Nickname backers defend NCAA lawsuit

FARGO - An attorney representing American Indians who favor the University of North Dakota keeping its Fighting Sioux nickname appealed to a federal judge here Thursday not to toss the Indians' lawsuit against the NCAA.

"This case is about righting a fundamental wrong," said Reed Soderstrom, a Minot attorney who represents the Spirit Lake Sioux Tribe's Committee for Understanding and Respect, which filed the lawsuit in November in U.S. District Court here.

Chief Judge Ralph Erickson heard about 90 minutes of oral argument Thursday on the NCAA's motion to dismiss the suit. Both sides had filed briefs, which Erickson said he has examined.

Jonathan Duncan, representing the NCAA, told the court that the Spirit Lake and Standing Rock tribes "were not and are not indispensable parties" to the 2007 agreement that settled a lawsuit brought by state authorities against the NCAA.

Thus, the tribes "have no standing" to sue the NCAA, Duncan said.

Erickson said he "will try to render an opinion in the near future."

Focus on ceremony

The settlement agreement gave UND and the State Board of Higher Education three years to gain formal written approval from the two namesake tribes to continue using the nickname. Spirit Lake provided such an endorsement but Standing Rock did not.

Soderstrom focused Thursday on a "sacred pipe ceremony" that occurred at UND in 1969, arguing that it conveyed the tribes' authorization to UND to use the name.

That action was not taken into account when the NCAA and North Dakota officials negotiated the 2007 settlement, he said, and tribal representatives were excluded from subsequent negotiations, including an August 2011 conference at NCAA headquarters in Indianapolis.

"The NCAA claimed that Sioux voices mattered and would be heard" at the time the settlement was made, Soderstrom said. "But the NCAA is not interested in hearing any arguments about the 1969 ceremony," and "the Sioux people have repeatedly been denied a seat at the table."

In his oral argument, Duncan said the 2007 agreement gave UND time to seek approval from the two tribes for use of the Sioux name, but the agreement "didn't require the tribes to do anything or preclude the tribes from doing anything."

He said that UND during the settlement negotiations "was concerned that the NCAA would lobby the tribes" to oppose use of the nickname, so the NCAA agreed to refrain from contact. To make contact, he said, would have been to violate the agreement.

Mainstream world

John Chaske and Eunice Davidson, leaders of the pro-nickname effort at Spirit Lake, sat through the hearing with Archie Fool Bear, who is listed as a plaintiff individually and as representative of more than 1,000 Standing Rock Sioux who signed a petition seeking a referendum on the nickname. The Standing Rock Tribal Council, which has passed resolutions opposing the nickname, declined to arrange a reservation-wide vote.

"I'm always confident, but we'll see what the judge does," Davidson said afterward. She said she took some comfort from hearing Erickson ask the attorneys several questions "about us not being at the table."

Chaske said he was hopeful that Erickson would allow the lawsuit to continue, but he wondered whether his tribe's customs and traditions - including the 1969 ceremony - would carry weight. "We're in a mainstream world here," he said.

Soderstrom said afterward that he was "cautiously optimistic" about Erickson's decision, and he also thought some of the judge's questions signaled appreciation for the Indians' claims.

Duncan declined to comment.

Earlier this week, Soderstrom asked Erickson to unseal records of the 2007 Grand Forks County District Court case that led to the settlement agreement, hoping to learn about any discussions about the 1969 ceremony.

Erickson denied the motion, noting that the federal court "has no jurisdiction to order a state court clerk to unseal a court record and allow review by parties unconnected to the litigation."

Key ceremony

In their lawsuit, Spirit Lake and Fool Bear also accuse the NCAA of violating the federal Indian Religious Freedom Act and the Indian Civil Rights Act and of defaming the Sioux Nation by initially referring to the Fighting Sioux nickname as "hostile and abusive."

But Erickson asked Soderstrom, "If you have a gripe with anyone, isn't it with UND and the State Board of Higher Education?" Later, he asked the lawyer, "Isn't your attack an attack on the sovereignty of the Standing Rock Sioux Tribe?"

Referring to the settlement agreement, Erickson added, "The terms were fairly clear (but) the terms weren't met" within the three-year window.

Soderstrom said that Spirit Lake nickname supporters "acted in good faith," believing they would be included in discussions, but "in the end, they were tied to a sinking ship" because of division at Standing Rock and hurdles in the way of gaining a clear statement of sentiment from the people there.

And the 1969 ceremony should be seen as meeting the settlement requirement, he said.

Elders from both tribes "led a band of Sioux to the ceremony," at which UND President George Starcher was adopted into the Standing Rock Tribe and given an Indian name and UND gained the right to use the Sioux name.

"They went to UND with authority, your honor," Soderstrom said. "They had the authority to give the name."

But when Soderstrom argued that the 1969 ceremony was directly responsible for the growth of Indian programs and services at UND, Erickson interrupted him. Major events were occurring throughout the country in those years, he said, including the 1973 occupation at Wounded Knee, "which caught the attention of all the United States." To credit the 1969 ceremony for all the new opportunities for Indians at UND would be "standing history on its head," he said.

"I do understand the sacredness of the ceremony," he said, "and I do not denigrate it." But, he asked, how could something that happened in 1969 show compliance with a condition established in 2007?

Chuck Haga is a writer for the Grand Forks Herald

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