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N.D. Supreme Court hears UND nickname case

By Tu-Uyen Tran, Grand Forks Herald

One of the questions in the state Supreme Court hearing Tuesday involving UND's Fighting Sioux nickname is what the state's intent was when it agreed to the settlement with the NCAA in October 2007?

The NCAA didn't want UND to use the nickname because it considers American Indian nicknames offensive.

According to Solicitor General Doug Bahr, UND only wanted to neutralize the NCAA policy of sanctioning schools with such nicknames. That is, UND wanted to have other options, and one of those is to win the support of the state's two Sioux tribes.

Under questioning by justices Tuesday, he went so far as to say that even if the state hypothetically got that support today, it could still retire the nickname tomorrow if it wanted.

According to attorney Lolita Romanick, who represents nickname supporters from one of those tribes, the Spirit Lake Dakotah Nation, UND didn't want other options. It wanted to keep the nickname and, to do that, it wanted to give the tribes a chance to weigh in.

The difference of intent would, respectively, either allow the State Board of Higher Education to change the nickname whenever it pleases -- the board indicated it would be pleased to change the nickname months ago -- or require the board to keep the nickname until Nov. 30, 2010, the settlement deadline with the NCAA, so that the tribes have time to weigh in.

Questioned by justices, Romanick said the board could get tribal support and decide to retire the nickname anyway, but the board would have to wait until Nov. 30.

Tuesday's hearing before the state Supreme Court is the culmination of a lawsuit that the Spirit Lake nickname supporters filed in fall 2009 against the state to prevent the board from retiring the nickname before the deadline. A district judge in Devils Lake ruled for the state.

The Supreme Court adjourned Tuesday without a decision, as it usually does. It will issue a written decision later.

The context

The problem is, what many assumed would happen in 2007 -- that the state would fight tooth and nail to win support for the nickname -- didn't quite happen. And the settlement may or may not have reflected that assumption.

One Supreme Court justice distinguished between "actual intent" and the intent embodied in the settlement, the point being the intent in the settlement is what matters in this case.

The reason the state board hasn't been so hot about the nickname recently is UND wants a quick resolution to the controversy. Administrators want to join the Summit League athletic conference, which it considers crucial to its success in the transition to Division I athletics. But the league won't consider UND's membership until the nickname issue is resolved.

In the meantime, even though the Spirit Lake tribe approved the nickname with 67 percent of voters in support, the Standing Rock Sioux Tribe has, until very recently, appeared to have made zero progress toward a decision.

Nickname supporters there only submitted Monday a petition to the Tribal Council to put the nickname on the ballot.

The apparent lack of progress and the potential opportunity cost of not getting into the Summit League in a timely fashion set the state board's priorities.

The Spirit Lake nickname supporters, fearing their work in rallying voters would be for naught, sued the state and caused the board to not retire the nickname until the lawsuit was settled.

A key question

So, back to the question of intent.

In line with her argument, Romanick asserted that because the intention in the settlement was to win support of the tribes, which essentially promises the tribes they would have until Nov. 30 to make a decision on the nickname. In doing that, they made the tribes beneficiaries of the settlement. They had a right speak and be heard by the board, not have the board decide before they can do so.

The plaintiffs seeks, she said, "to have the State Board of Higher Education seriously consider, value, honor and respect our input and to seek our input, the input of the Sioux people of North Dakota."

One place in the settlement where that's noted is a clause that says "Whereas, UND recognizes North Dakota Sioux tribes ... have important contributions in determining whether, to what extent and in what manner 'Sioux' name and the 'Fighting Sioux' nickname and logo should continue to be used..."

Bahr disagreed. The "whereas" clause is just part of the preamble and is nonbinding. Unlike Romanick, he made a point of limiting intent to only what's explicitly stated in the settlement rather than the broader context leading up to the settlement.

In fact, he argued, there are no third-party beneficiaries. The tribes might be incidental beneficiaries, but the intent was never to make them beneficiaries.

The settlement is between two parties, he said: UND and the NCAA. The dispute the settlement resolved was whether the NCAA had the right to apply its policy of sanctioning universities using Indian nicknames to UND. UND had sued the NCAA to prevent the sanctions.

The settlement gives UND a grace period during which the NCAA cannot sanction it and extends that grace period if the university wins tribal approval, Bahr argued.

"This issue was not about the State Board of Higher Education's authority to change the name," he said. "It was about implementation of the NCAA policy."

The tribes, he said, were never involved in that original lawsuit against the NCAA.