North Dakota lawmakers' proposals to force UND to keep the Fighting Sioux nickname are fatally flawed.
The Legislature should make short work of the proposals and get on with its much more urgent work, such as trying to avert a catastrophic overflow of Devils Lake that could drown Valley City and other communities in a 500-year flood.
The proposals are fatally flawed for several reasons, including:
** The North Dakota Constitution is clear: "A board of higher education, to be officially known as the state board of higher education, is hereby created for the control and administration of the following state educational institutions," and the list includes UND.
Furthermore, the board "shall have full authority over the institutions under its control."
ADVERTISEMENT
In other words: Lawmakers, stay out. The document's plain language means it would be unconstitutional for the Legislature to usurp the board's authority over the UND nickname, suggests Wayne Stenehjem, North Dakota attorney general.
Responds House Majority Leader Rep. Al Carlson, R-Fargo: Who cares?
"We're happy to challenge that because all our (the Legislature's) bills are constitutional until proven otherwise," Carlson told the Bismarck Tribune.
Hmm, that's not quite the sacred-text approach Carlson's fellow Republicans affirmed in their run-up to reading the U.S. Constitution on the floor of the U.S. House. Or is Carlson now saying that constitutions are "living" documents whose words take on new meanings over time?
** Even if the bills were constitutional -- in fact, even if a constitutional amendment gave the Legislature control over the nickname -- fighting to save the nickname in 2011 still would be a lost cause.
That's because control over the nickname has passed out of the state's hands. Where the Fighting Sioux nickname is concerned, everything changed Aug. 5, 2005. That's the day the NCAA announced sanctions against teams that use American Indian nicknames and symbols.
As of that moment, North Dakota no longer could decide the issue on its own, unless it was willing to subject UND to those sanctions or pull the school out of the NCAA.
The state's legal settlement with the NCAA introduced new players: North Dakota's Sioux tribes. To keep the nickname, UND needed the tribes' approval.
ADVERTISEMENT
Spirit Lake gave it. Standing Rock didn't.
And that's that.
The Standing Rock Tribe is a sovereign government. North Dakota simply does not have the power to force it to approve or hold a referendum on the UND nickname.
The bottom line is clear: The NCAA and the tribes are in the driver's seat. UND, the board and the Legislature are not.
And as long as that's true, any forcing of the issue by the Legislature will be an empty gesture, but one that imposes real costs on UND.
** About those costs: While lawmakers from around the state may enjoy thumbing their nose at political correctness, they won't pay the price.
UND will. Not only would the university be barred from hosting NCAA postseason tournaments; not only would its teams have to suffer the humiliation of wearing non-logo uniforms during postseason play -- but also, sanctions from other universities would kick in.
The University of Minnesota, for example, has said it might not compete against UND in sports other than hockey. Other universities likely would follow that lead.
ADVERTISEMENT
How would this do anything other than hurt UND in service of a lost cause?
Maybe that's why Grand Forks legislators are notably cool to the proposed bills.
** So, sue the NCAA for violating antitrust laws, one bill proposes. Sorry, but North Dakota already has been there and done that, at least as far as state laws are concerned.
North Dakota claimed an antitrust breach in its original lawsuit against the NCAA. But as part of the legal settlement, the state court dismissed that claim with prejudice.
That, if we understand this correctly, bars North Dakota from filing the same claim again.
Enough. The battle is over, and the nickname lost. If there exists a realistic strategy to save the name, then let supporters put that strategy forward. Otherwise, let's not waste time on costly but meaningless gestures when so much faces the state.
-- Tom Dennis for the Herald
