Nickname defenders assert tribal sovereignty

In a response to the NCAA's motion to dismiss the Spirit Lake Sioux Tribe's federal lawsuit over the Fighting Sioux nickname, the tribe's attorney relies heavily on the contested 1969 "naming ceremony" that allegedly gave UND the right to use the Sioux name.

The formal response, filed in U.S. District Court last week, includes two dozen affidavits, many attesting to the scope and continuing significance of the 1969 ceremony, which has been disputed by some Sioux Indians and other nickname opponents.

"The tribe asserts that its sovereign rights and powers as a Sioux Tribal Nation of North Dakota are paramount, as a matter of statutory and common law, over the powers of the National Collegiate Athletic Association," attorney Reed Soderstrom writes.

Those rights and powers trump the NCAA "and its ultimatum policy" requiring UND "to either suffer sanctions or take away a name given by traditional sacred Sioux ceremony," he writes.

The lawsuit, filed on Nov. 2 in Fargo, alleges that the NCAA's actions concerning UND's nickname "violate Native American civil rights, equal protection rights and religious rights." It asks for at least $10 million and an end to the NCAA's policy, adopted in 2005, discouraging the use of American Indian names and imagery by member schools.

It also asks the court to void the 2007 settlement agreement between the NCAA and the State Board of Higher Education, which requires UND to drop the nickname within three years if it failed to gain approval from the Spirit Lake and Standing Rock tribes.

Sovereign right

The suit was brought by the Spirit Lake tribe, through its Committee for Understanding and Respect, and by Archie Fool Bear, individually and as representative of nickname supporters at Standing Rock.

In its motion for dismissal, filed on Dec. 12, the NCAA said the Indians' claims of harm caused by the policy are not supported by facts and that Spirit Lake and Fool Bear lack standing to sue.

Soderstrom, a Minot attorney, represents the Spirit Lake committee and led the recent effort to refer the Legislature's repeal of a law requiring UND to keep the name. He argues in his response that elders of both tribes exercised "sovereign authority" in the 1969 ceremony.

He notes that while most accounts of that ceremony mention the presence only of Standing Rock elders, "at least one photo documents elder Henry Johnson from Spirit Lake presenting an Indian headdress" to UND President George Starcher. The ceremony, he adds, was sealed through use of a sacred pipe.

The Sioux tribes "were never given a seat at the table when the NCAA and the State of North Dakota entered into a settlement agreement (in 2007) on terms for UND to keep the name," he argues. Because of that exclusion, "the significance of the 1969 sacred ceremony was never considered."

Soderstrom notes that several statements by NCAA leaders support the Indians' claim that they "not only have standing but that they are indeed indispensable parties," which should void the settlement agreement. He cites a statement by NCAA Vice President Bernard Franklin in 2007 that the agreement "confirms that the Sioux people and no one else should decide whether or how their name should be used."

Franklin was referring to the requirement that UND obtain namesake approval from the two tribes. Spirit Lake, by referendum and Tribal Council action, gave its blessing in 2009, but the Standing Rock Tribal Council -- despite a petition drive led by Fool Bear resulting in more than 1,000 signatures -- refused to end its longstanding opposition.

Unrecorded history

The affidavits with Soderstrom's filing included one by John Chaske, a leader of the Spirit Lake committee, who argues that loss of the Fighting Sioux nickname will cost the Sioux people "national recognition and exposure... and will result in our people being forgotten in American society and 'retired' out of it."

In his affidavit, Frank Black Cloud of Spirit Lake writes that the nickname helps to educate non-Indians that "the Sioux people have a beautiful history, culture and legacy," and retirement of the name "will do more harm than good."

Diane Gates identifies herself as an enrolled member at Standing Rock and daughter of Ed Loon, one of the participants in the 1969 ceremony. "The name was given in an honoring way," she writes, and was meant to share with UND athletes the traditional Sioux values of courage, discipline and teamwork.

People who challenge the significance of the ceremony by citing the lack of archival evidence don't understand that such ceremonies traditionally were not recorded, Linus End of Horn writes in his affidavit. A resident of the South Dakota portion of the Standing Rock reservation, End of Horn states that he was at UND and that "the man conducting the ceremony asked that no pictures or recordings be made."

Fool Bear also submitted an affidavit, recounting how he came to appreciate UND's use of the Sioux name, including visits to the university and attempts to find police or other records documenting alleged abuse or hostile acts against Indian students.

"As a Sioux Indian, I identify with the nickname and logo," he writes. "The NCAA policy wearies me, as it is just one more policy in a history of many where powerful outsiders come in an attempt to 'help' and end up taking our land, our children, our way of life, our religion (and) our rights in an effort to 'improve' us. I'm weary, I'm hurt, I'm mad and I will continue to fight this NCAA injustice."

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