‘A state-made legal mess’ : American Indian students warn against delays of lawsuit

Eight American Indian students at the University of North Dakota who have sued the university, the state and top state officials over the Fighting Sioux nickname have urged the federal court to “move as expeditiously as possible to prevent further violations of (their) civil rights.”

The students say they do not oppose a delay in the court’s ruling until after the June 12 primary election, at which voters will decide whether state law should continue to mandate UND’s use of the nickname.

But “if the June primary election does not stop UND’s current policy, only this court is capable of putting a definitive and timely end to the violation of plaintiffs’ civil rights at UND,” they argue in a supplemental response to defendants’ motion to dismiss the lawsuit.

If voters uphold the nickname mandate, the North Dakota Supreme Court may well return to the question of whether the law is an unconstitutional intrusion by the Legislature into the State Board of Higher Education’s authority, the students acknowledge.

But that action could then be made moot if nickname supporters succeed in putting an initiated measure on the November general election ballot and voters approve a constitutional amendment securing the nickname.

Ongoing lawsuit

UND students Amber Annis, Lisa Casarez, William Crawford, Sierra Davis, Robert Rainbow, Margaret Scott, Franklin Sage and Jane Schroeder filed their lawsuit in U.S. District Court on Aug. 11, 2011, seeking to “prevent the further use of the ‘Fighting Sioux’ imagery and logo by (UND), which has had and continues to have a discriminatory and profoundly negative impact” on them and their college experience.

They named as defendants the state, the university, the higher education board, Gov. Jack Dalrymple and Attorney General Wayne Stenehjem — all of whom were in Indianapolis when the lawsuit story broke, trying to persuade NCAA officials to show some flexibility in the showdown with UND over the nickname.

It is one of two pending federal lawsuits involving the nickname. The other was brought, also in U.S. District Court, by Indian supporters of the nickname against the NCAA. They ask that the 2007 settlement agreement between the NCAA and UND be tossed along with the original 2005 NCAA policy discouraging the use of American Indian names, mascots and imagery by member schools.

A hearing on the NCAA’s motion to dismiss that lawsuit was held in Fargo last week, and a decision by Chief Judge Ralph Erickson is expected shortly.

State to respond

Stenehjem said Tuesday that his office will respond to the students’ latest statements within a few days.

His office filed a motion to dismiss the complaint on Sept. 2 last year. Since then, the Legislature — at Dalrymple’s urging — repealed the nickname law adopted last spring, but the law was referred by nickname supporters, setting up the June 12 primary vote.

The filing of the referral petitions also had the effect of temporarily reinstating the law, and to comply with the statute UND suspended its retirement of the nickname. The state board then told Stenehjem to challenge the law’s constitutionality at the Supreme Court and ask the court to strike the referred measure from the ballot, but the court declined to do so on April 3.

“The state of North Dakota and its fellow co-defendants are in a legal mess of their own making,” the Indian students argue in their latest filing opposing the motion to dismiss.

“Instead of adhering to the terms of a court-ordered final judgment to end the use of the ‘Fighting Sioux’ nickname and logo, they defiantly sought to continue the very policy that they had been warned was hostile and abusive to Native American students.

“Now defendants are requesting even more time to end a practice that would have already ended had they acted in good faith and implemented the terms of the NCAA settlement agreement.”

Upcoming votes

The students allege that their federal rights have been violated, “and it is entirely inappropriate to stay enforcement on these rights while the defendants attempt to resolve an internal state legal matter.”

It’s unlikely the court will resolve the case before the end of UND’s current semester, at which time some of the students named in the lawsuit will graduate, according to their latest filing. Consequently, they do not oppose the court delaying a ruling until after the June 12 primary.

“However, if North Dakota’s voters do not vote to end the use of UND’s offensive nickname and logo,” a delay to provide the state Supreme Court with another chance to strike down the nickname law on constitutional grounds wouldn’t resolve the issue because of the potential initiated constitutional amendment, according to the students.

Even if the state court were to find the law unconstitutional, such a decision “will be irrelevant after the proposed constitutional amendment takes effect, which is likely to happen if voters are brash enough to actually require UND to use a nickname and logo that the NCAA has clearly warned is hostile and abusive to Native Americans.”

Chuck Haga is a reporter at the Grand Forks Herald,

which is owned by Forum Communications Co.

Tags: news, und, court, nickname