Spirit Lake to appeal U.S. court's dismissal of its suit against NCAA

'1969 was binding'

Spirit Lake to appeal U.S. court's dismissal of its suit against NCAA

By Chuck Haga

Herald Staff Writer

Fighting Sioux nickname supporters at the Spirit Lake Sioux Tribe have signaled they intend to appeal U.S. District Judge Ralph Erickson's dismissal of their lawsuit against the National Collegiate Athletic Association.

A notice of intent to appeal was filed with the 8th U.S. Circuit Court of Appeals this week by Reed Soderstrom, a Minot attorney who represents the pro-nickname Committee for Understanding and Respect, which sued the NCAA over its efforts to have UND drop the nickname and related Indian-head logo.

The committee, authorized by Tribal Council action to speak for the tribe on matters relating to the nickname and logo, had sought at least $10 million in damages from the NCAA. It also sought reversal of the 2005 NCAA policy discouraging use of American Indian names and imagery by member schools.

Erickson granted the NCAA's motion to dismiss the case on May 1, saying that "many of the counts are entirely without merit, and the ones that could potentially have been meritorious could only have properly been brought by UND."

The nickname issue goes before North Dakota voters on June 12. Measure 4 on the primary election ballot will ask whether UND may be allowed to discontinue use of the nickname or should be required to keep it.

Soderstrom led the ballot measure committee that referred action by the Legislature which would have allowed UND to retire the nickname.

Soderstrom was in Boston on Friday on a family trip. He said the appeal, which he decided to file "at the last minute" allowed by the court, "isn't about (gaining) publicity or to raise awareness about our campaign" on Measure 4.

He again emphasized the significance of a 1969 naming ceremony at UND. He and other nickname supporters believe tribal elders attending that "sacred ceremony" from Spirit Lake and Standing Rock gave UND the irrevocable right to use the Fighting Sioux name.

"I continue to believe the agreement (between) the Sioux and UND was binding in 1969, and the tribe has legal standing to assert its rights to have a voice on the retention or retirement of the name," he said.

Asked for comment, NCAA spokesman Erik Christianson said, "Our position hasn't changed. The court made the correct rulings as a matter of law in the NCAA's favor."

Soderstrom said filing the appeal "was a tough decision. How much more can we fight? We've run a campaign (on Measure 4) with no money and a legal fight that's been uphill all the way. But it was my call, and I wouldn't have filed it if I didn't think I had a shot.

"I read the judge's decision and I respect it, but I don't think anybody grasps the significance of the 1969 ceremony. I also think there's a general tendency to give short shrift to the committee, when actually it's a sovereign Sioux tribe that's going forward with this."

Soderstrom said it "might be refreshing to have someone not connected to the issue in any way to take a look at it."

'My mistake' -- suit overloaded

The suit was filed on Nov. 1, 2011, in U.S. District Court in Fargo by the Spirit Lake tribe and Archie Fool Bear, acting individually and as representative of more than 1,000 members of the Standing Rock Sioux Tribe who had sought a tribal referendum on the nickname.

Soderstrom and an attorney representing the NCAA each presented oral arguments in Fargo on April 19.

Soderstrom argued that the two tribes were "indispensible parties" who were left out of the 2007 negotiations that led to a settlement agreement between UND and the NCAA.

The settlement required UND to drop the nickname within three years if it could not obtain approval from the two namesake tribes.

Spirit Lake gave its OK, but Standing Rock's council reaffirmed its longstanding opposition to use of the name and declined to arrange a referendum, and the NCAA imposed sanctions on UND.

The Spirit Lake lawsuit included a laundry list of complaints concerning allegations that the NCAA had violated Indians' religious freedom, their civil rights and copyright law. It alleged that the association's description of Fighting Sioux as "hostile and abusive" amounted to defamation.

"My mistake may have been ... in the original complaint, we threw a lot of things in there," Soderstrom said Friday. "I don't know if it would have made a difference if we had left that out."

He said his appeal will focus on the 1969 ceremony, North Dakota and federal law requiring respect for agreements entered into by sovereign tribes, and the tribes' claim that they are "indispensible parties" to the dispute.

The appeal process "will be much quicker" than the original proceeding in U.S. District Court, Soderstrom said.

"I'll have to file my brief within 40 days, and the NCAA will file quickly," he said.

It will be up to the appeals court whether there will be oral arguments, but Soderstrom said he expects a final decision by the court "by the end of the year."

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