‘Fighting Sioux’ supporters make appeal case

ST. PAUL — The Sioux people of the Spirit Lake Tribe are “indispensable parties” who should not have been denied a seat at the table as the University of North Dakota, the state of North Dakota and the NCAA haggled over the University of North Dakota’s Fighting Sioux nickname, a spokesman for the tribe told judges of the 8th U.S. Circuit Court of Appeals here Thursday.

The Sioux also should be acknowledged as “a protected group” entitled to protection against discrimination, Eric Lauerman said, arguing that the NCAA discriminated against them by coercing UND and the State Board of Higher Education to drop the nickname and associated Indian-head logo.

The tribe’s Committee for Understanding and Respect, with Archie Fool Bear as representative of pro-nickname members of the Standing Rock, have appealed a U.S. District Court order dismissing their lawsuit against the private athletics association.

Lauerman, a Pennsylvania State University law student who interned last summer with Minot attorney Reed Soderstrom, was allowed to argue the case under the court’s student practice rule.

Soderstrom, who argued the case in District Court in Fargo, was present but did not participate in the proceedings.

Lauerman and Jonathan Duncan, representing the NCAA, each had 15 minutes to bolster orally the extensive briefs they had filed earlier.

Duncan said Spirit Lake had thrown a dozen allegations at the NCAA, including violations of copyright and anti-trust law, but the only issue before the appeals court was “whether these plaintiffs have standing” to sue the NCAA.

He said they had not presented facts showing injury caused by the NCAA’s policy discouraging the use of American Indian names and imagery or by the policy’s application to UND.

The decision on the nickname “belongs to the State Board of Higher Education and nobody else,” Duncan said, and the state board “is not a party to this case.”

Presiding Judge Lavenski Smith said the three-member court “will continue to study the briefs and make a decision in due course.”

1969 ceremony

During his 15-minute appearance, Lauerman was asked by Judge Michael Malloy, “What’s your best evidence of intentional discrimination” against the Sioux on the part of the NCAA?

The 2005 policy discouraging the use of American Indian names and imagery was broadly aimed, and exceptions were allowed in cases — notably Florida State University’s Seminoles — when schools could demonstrate they had authorization from the tribes involved.

But Lauerman returned to what has been the nickname defenders’ key argument throughout the legal maneuvering, that in 1969 tribal leaders from Standing Rock and Spirit Lake reservations “converged at UND and held a sacred ceremony” in which UND was given the right to use the Fighting Sioux name.

“To belittle this ceremony is blasphemous, and that is what the NCAA has done,” Lauerman said.

Not allowing the Sioux a seat at the table during negotiations reflected “blatant disregard for this 1969 sacred ceremony.”

Evidence

Exactly what was said and meant at the 1969 ceremony has been a matter of dispute.

Questions asked by the judges during oral arguments may suggest which disputed aspects of a case interest or concern them most.

Smith, the presiding judge, asked Lauerman, “Doesn’t this authority (to keep or change a nickname) rest with the (state) board in North Dakota?”

Malloy challenged Lauerman’s assertion that UND and the Sioux had entered into a contract through the 1969 ceremony. The name was a gift, the judge said, “and a gift does not imply a contract.”

Lauerman replied that UND had established many Indian-related programs, such as the Indians into Medicine program and an Indian Studies curriculum.

“The evidence is there,” he said, “that there was a contract, and it grew out of that 1969 ceremony,” and the NCAA had interfered with that, forcing UND to surrender the widely revered nickname by threatening sanctions that could severely damage the athletic program.

“They backed down,” Lauerman said of UND officials. “They folded because of all the money they make off athletic competition.”

Is there evidence the NCAA knew about the ceremony? Malloy asked.

Spirit Lake noted it in a 2010 letter to the NCAA leadership, Lauerman said. And while he has no evidence that they knew about it prior to the 2007 settlement agreement between North Dakota and the NCAA, the tribe believes the association had to be aware.

Policy question

Duncan was asked why the NCAA policy had not been applied to such schools as Notre Dame, which calls itself the Fighting Irish and uses a representation of a leprechaun as a mascot.

No leprechaun has ever “shown up at NCAA headquarters and demanded” a change, he said, while the association has received a great many appeals from American Indian individuals, associations and tribes.

The Standing Rock Sioux Tribe has “on at least three occasions” formally asked that use of the Sioux name as a nickname stop, he said.

Many efforts

The Spirit Lake committee, joined by Fool Bear, filed its lawsuit in U.S. District Court on Nov. 1, 2011, alleging violations of contract law and federal civil rights laws. They also sought reversal of the 2005 NCAA policy against use of American Indian names and imagery by member schools, which led to the running conflict with UND.

District Judge Ralph Erickson dismissed the suit in early May 2012.

The Spirit Lake committee and Fool Bear filed notice of appeal at the end of May.

In June, voters in the North Dakota primary election overwhelmingly endorsed retirement of the nickname.

But just three days later, the Spirit Lake committee filed additional documents with the appeals court, arguing that the Sioux people had been denied “a seat at the table” as the controversial issue worked through state and federal courts, the North Dakota Legislature and NCAA governing bodies.

After the primary election vote, the State Board of Higher Education directed UND to retire the historic nickname and Indian head logo, which the university has done. While many fans have held tight to Fighting Sioux regalia and identity, UND athletic teams have since competed officially as “North Dakota” and “UND” while the university complies with a state-imposed nickname moratorium until 2015.

After Thursday’s hearing, Soderstrom said he remains optimistic that the Fighting Sioux nickname can be returned.

“The Sioux people got a bum deal,” he said. “They’ve had no input in the decisions. All they’ve had was a vote (a 2009 referendum at Spirit Lake endorsing UND’s use of the nickname), which was sabotaged by Standing Rock not letting their people vote.”

Despite efforts by Fool Bear and others, the Standing Rock Tribal Council refused to arrange a vote on that reservation, choosing to stand by earlier council declarations opposing use of the name. That doomed efforts to get namesake approval, a requirement of the 2007 legal settlement.

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