North Dakota higher ed board might challenge on UND nickname

By Dale Wetzel
Bismarck, North Dakota (AP) May 2011

The Board of Higher Education may consider a legal challenge to a state law requiring the University of North Dakota to keep its Fighting Sioux nickname and logo, which the NCAA considers hostile to American Indians, the board’s president said.

Jon Backes said he already has asked university system attorneys to review whether the law that takes effect Aug. 1 illegally infringes on the board’s power to manage North Dakota’s 11 public colleges, which is bestowed by the state Constitution.

Backes said he also intends to ask Attorney General Wayne Stenehjem to undertake a similar review. A group of 10 state lawmakers – nine Democrats and one Republican – already has sent a letter asking the GOP attorney general for a formal legal opinion about whether the Fighting Sioux legislation collides with the board’s constitutional authority.

“We should have a discussion about whether we want to have the courts define what that constitutional authority means,” Backes said. “If the language in the constitution doesn’t mean that the board owns that (nickname and logo) issue, and has authority over it, I’m not quite sure what it means.”

During a board meeting at Bismarck State College, Backes asked members to think about steps they would be willing to take to resolve the dispute.

The NCAA considers UND’s Fighting Sioux nickname and the school’s American Indian head logo to be abusive to American Indians and has said the state law won’t shield the school from penalties for continuing to use the moniker.

UND agreed in October 2007 to drop both unless North Dakota’s Standing Rock Sioux and Spirit Lake Sioux tribes endorsed their continued use. The Standing Rock tribal council declined to do so, and the board directed UND President Robert Kelley to begin the process of retiring the nickname and logo by August 2011.

The pro-nickname legislation, which was approved overwhelmingly in the North Dakota House and Senate and signed by Gov. Jack Dalrymple last March, halted the retirement plans.

Last week, the board voted to rescind its earlier retirement orders to Kelley, and endorsed an earlier decision by William Goetz, chancellor of the state university system, to continue licensing Fighting Sioux merchandise, such as jerseys and caps, during the 2011-12 school year. UND had stopped approving new merchandise designs in October 2010.

Board member Claus Lembke suggested during the discussion that the board bar the NCAA from selling any Fighting Sioux gear through its website. Lembke’s motion died when none of the board’s seven other voting members seconded it, a result Lembke called surprising.

“They shouldn’t be selling our Fighting Sioux shirts and paraphernalia,” Lembke said. “They profit from it. That’s ridiculous.”

The lawmakers’ letter to Stenehjem asks whether the state constitution allows the Legislature to invalidate UND’s 2007 lawsuit settlement with the NCAA, and whether the constitution permits lawmakers to dictate whether UND keeps or discards its nickname and logo.

It was written by Rep. Lonny Winrich, D-Grand Forks, and signed by Democratic Reps. Eliot Glassheim, of Grand Forks; Richard Holman and Lee Kaldor, both of Mayville; and Rep. Jerry Kelsh, D-Fullerton, the House Democratic leader, as well as Democratic Sens. Jim Dotzenrod, of Wyndmere; Richard Marcellais, of Belcourt; Tim Mathern, of Fargo; and Connie Triplett, of Grand Forks. One Republican, Fargo state Rep. Kathy Hawken, also signed.