Tribe Can’t Revive ‘Fighting Sioux’ Nickname

(CN) - Two groups of Native Americans do not have standing to keep the University of North Dakota from retiring its use of the controversial "Fighting Sioux" nickname, the 8th Circuit ruled.

UND had long used the nickname for its athletes program, and received ceremonial approval for such use in 1969 from the elders of the Standing Rock Sioux Tribe and one elder of the Spirit Lake Tribe of Indians.

Standing Rock apparently retracted that approval in the following years and adopted resolutions in 1992, 1998 and 2005 to have UND discontinue using the name Fighting Sioux.

The 2005 resolution coincided with an effort by the National Collegiate Athletic Association to have its members stop displaying Native American mascots, nicknames and images at championship events.

UND, an NCAA member, challenged that policy in a 2007 lawsuit, ultimately reaching a settlement that would let it keep the Fighting Sioux nickname with approval from Spirit Lake and Standing Rock by Nov. 30, 2010.

Though Spirit Lake granted approval, Standing Rock never voted on the issue.

In 2009, the North Dakota State Board of Higher Education decided to avoid NCAA sanctions by retiring the Fighting Sioux name early. This prompted a committee of Spirit Lake to filed a suit that proved unsuccessful in state court.

The committee then partnered with Archie Fool Bear, a member of the Standing Rock tribe, in a new lawsuit. Fool Bear purports to represent 1,004 members of Standing Rock. They sought an injunction, plus $10 million in noneconomic damages.

Defending their standing, the committee and Fool Bear said that retirement of the Fighting Sioux nickname "would dishonor the sacred ceremony [granting it] and violate their dignity."

They also claimed it would cause "family turmoil, shame, humiliation, persecution, and damage to Sioux youth self-esteem and educational opportunities."

A federal judge in Fargo nevertheless granted the NCAA summary judgment, and a three-judge panel of the St. Louis, Mo.-based federal appeals court affirmed Wednesday.

"The committee has not shown that the NCAA acted with discriminatory intent," Judge William Benton wrote for the panel. "The NCAA claims to be motivated by the desire to eliminate the use of 'hostile and abusive' mascots and imagery, but ultimately agreed to allow UND's use of the Fighting Sioux nickname if the Spirit Lake and Standing Rock tribes approved."

Benton said that the ceremonial approval of the name did not constitute a valid contract.

"However meaningful the nickname's grant may have been, there was no contract because there was no indication of mutual intent to create a legal obligation, let alone an obligation sufficiently definite and certain that a court could require its performance," the six-page ruling states.

Furthermore, any emotional harm claimed by the committee would not be relevant because "the committee complains of injury from UND's ceasing to use a name because of the policy of an association to which UND voluntarily belongs."

"Even if the Committee's alleged injury is sufficiently concrete and particularized, it does not result from the invasion of a legally protected interest," Benton wrote.

The court also found no support for the claim that the NCAA violated its own rules of due process.

"The committee cannot complain of being denied due process by the NCAA because, as a nonmember, it was entitled to none from the NCAA," Benton wrote.

After the North Dakota Legislature repealed a state law requiring UND to use the nickname and American Indian head logo, voters overwhelmingly approved the measure in the 2012 primary.

UND now uses the nickname Coyotes.

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