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Chuck Haga, Forum Communications Co., Published April 19 2012

Fighting Sioux nickname appears in federal court; Spirit Lake seeks access to sealed records in 2007 state court case

FARGO — The Spirit Lake and Standing Rock Sioux tribes "were not and are not indispensable parties" to the 2007 settlement agreement between the University of North Dakota and the NCAA, the association's attorney argued in U.S. District Court here Thursday.

Jonathan Duncan told the court that the agreement "gave UND a period of time" to seek authorization from the two tribes for continued use of the Fighting Sioux nickname. That agreement "didn't require the tribes to do anything or preclude the tribes from doing anything," he said.

Duncan and Reed Soderstrom, attorney for the Spirit Lake tribe's Committee for Understanding and Respect, appeared before Chief Judge Ralph Erickson to address the NCAA motion to dismiss a lawsuit brought by Spirit Lake and Archie Fool Bear, representing pro-nickname member of the Standing Rock tribe.

"This case is about righting a fundamental wrong," Soderstrom said.

"The NCAA claimed that Sioux voices mattered and would be heard" at the time the settlement was made, he said. "But the NCAA is not interested in hearing any arguments about the 1969 ceremony," an event at UND during which elders from both tribes endorsed UND's use of the Sioux name, according to nickname supporters.

"The Sioux people have repeatedly been denied a seat at the table."

The oral argument lasted about an hour and a half and supplemented extensive written briefs filed earlier with the court. At the conclusion of the hearing, Erickson said he "will try to render an opinion in the near future."

John Chaske and Eunice Davidson, leaders of the pro-nickname effort at Spirit Lake, and Fool Bear were among a number of Fighting Sioux nickname advocates who sat through the hearing.

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

Soderstrom said afterward that he was "cautiously optimistic" about Erickson's decision.

Duncan declined to comment.

Request denied

On the eve of Thursday’s hearing, Soderstrom had asked Erickson to unseal records of the 2007 Grand Forks County District Court case that incorporated the settlement agreement between the NCAA and the State of North Dakota.

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.”

Soderstrom filed the motion Tuesday, arguing that “it is believed the sealed records include discussions with the NCAA Boards and Committees regarding the ‘Fighting Sioux’ name.”

He wrote that the question of whether “the 1969 religious ceremony and the rights of the Spirit Lake Sioux Nation and Standing Rock Sioux Tribal members were discussed” in negotiations for the settlement is “at the heart of the issue in this (federal) case.”

Erickson denied Soderstrom’s request on Wednesday.

“The state court is perfectly competent to make decisions regarding which of its records should be sealed, and this court will not infringe on the province of the state courts, especially when it totally lacks jurisdiction to do so,” the judge wrote.

Key ceremony

The Spirit Lake Sioux Tribe and Fool Bear sued the NCAA in U.S. District Court in November, arguing that the two tribes were “indispensable parties” who were left out of negotiations leading to the 2007 settlement agreement.

In the 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.”

In their brief supporting the motion to dismiss the suit, the association’s lawyers argued that the 1969 ceremony had no legal significance and the tribes have no standing in the dispute between the NCAA and North Dakota.

The 2007 settlement gave UND and the State Board of Higher Education three years to gain formal authorization from the two namesake tribes to continue to use the nickname. Voters at Spirit Lake gave their OK in a 2009 referendum, but efforts to arrange a vote at Standing Rock — led by Fool Bear — were thwarted by the Tribal Council, which has passed several resolutions opposing UND’s use of the name.