Update 1:34 p.m. Nov. 10, 2009: I’m waiting for a response from the State Board of Higher Education, which hasn’t yet received the restraining order. A spokeswoman said no one there could comment until they’ve seen the order.
I’ve been getting some criticism of the complaint on this blog and by e-mail that I somewhat anticipated last night, but was too tired to really think them through. Here’s what I had:
- Who gets to be the Sioux people? Shouldn’t the tribal government do the suing and not nickname supporters who are just private individuals? The complaint says all Sioux people have this right because all Sioux people are potential beneficiaries of the nickname.
- The settlement doesn’t say UND, and the SBHE by extension, must keep the nickname. It just says if it has the nickname it has to be with the approval of the tribes. So the nickname might belong to the tribes, but the decision to use it or not is up to UND and the SBHE. Does that sound right?
On the other hand, if one were to read the settlement as not only giving UND the time to win tribal approval, but giving the tribes time to come to an agreement amongst themselves, it does make sense that those pushing for that agreement to happen would sue for more time.
This afternoon, I got an e-mail from a reader who sounds like he is a lawyer or has some legal training:
- How was this restraining order justified? Usually one of the factors involved in a restraining order, as my reader wrote, is some argument that the plaintiffs are likely to succeed in a lawsuit. (I have a copy of the legal brief seeking the restraining order, which I’ll talk about shortly.)
- My reader seems particularly annoyed that the plaintiff’s attorney, Pat Morley, decided to file an ex parte petition. Ex parte is Latin for "from one party" and it means the judge began legal proceedings without notifying the other party, in this case, the SBHE. The SBHE spokeswoman said she hadn’t heard of this restraining order until she read my story. Wikipedia says ex parte orders are "severely limited" by the Fifth and Fourteenth Amendments, which both guarantee due process of law.
My reader quotes the state Century Code, section 32-06-07:
32-06-07. Restraining orders – When issued. A restraining order, or an order to show cause in the nature of a restraining order, will not be issued ex parte or without a hearing, unless it shall be shown in the moving papers that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved.
What’s the exigency? He asks.
An exigency is a situation that is "critical" or "urgent," according to my Webster’s. In this case, the exigency seems to be that the SBHE will retire the nickname Nov. 19, which might mean it wouldn’t revisit the issue ever again. The petition cites some Herald stories, which sound like my stories, discussing the potential for the SBHE to retire the nickname.
Here’s some relevant excerpts from the brief supporting the petition for a temporary restraining order:
This litigation seeks to specifically enforce the terms of the settlement agreement providing for the Approval Period remain open until November 30, 2010. Defendant in this action seeks to unilaterally shorten the Approval Period by approximately one year, in violation of the settlement agreement. Defendant in this action also seeks to impose a thirty year written agreement requirement with the Spirit Lake Tribe and Standing Rock Sioux Tribe, which is not a part of the settlement agreement….
Plaintiffs seek an ex parte temporary restraining order prohibiting the State Board of Higher Education ("SBHE") from ordering UND to "retire" the nickname and logo before November 30, 2010 or further order of this court.
The purpose of a temporary restraining order is to maintain the status quo until a determination can be made on the temporary injunction issue. Gunsch v. Gunsch, 69 N.W.2d 739 (N.D. 1955)….
It is only necessary for the petitioner to make a prima facie showing entitling it to a temporary restraining order. Amerada Hess Corporation v. Furlong Oil, 336 N.W.2d 129, 132 (N.D. 1983).
A prima facie case has been defined as:
We have defined a prima facie case in this way: "The plaintiff or moving party generally bears the burden of proof. If the party bearing the burden of proof presents evidence strong enough, if uncontradicted, to support a finding in her favor, that party has made a prima facie case."
Hawley v. LaRocque, 689 N.W.2d 386 (N.D. 2004).
A restraining order may be issued ex parte:
A restraining order, or an order to show cause in the nature of a restraining order, may be issued ex parte without a hearing if the moving papers show "…that there exists such an exigency or occasion as requires the immediate issuance of an order so that the rights of the parties may be preserved." Section 32-06-07,NDCC.
Amerada Hess Corporation, Id. at 132.
The granting of a temporary restraining order does not create any right of its own, but merely protects the rights of the complainant by maintaining the status quo until such time as the show cause hearing on the temporary injunction can be held. Id.
Attached hereto is an article printed on November 3, 2009 in the Grand Forks Herald in which the nickname and logo issued before the SBHE were discussed. The article indicates that the SBHE may "retire" the nickname and logo at its November 19, 2009 meeting, one year and one-half month before the deadline it agreed to in the settlement agreement….
According to news accounts, if the SBHE orders UND to retire the nickname and logo, it is unlikely it will revisit the issue, even if the Standing Rock Sioux Tribe approves its continued use.
Plaintiffs will suffer irreparable harm if the nickname and logo are retired unilaterally by the State of North Dakota before the deadline of November 30, 2010 set forth in the settlement agreement. As third party beneficiaries of the settlement agreement contract, Plaintiffs are entitled to specifically enforce its terms….
Plaintiffs do not seek monetary damages. They only seek that the court order the SBHE to abide by the settlement agreement it entered into with the NCAA. Defendant will not sustain any monetary damages if the temporary restraining order is granted. A hearing can be held at which time evidence can be taken before any significant passage of time. Plaintiffs seek only to preserve the status quo until this litigation can be heard.
The City Beat has a theory about the Fighting Sioux nickname: We’re all characters in some sort of TV show and the writers like to end each episode with a bang. How else to explain the roller coaster that this issue has been on in the last several months? How else to explain why this is the issue that will never end, despite every appearance that it will?
Now, with weeks to go before a State Board of Higher Education meeting where the board appears as if it would be compelled by its own rhetoric to retire the nickname, a judge says the board can’t retire the nickname until a hearing on the matter.
Let me recount the ups and downs that I’ve seen since getting on the nickname UND beat.
- Jan. 15, 2009: The SBHE meets and is supposed to have formed a "high-level committee" to look into the nickname. No high-level player steps forward. See the buildup? Who would be on the committee? A senator? The governor? The attorney general? NOPE. As a side plot, there was some sort of disagreement between the SBHE and Gov. John Hoeven about whether Hoeven would put a representative on the board.
- April 21, 2009: The Spirit Lake Dakotah Nation approves the nickname with 67 percent of the vote. That’s HUGE. The build up involved nickname supporters gathering signatures. Will they get enough? Will the Tribal Council accept the signatures?
As a side plot, there was that accusation by nickname opponents that Ralph Engelstad, the evil emperor behind every nickname plot, had used a very horrible racial epithet against Indians. There was no proof and it faded away.
Another side plot is that "high-level committee," which met once on Feb. 26, 2009, and never met again. It’s like the writers of the show decided the idea just didn’t work out as they’d hope so they’ll just pretend it hadn’t happened.
- May 15, 2009: The SBHE meets and decides to set a deadline of Oct. 1, 2009, contrary to the settlement between UND and the NCAA, which sets a deadline of Nov. 30, 2010. This is not that long after Spirit Lake affirmed support for the nickname and supporters thought there was plenty of time to get Standing Rock on board. Shocking, right?
The side plot is the hold up on UND’s application to join the Summit Leage athletic conference. The league refuses to consider the application until the nickname issue is settled. I realize it is a big deal, but in the narrative of the nickname it hasn’t had much impact. Why? The league commissioner won’t return reporters’ phone calls and it’s just plain hard to figure out why the league’s taken the position it has. Individual schools in the league have played UND as if it’s no big deal.
- Sept. 18, 2009: The Spirit Lake Tribal Council votes to give UND "perpetual" use of the nickname. Not 10 years, not 30 years, not 50 years, but forever and ever, 10-times-infinity years. This follows the 67 percent "yes" vote in April.
The side plot is the Standing Rock nickname supporters’ efforts to get a referendum. They keep talking about doing it, but progress is slow. Will they? Won’t they? Who knows?
Another side plot is the election at Standing Rock. Charles W. Murphy, who said he’d allow a referendum, wins the chairmanship, giving much hope to nickname supporters. Of course, he doesn’t get to vote so it’s not clear what his support means.
Yet another side plot is the approaching constantly moving deadline imposed by the SBHE. It was Oct. 1. Then it was Oct. 31 and maybe Nov. 30 if progress is made at Standing Rock by Oct. 31. Progress isn’t quite made since Chairman Murphy said he won’t work under a deadline. But the SBHE doesn’t require UND to retire the nickname right away. Instead, it won’t consider the nickname until a regular meeting Nov. 19, which effectively extends the deadline from Oct. 31 to Nov. 19. Then Chancellor Bill Goetz asks to meet with Murphy, probably to win some concession so the SBHE can extend its deadline yet again. (Oops, too snarky.)
- Nov. 9, 2009: Spirit Lake nickname supporters got their attorney to get a judge to force the SBHE to keep the nickname until at least Dec. 9. The supporters are suing the state for unilaterally reneging on the NCAA settlement, which they see themselves as being a party to. The nickname, it’s argued, belong to the Sioux people and the SBHE is just a trustee while the Sioux people decide the nickname’s fate. So the SBHE can’t willy-nilly decide to get rid of the nickname, at least under the terms of the settlement.
For now, the side plot is what’s going on at Standing Rock, since nothing’s going on as far as we know. But if something does happen, then it could eventually be another episode-ending shocker.
As I’ve said before, I think the season’s not going to end until Nov. 30, 2010, regardless of what the SBHE says. The show’s getting too hot to be canceled!
Follow the money Tu-Uyen.. Pat Morley didn’t pull that wacky legal argument together for free, and a committee from Spirit Lake that allegedly can’t afford to take out newspaper ads on their own behalf didn’t pay for it either. And where did they find THAT judge, what’s his connection to UND? UND has until November 2010 to win approval, but nothing in the settlement says they MUST seek approval so the idea that someone could be an incidental beneficiary to such a “deal” stinks even from this end of town…
I will also remind you that the last we heard from this “Committee” their press release came straight from the office of the Ralph Engelstad Arena with no contact information for people from Spirit Lake. It would be nice if someone would take the initiative to do some real reporting here.
This is a side show direct from REA. Now REA wants to run University and State of North Dakota policies. The University and State Board should have seen this coming as the Ralph Englestad folks are used to getting their way.
What an idiot judge, Eunice has no legal standing to represent the sioux, any court clerk could tell you that. Eunice is not an elected council person of the entire sioux tribes, of which there are more than two. Eunice has no money to pay all the legal costs, so guess what stupid SBHE, you have just been had by the REA.
This is going to cost the school, state and tribes alot of money, in legal fees and attorney fees, wasted on this stupid issue just for the benefit of the REA.
The allegation supporting standing is pretty weak.
This is kind of appalling the “Fighting Sioux” supporters of the Spirit Lake tribe will go to a judge whose township has the name of the Bottineau Braves and get the support for court action to put a halt to a decision on the “Fighting Sioux” controversy. The Spirit Lake tribe has stepped foot in my back yard with thier controversial issue…Bottineau is the next town adjancant to the Dunseith area. Don’t be surprised if the if tribal members of a different affiliation put in a lawsuit also!
What concerns me about this whole situation is that the use of Indian imagery has had an negative affect on all indian tribes when the use American indian names and logos by sporting teams and other institutions.
How can the Spirit Lake tribe support an image of a opposing team who is playng the Fighting Sioux in an ad that shows an Steer doing a sexual act on an Indian, how can the Spirit Lake tribe support fans who pour beer on the heads of our Indian children during a “Fighting Sioux” parade, how can the Spirit Lake nation support the comments and actions towards our American Indian people when opposing fans find it difficult to deal with a loss when playing the “Fighting Sioux?”
No one has control over this kind of bigotry and racist behavior by opposing teams and they have no control over anyones behavior locally! I know if the name of the “Fighting Sioux” were not used at all, the American Indian population would have less time to deal with insensitive issues such as the Grand Forks “Fighting Sioux” issue.
End the use of the name. The Grand Forks Learning Institution didn’t have permission to use it anyway. This as an Infringement case itself.
Supporters of the Spirit Lake tribe should reconsider pushing the use of the “Fighting Sioux” name and logo and be respectful to other tribal members in the state. It would be an honorable thing to do…respect the tribal community as a whole and respect our culture and heritage. Not the one’s who are making a “Mockery” out of it!
Delvin. I think you’re reading a little thing I like to call “propoganda”. Of these isolated incidents you speak of, were you present for any of them? Let me guess, someone you know was? That’s hearsay, which is almost as bad as propoganda.
Also, I’d like to remind you that BOTH of the towns adjacent to you use the moniker of the “Braves”. Belcourt’s schools use it, too, and I have the sporting gear to prove it. I’m sure this is “okay” because it is a tribal school, but a great deal of Bottineau’s highschool attendants are from the Dunseith/Belcourt area. Not that it makes it right, I’m just saying people who live in glass houses shouldn’t throw stones.
Lastly, just because the Standing Rock/Spirit Lake supporters do not share your opinion, doesn’t make them any less deserving of respect. You should remember that Nickname supporters or not, we are all your people and we all have voices which deserve to be heard.
shill, we all have voices that deserve to be heard, well apparently some voices are more valuable than other voices, because they have money attached to them.
I would be satisfied if they called UND, the Standing Rock, Spirit Lake Fighting Sioux, that would be fine, if the SR and SL want to denigrate themselves, then let them do it. But I won’t allow them to drag the rest of the Natives down with them.
shill,
The Bottineau school uses two names that I know of, the Bottineau Stars and the Bottineau Braves. It is eceptional to use the Belcourt Braves for instance because of the overall population is American Indian and the team is located on the reservation. And of course there is some sort of mockery when the reservation team goes out of town and plays non-Indian Teams. The Bottineau Braves located in Bottineau has a sports roster speckled with a few Indians who have helped make the Bottineau teams a success. We are proad of that. I believe because tribal politics play a role in some of our tribal sports activities, some of our kids relocate to other schools where they will have the opportunity to get some player time and be successful.
I wonder if the information you have stated that there is a high percentage of Indian students who attend in Bottineau are from the Dunseith/ Belcourt area. I have to ask for proof of that. I wish some people would be bold and use their real names when commenting. It would make your postings on the interent have more creditabilty to your statements.
Delvin Cree, Dunseith
I find it shameful that a TM res resident would complain about the use of the name “Braves” when Belcourt not only uses that nickname, but it has a huge, stereotypical caricature of a “brave” on its water tower. How ’bout cleaning up your own backyard before worrying about others.
If it is not ok for one school to use “Braves” then it’s not ok for ANY school. Unless, of course, you think one race can say things that other races can not…hmmm, that sounds like the very definition of racism.
You want UND to get rid of its nickname? Why don’t you be just as proactive and vocal about EVERY school (including res schools like Belcourt, etc.) getting rid of their derogatory nickname first, eh?
REA has to be behind this. Unbelievable.
Well Delvin, it looks like you struck a nerve with someone!
As I read the settlement, the SBoHE has until Nov. 30, 2010 to obtain the permission of the Sioux Tribes.
Assuming that every word in the document has meaning, and that subjects that are not explicitly set out by the settlement are at the discretion of the SBoHE and the tribes, one may infer the following:
1) The term of the agreement, and its nature, because they are not explicitly set in the settlement are up to the SBoHE & the tribes to determine.
Therefore, the SBoHE may insist on a 30 year contract because the settlement is silent on the matter.
If the Spirit Lake Tribe is unwilling to negotiate a 30 year contract with the SBoHE, and the SBoHE refuses to back away from the 30 year contract, the nickname may be retired in agreement with the settlement.
2) The settlement requires the consent of the tribes to keep the nickname.
The settlement does not require the consent of the tribes to drop the nickname.
As third parties to the settlement, they have only such rights as are explicitly granted them by the settlement.
These third parties are only given the right to approve the continued use of the nickname.
Per the settlement, the only restriction imposed on the SBoHE is the Nov. 30, 2010 deadline for nickname approval.
The settlement in no way requires that the SBoHE keep the nickname question open until Nov. 30, 2010.
Therefore, under the settlement, the SBoHE may -unilaterally- discontinue negotiations and retire the nickname.
The question of ‘irreparable harm’ to the Sioux tribes as a result of the nickname being discontinued is moot as it relates to this settlement. The Sioux tribes would have to sue the SBoHE and/or UND using that as a cause of action.
Of course they may do just that.
In short, I understand what these Sioux fans are saying, but the settlement does not grant them a cause for action in this instance.
And, frankly, this debate may not end on Nov. 30.
It’s too bad that more people aren’t upset at the NCAA over all of this. The NCAA is the body that decided to pick and choose, which names were “hostile and abusive.” Nevermind that all Native Americans do not get a say in the Native American nicknames that remain. Florida State uses the Seminoles name. It is their mascot, not just a logo like the Fighting Sioux. They also dress up a white kid in Native American dress and have him ride out on a horse during halftime. The local Seminole tribe is okay with the nickname, yet the Seminoles that were sent to Oklahoma years ago, want the nickname removed. Well, the NCAA would not want to change the nickname for Florida State, since it’s such a big money maker.
Great analysis Rich!
Every Native American nickname was prohibited; this is how the remaining three schools with tribal names responded.
- Utah got approval from the Utes.
- Florida State re-confirmed their agreement with the Seminoles
- The CMU Chippewa nickname was approved by the local Chippewa band
Do you see a pattern here? These schools negotiated with the tribes. Had UND done the same in ’05, or even in the years before that–had they negotiated meaningful agreements with the Sioux tribes, well, we wouldn’t be having this discussion today.
And lest you forget, there are far more Sioux outside North Dakota than inside it (in re: “Oklahoma Seminoles” remark). Not to mention the 18-2 vote by the Seminole Nation General Council to stay out of the mascot issue.
Regarding the other two Native American nicknames covered by the ’05 order:
- William & Mary changed their logo
- Illinois was granted a waiver on retirement of the Chief Illiniwek mascot and logo, because there is no longer an Illini tribe.
So, uh, UND brought this on themselves. They could’ve played ball. They didn’t. Now look where they’re at.
Very well said, your analysis is very easy to understand.
I wonder too about the fact that there are more Sioux tribes than the SL and SR, couldn’t any Sioux contest the nickname issue?
UND was trying to play games with the issue and actually it has backfired on them.
Why not just call them the Standing Rock/Spirit Lake Fighting Sioux? Since they are the only Sioux able to have a say in the nickname.
I also wish REA would just come out and say they are fighting for the fighting sioux, instead of hiding behind the SL supporters.
Thanks,
The NCAA has at least been consistent in its arbitrary policy on ‘tribal consent’: Accepting consent from the Saginaw Chippewa, but not requiring consent from any other Chippewa band (including the Turtle Mountain band); accepting consent from the Utah Utes, but not the Colorado or New Mexico tribes; accepting consent from the Florida Seminoles, not the Oklahoma Seminoles.
At any rate, situations like this are why we have the phrase “You made your bed, now lie in it.”
The university, for decades, acted as though it had the right to use (and abuse) the cultural property of an entity wholly unconnected to it without their permission.
Now the university and the SBoHE will be held captive by the tribes they dismissed until this thing is resolved.
I’ve been saying since the start that this should have been dealt with by all the Sioux, not just the tribes in ND.
As far as the NCAA having the right to do tell teams what they can call themselves, I don’t think they do (and never have). I would argue that the name is not a great choice for this area because it (unnecessarily, in my opinion) highlights some of the problems between natives and non-natives.
That so much energy (mine too) has been expended on the idea of what to call a school’s athletic teams continues to boggle me. In the few years since I was a student athlete, it’s become much more clear to me that the NCAA is in it for the money over anything else.
Of course the matter concerns all the Sioux tribes (including the 9(!) in South Dakota and 7(!) in Minnesota–IIRC, not just the 2 in North Dakota).
But the NCAA is at least being consistent in requiring consent only from instate tribes.
Also, how is the NCAA making money off this? (and possibly, UND & the SBoHE have spent more money on this issue than Utah, Central Michigan, William & Mary, Illinois, and Florida State, combined)
Don’t get me wrong, the NCAA is all about the money—and protecting the status quo, why else would they seed only 4 FCS teams and put the other home games up for bids? Why else would they give the Big East three #1 seeds in the BB tournament (only to have the national champion, once again, come from a different conference–once again, in a championship game with no Big East schools).
The only difference between the NCAA & the BCS is that the BCS makes no bones about their interest in money.
I think you missed my point, Rich. I’m not saying another governing body is the answer–I’m saying that they’re all about money.
The rest of your post makes no sense to me, since I couldn’t care less about conferences or national championships for team sports.
I just hope that Eunice and her backers have some money saved up because they could be sued for all the legal costs associated with this lawsuit.
It has been stated that the REA hasn’t funded any of the judicial or other efforts to keep the nickname, but has anyone asked if the Englestad Foundation has done so?
Matt:
How is the NCAA making money off the nickname controversy?
If the idea is Florida State got a pass because they’ve got money, well, that’s hilarious, seeing how little Florida State spent to obtain the goodwill of the local Seminole tribe, versus the fortune that has been spent by the SBoHE trying to sweep the tide back with a broom.
Rich:
I never said they were.