UND resumes Sioux nickname, logo use; N.D. higher ed board considers challenging nickname law's constitutionality

Members of the State Board of Higher Education will convene early next week to discuss whether to ask the North Dakota Supreme Court to rule on the constitutionality of the Fighting Sioux nickname law adopted in April 2011 by the Legislature.

That law, requiring UND to keep the name and Indian-head logo, was repealed during the November special session but apparently restored by the filing of referral petitions Tuesday.

"We'll be discussing whether we want to request the attorney general take legal action to seek a declaratory statement from the Supreme Court as to the constitutionality of the law passed in April 2011," Grant Shaft, president of the board, said today.

"I think the board is going to want to take some action," he said. "We haven't discussed it, but my sense is the board would like to see some definitive statement as to who has the constitutional authority for the nickname and logo."

Also today, UND President Robert Kelley issued a brief statement saying that the university "has resumed the use of the Fighting Sioux nickname and logo for our athletic teams."

Kelley said the action was taken "in keeping with state law" and direction from Shaft.

"I want to reaffirm our respect for the laws of the state and the processes guaranteed under the North Dakota Constitution," Kelley said.

The Herald, which at UND's request had stopped using the Fighting Sioux name and logo except in stories about the controversy, will follow the university's lead and resume their use in sports and other reporting, Editor and Publisher Mike Jacobs said.

Members of the sponsoring committee for the referral delivered 604 petitions containing more than 17,000 signatures to the secretary of state's office Tuesday night, about two hours before the midnight deadline. About 13,500 valid signatures are required to place the measure on the June 12 primary election ballot, and Secretary of State Al Jaeger said he would begin today to randomly choose 2,000 signatures for verification.

Shaft said he wanted "to be clear that the board would not be attacking legally the petition process" or a popular vote.

"That's not what the litigation would be addressing," he said. "It would be addressing the legislative action last April and whether the board had authority over the nickname.

'We need finality'

UND was in the process of retiring the Fighting Sioux nickname and logo when Rep. Al Carlson, R-Fargo and the House majority leader, introduced his bill to require the university to keep the symbols in defiance of threatened NCAA sanctions.

After emotional hearings and a heavy lobbying campaign by UND alumni and other nickname supporters, the bill passed both chambers handily and was signed into law by Gov. Jack Dalrymple.

One argument advanced by advocates was that state leaders could take the legislation to the NCAA as proof of the widespread support the nickname enjoys in the state. But when Dalrymple, Carlson, Shaft and others met with NCAA leaders in Indianapolis, the athletics association stood firm. UND had to retire the name or face sanctions, though the NCAA did agree to advise other member schools that UND was attempting to comply with the policy against use of American Indian names and imagery and should not be punished.

That August showdown in Indianapolis led to the November repeal and the university restarting its retirement of the name and logo, which was largely accomplished at the end of December.

"This is the first opportunity where this constitutional issue has been ripe for the board," Shaft said today. "The law was passed in April but didn't take effect until August. Then we met with the NCAA, which eased up on us until the Legislature met in November. Then we had the repeal. We haven't been in a situation where the NCAA sanctions are going to apply potentially long-term until today.

"I do think we need to seek some finality from the Supreme Court on the constitutional issue. And now would seem to be the time to do it."

Shaft said the Legislature and the governor, "by their actions in November, indicated they agree with the position of the board" that the retirement should proceed.

He said he believes that is the April law is deemed unconstitutional, "it would make the necessity of a vote in June a moot point."

Shaft: Concern is for the university

Asked whether such action might help to fuel the nickname supporters' efforts to put an initiated measure on the November general election ballot -- securing the Fighting Sioux name in the state Constitution -- Shaft said the board "can't take our actions based on how they might impact" such a vote.

"Our concern is what's going on with the athletic program at the university," he said. "We have to act as quickly as possible to avoid detriment to the program."

Shaft said he has not heard from the NCAA or the Big Sky Conference, but "they've been monitoring the situation."

Board and UND officials have expressed concern that a continuing fight over the nickname cost cost the university its newly-won membership in the Big Sky and perhaps its transition to NCAA Division I athletics.

He said he has "told the university they shouldn't take further action toward retiring the name," but not to take other action beyond resuming use of the name "until we know what the board does next week."

He said the board likely will meet by teleconference.

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