this case?"

Neither did. Soderstrom added that following UND hockey "is part of everybody's life here in the Red River Valley."

In March 2010, Morley represented some of Soderstrom's clients before the North Dakota Supreme Court. At that time, eight members of the Spirit Lake Sioux Tribe were seeking to bar the State Board of Higher Education from moving up a deadline for Spirit Lake and Standing Rock Sioux to decide whether to endorse UND's use of the Sioux name, a requirement of the 2007 legal settlement with the NCAA.

Morley said he researched state bar rules governing client-lawyer relationships and concluded that the two matters were not "the same or ... substantially related" and it was not inappropriate for him to represent the arena in this case.

He said he queried Soderstrom about it prior to the hearing and that Soderstrom had made no objection.

Public or private?

In his opening presentation to the judge, Soderstrom emphasized the Feb. 7 filing deadline for the referral petitions. "Time is of the essence," he said, and "the Ralph Engelstad Arena is the best facility in winter to collect signatures" because of the masses of people who attend UND hockey games there.

The arena "claims to be a private entity," he said, and it is, "but only to a certain extent." UND, a public institution, plays hockey there, and UND leases the facility for those games. "It is located on taxpayers' land, state land, (which) may be leased to the Ralph Engelstad Arena but is leased by the state."

He said the people who want to circulate petitions don't want to "protest or pound drums" or otherwise cause a disturbance.

"We just want to be noticed," he said. "We want to get inside."

So-called "free expression zones" designated by the arena, to which he and other petition circulators were directed during a hockey game on Dec. 17, "are nowhere close to the people," Soderstrom said.

"We were on the other side of a parking lot, in the cold where pens don't work," he said. "People in wheelchairs couldn't get to me," and others had difficulty reading the petitions in the area by the UND Bookstore where they were assigned.

"They knew what they were signing, and they wanted to sign," he said. "But they had to leave my table to get under a street lamp to read."

'Content neutral'

Morley said that free speech guarantees are aimed "against abridgment by government, federal and state, not private entities," and despite its connections with UND the Engelstad Arena is privately owned.

The arena "provides an area where people can exercise their right of free speech," he said, and it has developed a "content neutral policy" of regulating such activities as leafleting, picketing, marching and petitioning, whether for political, religious or other causes, on arena property.

"It is applied without respect to whether the Ralph Engelstad Arena likes or doesn't like" the cause or activity in question, he said, noting that activists with PETA (People for the Ethical Treatment of Animals) were denied access to protest a recent circus performance.

Moreover, he said that more than 30 events are scheduled in January at the arena and other UND venues, including hockey series Jan. 13-14 with Minnesota and Jan. 27-28 with Wisconsin and a UND-North Dakota State University basketball game on Jan. 17.

"Missing out on (petitioning during) the Harvard series and giving the REA a chance to respond" to the constitutional and other issues should not seriously harm the petition circulators' efforts, Morley said.

Also, Engelstad Arena managers have raised traffic and safety issues if nickname supporters were allowed to collect signatures from a table inside the arena, and that it "will set a precedent" and "every organization that has a bone to pick will seek to come into the building."

Clapp said she wants to see legal briefs from the attorneys before ruling further on the nickname supporters' access request. She asked Morley to file his brief by Jan. 6 and Soderstrom his rebuttal by Jan. 9.

She said she will schedule another hearing on Jan. 10 or 11.

"That will give 24 to 36 hours for me to render a decision before the next hockey series," she said.

Again, that would be the Gophers, Jan. 13-14.

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