Constitutional obstacle in path of UND Sioux nickname bills

North Dakota Attorney General Wayne Stenehjem, for years one of the strongest advocates for UND retaining its Fighting Sioux nickname and logo, said today that bills introduced in the Legislature Monday to enshrine the symbols in state law face a significant constitutional hurdle.

Stenehjem said he visited with House Majority Leader Al Carlson, R-Fargo, and Rep. David Monson, R-Osnabrock, "just to give them a heads up" on their bills, which would give statutory authority to the nickname and prohibit its retirement by UND and the State Board of Higher Education.

"There is an obstacle for them, and I think they know that," Stenehjem said.

"This is coming from someone -- me -- who has been a strong supporter of the nickname," he said. "We negotiated a settlement with the NCAA, a settlement that was reasonable and set forth a process" that could have allowed UND to retain the name and logo.

"It didn't work out the way I had hoped," Stenehjem said.

But the North Dakota Constitution "includes a provision that says the State Board of Higher Education shall have full authority over the institutions under its control. The authority they have on this question. . . is rather extensive. So that's going to be a real obstacle to overcome in legislation.

"There are lots of people who are unhappy about how this played out. But you still have the legal and constitutional framework to deal with.

"I am committed to the nickname. But I'm even more committed to the Constitution. I just swore an oath to uphold it."

Meanwhile, a third nickname bill has been introduced in the House, by Rep. Duane DeKrey, R-Tappen.

It says, "Notwithstanding any action or decision of the State Board of Higher Education or the University of North Dakota or any legal settlement entered between (the board, UND and the NCAA), the University of North Dakota may not retire or discontinue the use of the Sioux nickname and logo unless the (board) receives written notice from the chairman of the Standing Rock Sioux Tribe indicating the members of the tribe have voted in a tribal referendum to revoke the permission granted to the university to use the Sioux nickname and logo."

DeKrey's proposal, which likely will be sent with the other two to a standing House committee for hearings, apparently refers to a 1960s ceremony in which Standing Rock elders formally granted UND the right to use the Sioux name. More recently, the Standing Rock Tribal Council has repeatedly discouraged continued use of the name and logo, but efforts to arrange a reservation-wide referendum failed.

For many ardent defenders of the Fighting Sioux nickname and logo, feeling betrayed by the State Board of Higher Education's April 8, 2010, directive to UND to begin the transition away from the historic symbols, there remained one hope:

Can the North Dakota Legislature get involved and change the outcome?

Carlson, Monson and DeKrey have signaled they want to try. But the question remains: Can the Legislature do that?

Carlson acknowledged the potential hurdle -- and a possible way to clear it -- when he discussed his draft bill on Monday.

"We have the attorney general saying, well, we have constitutional problems, and UND saying they've done it (retired the nickname) and the Board of Higher Education saying they've done it," he said.

But "if this (bill) ends up losing, maybe a constitutional measure that we do, to make sure that the name is put into our Constitution, is in order."

Stenehjem said Carlson, like all legislators, "has the right to propose constitutional amendments, which would be voted on by all the citizens," and "if the Constitution is amended to override that provision, then it would control."

Stenehjem, who holds undergraduate and law degrees from UND -- and represented the university district in the Legislature for 24 years before becoming attorney general -- represented the State Board in its defense of the nickname against pressure from the NCAA.

The athletic association has sought to eliminate uses of American Indian names, logos and mascots by member schools, claiming the symbols contribute to a "hostile and abusive" environment. It threatened sanctions against schools that failed to change.

In 2006, Stenehjem sued the NCAA on behalf of the State Board, and the following year he negotiated a settlement in which the athletic association gave the board three years to win authorization from the two namesake tribes for UND's continued use of the name and logo.

If nickname-embracing legislation is passed and there is a challenge, "I'll have two clients -- the Legislature and the State Board," Stenehjem said. "I'll have to pick one to represent and appoint someone, probably outside counsel, to represent the other."

He declined to say which side he might represent, but he noted the issue would be the same he presented to the North Dakota Supreme Court last year when members of the Spirit Lake Sioux Tribe sought an injunction against the State Board retiring the nickname before the Nov. 30, 2010, deadline set in the NCAA lawsuit settlement.

"We had a settlement and a judgment resulting from the negotiation, and the board has the authority to control operations of institutions under its authority," he said. "And the court affirmed both of those points."

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