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Chuck Haga, Forum Communications, Published August 23 2012

NCAA scoffs at ‘discrimination’ claim

GRAND FORKS – Fighting Sioux nickname supporters at Spirit Lake Sioux Nation base their appeal of a federal judge’s dismissal of their lawsuit against the NCAA on a claim that was never raised at trial and “has no support in fact or law,” the NCAA argues in a brief filed Wednesday with the 8th U.S. Circuit Court of Appeals.

The pro-nickname committee filed its lawsuit against the athletics association on Nov. 1, 2011, alleging that a dozen state and federal laws and civil rights statutes make the tribe “an indispensible party” to negotiations over use of the Sioux name.

The tribe and Archie Fool Bear, representing pro-nickname members of the Standing Rock Sioux Tribe, asked the court to overturn the NCAA’s 2005 policy prohibiting display of “hostile and abusive” American Indian nicknames, mascots or imagery by member schools at NCAA championship events.

U.S. District Judge Ralph Erickson heard oral arguments on April 19 in Fargo in the Spirit Lake lawsuit against the NCAA. He dismissed the lawsuit on May 1, holding that the tribe lacked standing to challenge the policy of a voluntary, private organization.

The tribe filed its appeal on June 15, arguing that a 1969 “sacred ceremony” at UND involving elders of the two Sioux tribes gave UND the irrevocable right to use the name, and that the NCAA adopted its policy on the use of Indian names and imagery “with the specific intent to discriminate against the Sioux people” and to infringe on their contract rights under the 1969 ceremony.

While the 1969 ceremony has been central to the nickname defenders’ campaign, the discrimination claim had not been made before, the NCAA responded in its filing Wednesday. But “even if plaintiffs had pled and preserved this claim, it has no support in fact or law” and no further oral argument is warranted.

“However sincere plaintiffs’ antipathy toward the NCAA or the policy, as the district court correctly held, they lack standing to sue,” NCAA attorney Jonathan Duncan wrote. Their appeal, he added, “is as procedurally improper as it is futile.”

Nothing in law or in the case record supports the Spirit Lake committee’s “fanciful argument that the NCAA intentionally adopted the policy as an ‘anti-Sioux’ measure designed to cause UND to repudiate its obligation under a 40-year-old oral agreement,” a claim “never asserted before now.”

Spirit Lake’s committee and Fool Bear have until Sept. 5 to respond.

Chuck Haga writes for the Grand Forks Herald.

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