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Chuck Haga, Grand Forks Herald , Published August 07 2012

Federal judge throws out Sioux lawsuit, saying supporters 'consigned to dust heap of history'

Declaring that the long, contentious fight over UND’s Fighting Sioux nickname appears to be over, U.S. District Judge Ralph Erickson on Friday dismissed a lawsuit filed almost a year ago by six American Indian students at the university.

Erickson said the overwhelming June 12 primary election vote authorizing retirement of the nickname “would appear to have finally ended any meaningful opposition” to that historic action.

“While some last gasps of further political action are still echoing across the state, it appears that as a political issue, the ‘Fighting Sioux’ nickname and logo dispute has been resolved and the losing position consigned to the dust heap of history.”

The lawsuit was filed in U.S District Court on Aug. 11, 2011, by the six students, who alleged violations of state and federal civil rights laws. They named the state and its top officers, Gov. Jack Dalrymple and Attorney General Wayne Stenehjem, as defendants, along with UND and the State Board of Higher Education.

Grant Shaft, who was president of the board through much of the recent wrangling over the nickname, said Tuesday that he expected the students’ suit would be dismissed.

“It’s nice to have that resolved,” he said. “We’re one step closer now to every outstanding question being resolved and allowing the university to completely move on.”

Carla Fredericks, New York, lead attorney for the students, said Tuesday that she would have no comment on Erickson’s decision or the possibility of appeal.

In his order granting defendants’ motion to dismiss, filed on Friday in federal court in Fargo, Erickson noted that the nickname “has been the source of considerable strife and debate for many years,” and the fight “has been waged in the media, the North Dakota Legislature, the courts and most recently at the ballot box.”

State voters overwhelmingly approved a measure in November to allow UND to retire the nickname and logo, and the State Board of Higher Education immediately directed UND to fast-track the retirement. Erickson cited those actions as evidence that much of the students’ arguments in their lawsuit had been rendered moot.

The referendum had been sought by nickname supporters, led by pro-nickname members of the Spirit Lake Sioux Tribe. Despite the substantial margin against their “save the nickname” effort, the tribe’s Committee for Understanding and Respect continues to circulate petitions for an initiated measure to secure the nickname in the state Constitution through a new statewide vote in November or in 2014.

‘Tortuous history’

Erickson also made reference to the other federal lawsuit involving the nickname — which also landed in his courtroom — and observed that “the federal courts have not been spared the onslaught of contentious litigation” over the name, first used in 1930.

The judge earlier this year dismissed the other lawsuit, brought by nickname supporters at Spirit Lake and the Standing Rock Sioux Tribe against the NCAA. That action has been appealed to the 8th U.S. Circuit Court of Appeals.

Erickson’s order in the students’ lawsuit offers a relatively brief history of the nickname struggle, despite his observation that “the tortuous history of the … controversy is incapable of full explanation here.”

That history runs from early protests against the nickname, through the NCAA’s adoption of a policy against use of American Indian names and imagery and UND’s resistance to that policy, to the 2011 North Dakota Legislature’s adoption of a law requiring the school to continue using the name.

But “like the nickname debate itself,” Erickson wrote, the state nickname law “has its own winding history,” from its adoption following a rousing email campaign by supporters, to its repeal in November following an unsuccessful state appeal to the NCAA, to the vote in June, which effectively sustained the repeal.

No evidence of intentional discrimination

In their lawsuit, the students — members of Sioux and other tribes — argued that use of the name and logo had created a hostile educational environment for Indians and had a negative psychological effect on Indian students.

They also cited such personally damaging effects as vulgar taunts, racist remarks and threats posted on bulletin boards.

But Erickson noted in his order that the lawsuit made “no allegation of any faculty member, government official or other defendant directly engaged in acts done intentionally to discriminate against the students.”

The argument over whether the use of the nickname was proper “may never be settled,” Erickson wrote, but “the very fact that reasonable disagreement exists on the issue forecloses the possibility that the use of (the name and logo) constitutes intentional discrimination rising to the level” of a federal civil rights violation.

He also refused to find state and university officials guilty of “deliberate indifference,” as incidents described by the students “appear to be isolated and remote, and there is no allegation that state officials were made aware of these incidents.”

The students also had argued that the nickname issue, while appearing to have been made moot by the June 12 vote and state board action, could return via the proposed initiated measure.

But Erickson wrote that the likelihood of a second statewide vote going the other way “is extremely dubious at best when viewed in light of the resounding defeat of Measure 4.”

Call Haga at (701) 780-1102; (800) 477-6572, ext. 1102; or send email to chaga@gfherald.com.