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Judge rejects Sioux nickname suit

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Though he said he didn't want to, district Judge Michael Sturdevant on Friday sided with the State Board of Higher Education in a lawsuit involving UND's Fighting Sioux nickname.

He wrote in his opinion that he could find nothing in the settlement between the state and the NCAA that requires the board to keep the nickname and the state constitution does give the board the authority to run state universities.

Sturdevant had no choice but to dismiss the lawsuit against the state.

But then, unusual in a court order, he went on to excoriate the board for its "disingenuous" approach to the nickname issue after so much tax dollars and hope had been invested in the settlement process.

Nickname supporters from the Spirit Lake Dakotah Nation were one of those hopeful, and they filed suit when it appeared the state board was about to change the nickname, contrary to its earlier stated intention to fight for the nickname.

The supporters' attorney, Pat Morley, said Friday that he'll appeal Sturdevant's decision to the Supreme Court.

Attorney General Wayne Stenehjem said the hurdle for Morley will be to get a stay to block the state board from changing the nickname during the appeal, and he doubts the board will want to let that happen without a fight.

The settlement in November 2007 was the end result of a lawsuit the state filed against the NCAA, which threatened to sanction UND because the athletic association considers American Indian nicknames offensive. Both sides agree to give UND until Nov. 30, 2010, to win the support of both the state's Sioux tribes.

Buying time

Earlier this year, the state board imposed a series of deadlines, the last one ending Oct. 31, because UND wants to apply to the Summit League, and that athletic conference wants the nickname issue settled before it even considers the application.

That's when the Spirit Lake nickname supporters sued the state board. Their tribe had voted by 67 percent to approve the nickname, and they wanted to buy time for compatriots at the Standing Rock Sioux Tribe.

The lawsuit has so far bought them at least a month. Some state board members had indicated the board was on the verge of retiring the nickname at its Nov. 19 meeting in Minot. The lawsuit and the accompanying restraining order got in the way of that.

The board has already held its monthly meeting Dec. 17 so, barring a special session, won't have the opportunity to take action on the nickname until January's monthly meeting.

Still, it's not immediately clear that the board can do that without the judge's permission.

Sturdevant's opinion, in recounting the legal process that led up to the ruling, starting with the temporary restraining order he signed Nov. 9, ambiguously stated: "This temporary restraining order has continued to be in effect."

Morley said a separate order lifting that order is needed, but Stenehjem said he doesn't think so because such an order has to be underlain with a lawsuit and the lawsuit's been dismissed.

In the meantime, Morley will have about 30 days to file the appeal.

Typically, he said, it takes the Supreme Court six to nine months from the time the notice of appeal is filed to the time it issues an opinion, but in cases where a restraining order is involved the court tends to shorten that to about three months.

Strict reading

The arguments in the case are as follows:

According to the plaintiffs, they, as North Dakota Sioux people, are party to the settlement even though they're not signatories because the state has to seek their permission to keep the nickname. Losing the nickname, they said, would harm them because having a tie to UND gives them a platform to popularize Sioux history and heritage.

They claim the deadline in the settlement doesn't allow the state board to change the nickname early because, as parties to the settlement, they'd counted on the Nov. 30, 2010, deadline in their struggle to win tribal approval.

The state argued for a more-or-less literal reading of the settlement, which means it's an agreement between just two entities, the NCAA and the state. It also means there is no way to read the settlement as forbidding the board from retiring the nickname early.

Simply put, the settlement requires the consent of the Sioux tribes to keep the nickname, but nothing is required to drop it.

Judge Sturdevant ruled that Sioux people do have standing to sue in this case. But he had to agree the settlement gives the board the right to retire the nickname early and, even if it had not, the board still had the constitutional authority to do so, and the constitution would've trumped the settlement.

Reluctant ruling

Nevertheless, he was at pains to express how much he hated to take that position.

"The undersigned would have candidly preferred a different result," he wrote of himself.

Sturdevant went on to say that "a substantial sum of taxpayers' dollars together with public resources were invested in the litigation against the NCAA" and, with that, "the plaintiffs and an untold number of the Fighting Sioux constituency believed that it was safe to assume the board would seize upon the opportunity to preserve an honored tradition."

Instead, he wrote, minutes of board meetings submitted by the plaintiffs "indicate a disingenuous change of heart that is perplexing."

Stenehjem, who was involved in the lawsuit against the NCAA and remains a nickname supporter, said he agrees with the judge's praise of the plaintiffs and of his critique that a lot of money has been spent, but the case wasn't about those things.

"The bottom line for the ruling is basically what we had indicated our filing," he said.

"Like it or not, the Board of Higher Education has the authority to regulate and oversee all the operations of the institutions of higher education and that includes the determination of what nicknames and logos are appropriate."