GRAND FORKS, N.D. (CN) - As University of North Dakota students, staff and alumni vote this week on a nickname to replace "The Fighting Sioux," they have left out an important constituency - the Sioux themselves, tribal members say in court.
Alumni, students, staff, donors and season ticketholders can vote online this week until the polls close at midnight Friday, but members of the Sioux tribe and a state representative say the vote should be stopped because the Sioux were not consulted, and a popular name choice was left off the ballot.
A Fargo judge denied the request for a restraining order and injunction on Monday, finding the plaintiffs showed no support for their claim of irreparable harm.
After the ruling, state Rep. Richard Becker, a former president of the UND Alumni Association and one of the plaintiffs, told the Grand Forks Herald, "We obviously will regroup and consider what our options are."
The vote, and the lawsuit, have deep roots in the Dakotas.
Lead plaintiff Lavonne Alberts et al. sued the University of North Dakota and the state on Oct. 15 in Grand Forks County Court, to try to stop or delay the online vote, which began as scheduled Monday.
Voters are offered five choices to replace "The Fighting Sioux," which was the school dropped in 2012 due to public controversy and NCAA rules.
The choices are the Fighting Hawks, Nodaks, North Stars, Rough Riders and Sundogs. A UND task force selected them from 1,172 suggestions from the public.
If one name gets 50 percent plus 1 vote, it will become the school's new mascot. If not, there will be a runoff between the two top vote-getters.
The election is not open to the general public. About 82,000 emails have been sent to UND students, alumni, faculty, staff, donors and season ticketholders containing a link to a private voting site.
Alberts calls the vote improper. Her grandmother, Alvina Alberts, participated with other tribal elders in a sacred pipe ceremony in 1969 "in which the Sioux Nation bestowed upon the University of North Dakota the Fighting Sioux name."
"Someone with no other ties to UND other than the purchase of a season ticket is allowed to participate in the vote on the nickname selection, but not the members of the Sioux Nations, who bestowed the name to UND," the lawsuit states.
She also protests that the option of "UND" was not included on the ballot simply because defendant university President Robert Kelley, head of the task force, "didn't like the name."
The name UND has become popular among students and alumni, the complaint states. However, "Defendant Kelley made his position very public that he did not like that name [UND] despite the fact that the nickname UND, North Dakota is extremely popular among the UND faithful, and the favorite to win in any vote. Defendant Kelley exerted undue executive influence over the task force thereby causing the elimination of the UND nickname as a potential choice on the vote," according to the complaint.
UND spokesman Peter Johnson told Courthouse News Monday: "The school's name is North Dakota. It isn't a nickname."
During the controversy that led to the school's dropping "The Fighting Sioux," the NCAA said schools that wished to use Native American imagery and names needed support from the tribes involved.
North Dakota's Spirit Lake Sioux put the issue to a vote, and tribal members favored keeping The Fighting Sioux, so the tribe endorsed it.
But the Standing Rock Sioux, also of North Dakota, insisted that UND drop the Sioux name, though that tribe did not put it to a public vote.
"There is no clear front-runner yet," UND spokesman Johnson told Courthouse News. "The voting is being handled by a third party and is not being actively monitored. We won't know until the vote closes."
The third plaintiff is William Le Caine Sr., a UND alumnus who went on to play professional hockey, including a stint with the NHL's Pittsburgh Penguins.
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.