Fighting Sioux nickname hearing next week

Lawyers representing several state offices, the Legislature and an American Indian tribe will gather at the North Dakota Supreme Court next Thursday, the latest stop in the long, tumultuous journey of UND's Fighting Sioux nickname.

The court has scheduled a hearing at 3 p.m. that day to hear arguments in a case brought by Attorney General Wayne Stenehjem, at the request of the State Board of Higher Education, seeking to have a nickname law adopted last spring declared unconstitutional.

The law, which required UND to keep the name and associated Indian-head logo, was repealed in November but reinstated last month when nickname supporters filed petitions to refer the repeal to a statewide vote in the June primary election.

Stenehjem also asked the court to direct Secretary of State Al Jaeger not to place the referral on the primary election ballot.

Court arguments

The hearing next week in Bismarck was announced Wednesday. Late Tuesday, Sioux Indian defenders of the nickname filed their response to Stenehjem's brief, which argues the Legislature infringed on the board's constitutional authority to operate the institutions under its control.

The issue before the court "involves more than choosing between the Legislature and the State Board of Higher Education and its powers to keep or retire the 'Fighting Sioux' name," the lawyer for the Spirit Lake Sioux Tribe's pro-nickname Committee for Understanding and Respect argues in his brief.

Because elders of the Standing Rock and Spirit Lake Sioux tribes "gave the name 'Fighting Sioux' to UND in 1969 in the context of a Sioux religious ceremony," the two tribes "must be joined as indispensable parties" under state rules of civil procedure, according to the brief by Minot attorney Reed Soderstrom.

He argues that "the 1969 sacred Sioux ceremony giving the Fighting Sioux name to the University of North Dakota constitutes a religious function preventing civil interference," and that it -- along with Spirit Lake's 2009 vote and council action favoring the nickname's use -- meets the NCAA's requirement that UND obtain authorization from the two namesake tribes.

'Sovereign duties'

The State Board of Higher Education has sought to retire the nickname to defend UND's athletics program from sanctions imposed by the NCAA. The athletics association adopted a policy in 2005 aimed at eliminating use of American Indian names, mascots and imagery by member schools.

In a 2007 legal settlement with UND, the NCAA gave the university three years to gain namesake tribes' approval. Standing Rock's Tribal Council voted to continue its longstanding opposition and declined to arrange a referendum.

Grant Shaft, president of the state board and its point man on the nickname issue for years, declined to comment on the Spirit Lake committee's filing.

Soderstrom argues in his brief that Standing Rock tribal leaders "carried out sovereign duties of the tribe by traveling to UND (in 1969) to formally give the name 'Fighting Sioux' to UND.

Those elders included then Tribal Chairman Aljoe Agard, traditional and spiritual leader Edward Loon, tribal Judge Bernard Standing Crow and traditional leader Frank White Buffalo Man, a grandson of Sitting Bull.

That ceremony "is considered sacred by tribal elders and part of Sioux history," according to the brief, which notes that a religious pipe ceremony was conducted and observed by more than 300 people. UND President George Starcher was given the Sioux name Yankton Chief and adopted into the tribe.

"To dismiss the sacred ceremony of 1969 is to dismiss the Sioux people, and to dismiss the tradition and ceremonies of the Sioux people," the brief states.

'Sacred ways'

Opponents of keeping the nickname have argued that little recorded evidence exists that giving the university the right to use the name was part of that ceremony.

But in an affidavit attached to the filing, Christopher Buddy Alberts -- who identifies himself as a senior spiritual leader of the Spirit Lake Nation and also known as Wasicutawa, or American Horse -- explains that the tribes' "sacred ways are not meant to be highly publicized, yet our Sioux Tribal Constitutions recognize and honor our ancestors and traditions.

"The Sioux understand that our Tribal Councils may come and go, but our traditions and religion live on without change."

The 1969 ceremony "has been well known and passed down from our elders," he states, and it cannot be taken away.

"The actions undertaken by the NCAA display the Fighting Sioux name as a mockery, when it is actually a gift that portrays an honor of our race, our traditions and our proud history. The actions by the NCAA are against us, the Sioux people, and now we are the only ones left fighting them on a white man's battleground called a courtroom."

The committee, acting on behalf of the Spirit Lake tribe, also has filed a federal lawsuit against the NCAA.

In its brief, the committee also cites with contempt a statement made during a recent legislative hearing by an attorney representing the state board, that at the end of a game or match, uniforms bearing the Sioux name are "nothing more than a pile of dirty laundry."

Acted in concert

Soderstrom also argues that the request for an injunction is "speculative" and "not ripe for review" by the Supreme Court because the petitions for a referendum have not been finally validated by the secretary of state.

Even if the referendum petitions are approved and the issue goes on the primary election ballot, "there is no guarantee that the voters of North Dakota are going to vote in favor of the referendum... The SBHE has taken a 'what if' scenario and brought it before the court."

The committee further argues that board members and administrators and faculty from UND "were proactive in the legislative process" involving the nickname. There is no need for the court to choose between the constitutional authority of the Legislature and the board because "they have acted in concert."

The Sioux tribes have "a property right" to the name, according to the brief, so the Sioux tribes warrant a seat at the table when use of that name is debated.

"The issue before this court is not about the authority of constitutional governmental entities of North Dakota nor is it about the authority of political subdivisions and entities that need protection from the people's right to vote," the brief argues.

"Instead, the issue before this court is the people's right, as opposed to privilege, to have protection of religion as well as a system through referendum and initiation to protect itself from elected and appointed government officials who, whether by benevolence or malice, make decisions that detrimentally affect the citizens of North Dakota."

The right of referral and initiative must be protected and power of the government "to restrict that right must remain severely limited. The presumption of the people's sovereignty is paramount second only to the sovereignty of the Creator. For these reasons, the matter must go forward on the ballot in June."

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