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Chuck Haga, Forum Communications, Published August 11 2012

Nickname appeal argues NCAA using 'cartel powers to eradicate Sioux history'

GRAND FORKS - In their campaign earlier this year to persuade North Dakota voters to rally to the University of North Dakota’s Fighting Sioux nickname, proponents regularly argued that university leaders were exaggerating the potential harm that keeping the name and logo could do.

University leaders, coaches, higher education officials and alumni leaders warned that keeping the nickname would bring NCAA sanctions and likely lead to problems with recruiting, scheduling, conference affiliation and UND’s new Division I status.

“Fear tactics,” said those seeking to preserve the nickname.

But they lost badly in the June 12 primary, and they failed to prevail in U.S. District Court, where their lawsuit against the NCAA was dismissed on May 2.

Now, however, the Spirit Lake Sioux Tribe’s pro-nickname Committee for Understanding and Respect argues in its appeal of that dismissal that the sanctions amount to “palpable coercion” — and are evidence of the NCAA’s use of “its cartel powers to eradicate Sioux history, culture and traditions from public memory.”

Reed Soderstrom, the Minot attorney who has represented the pro-nickname committee through the legal, political and public relations struggles of recent months, turned up the heat on the NCAA in a written brief submitted to the 8th U.S. Circuit Court of Appeals.

He argues that the lower court failed to give proper weight to a 1969 ceremony at UND, which he said granted UND the right to use the Sioux name, and that the NCAA ignored the Sioux tribes’ moral and contractual right to inclusion in any negotiations over UND’s use of the Sioux name.

“The NCAA’s refusal to consult with the Sioux people and recognize their contract with UND suggests a racial animus against Native Americans,” Soderstrom wrote.

“Based on the intensity and self-righteousness of the NCAA’s anti-Sioux crusade, one might think that the Sioux people supported the NCAA’s efforts to abolish the ‘Fighting Sioux’ name,” Soderstrom wrote. “Nothing could be farther from the truth, for the anti-Sioux policy had its genesis among university elites and outsiders who did not consider the Sioux people worthy of consultation.”

Soderstrom, who also renews claims in the appeal that the NCAA executive committee overstepped its authority in enacting a policy against use of American Indian names and imagery, has asked the appeals court for time to present oral arguments.

The NCAA has not yet responded in court to the appeal. A spokesman, Erik Christianson, offered just a one-sentence comment in an e-mail: “The lower court made the correct legal decision, and we believe an appeal should be unsuccessful.”

Soderstrom and other pro-nickname forces continue to rely heavily on the 1969 ceremony, though others — including Sioux people who oppose UND’s retaining the nickname — discount its significance.

Everyone agrees that then-UND President George Starcher was honored in 1969 with a Sioux name, in recognition of efforts by the university to increase educational opportunities for American Indian youth.

But based on a brief reference in a contemporary Herald account and oral accounts by participants in the ceremony and their descendants, nickname supporters insist that the Spirit Lake and Standing Rock tribes entered into a “solemn” contract with UND through a sacred pipe ceremony.

“The sacred pipe was lit to seal the bond of the Sioux word forever,” Soderstrom wrote. “To the Sioux people, abolishing the ‘Fighting Sioux’ name would dishonor the sacred ceremony and violate their dignity.”

Those arguments did not persuade U.S. District Judge Ralph Erickson, however, and he dismissed the lawsuit. It had been filed against the NCAA in November 2011 by the Spirit Lake Nation and Archie Fool Bear, a member of the Standing Rock Sioux Tribe, who had led a petition drive seeking a reservation-wide vote on the nickname issue.

The NCAA adopted a policy in 2005 aimed at eliminating the use of American Indian names, mascots and imagery by member schools. UND resisted and in 2006 sued, angrily disputing the athletics association’s characterization of the Fighting Sioux nickname as “hostile and abusive.”

A settlement in 2007 gave UND three years to win namesake approval or face NCAA sanctions. Spirit Lake gave its consent in a referendum, but the Standing Rock Tribal Council reaffirmed previous council stands against the nickname and declined to arrange a tribal vote.

That led to a dizzying round of legal, legislative and political developments, which seemed to reach an end stage this year with the dismissal of two federal lawsuits concerning the nickname and the June 12 vote, which by 2 to 1 favored retirement.

But the appeal remains, as well as the Spirit Lake committee’s declared intention to seek an initiated measure in June 2014 to place the Fighting Sioux nickname in the state Constitution.