State Board asks for statement from ND Supreme Court declaring nickname law unconstitutional
February 13, 2012 at 10:32 am in Grand Forks Herald
The State Board of Higher Education today asked Attorney General Wayne Stenehjem to seek a declaratory statement from the North Dakota Supreme Court declaring the Fighting Sioux nickname law adopted in April 2011 to be unconstitutional. Continue Reading
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Honestly while I am not a real fan of the board just simply due to a lot of other factors.(read this as the Chancellor). If the board didn’t do this, they would be abrogating their authority given to them by the people of North Dakota to the Legislature. This was done in our past for reasons that have been expressed numerous times on these forums during this discussion.
If the name is going to be saved at all, it is going to have to happen through the Spirit Lake lawsuit against the NCAA. Period. People may not like it, but in all honesty only the Native Americans have it within their power to save the name of an institution that many people hold dear. That agreement that was signed ensured that they were going to be the only people to have the power to decide. Everything up until that case is actually heard is nothing more than political posturing and legal maneuverings to prove their point in court.
From my perspective, I have never found the name hostile or abusive. My stance has always been that after we failed the November 30th, 2011 date that we had one recourse, and that was to change the name.. Why? Because we were unable to meet the agreement, and to not do so would damage the schools ability to function as both an athletic institution and an educational institution. I didn’t think that either of the groups that were supposedly offended (according to the NCAA) by the name would ever take it to the court. I for one am kind of glad they did, because they need to show their voice. In my opinion one of the major points that they have, that I think is one of the few that holds water.. Is they were not allowed in on the negotiations since they were the ones that were supposedly the offended party.
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Sorry that should be November 30, 2010.
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“….but in all honesty only the Native Americans have it within their power to save the name of an institution that many people hold dear. ”
Uh, the name of the institution is the University of North Dakota, not Fighting Sioux University. This is about more than the name of a few athletic teams. Maybe you should figure that out.
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Maybe you should figure out that I support the University as a whole, and not just the name and logo. But then I guess reading comprehension is difficult.
My comment was purely directed at what Todd said about the SBoHE and disliking them for their current actions. When those current actions are necessary for reasons BEYOND the name and logo. Again, personal opinion here, but what they are doing now should have been done last year when the law was originally passed.
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maverick: I’d like the Attorney General to respond to that. Why wasn’t that his advice last summer? Probably because they were expecting the November repeal and not imagining the petition and subsequent vote. It’s hard to judge a well-intended board action. They don’t have a crystal ball.
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I agree they don’t have a magic ball Alvin, and with all of the bad press that they have had are more than likely feeling they are walking a political tight rope. But doing what they are doing now, after the petitions were signed have a lot of people upset because they feel the board is trying to circumvent the will of the people. But I guess its better now then to waste even more tax dollars on an issue that I feel will ultimately only be decided by the SL lawsuit.
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Go back and read it again. You can’t seem to separate the school from the nickname, and that’s what the problem is with so many of the name’s supporters.
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Alan.. I understand that many supporters can’t separate the name from the school, I understand that the diploma doesn’t say Fighting Sioux University.. I get that. But please understand that on a personal level I support UND the school. I support UND Athletics. I also support NDSU as a school and NDSU athletics.
I put in one of my other posts that this is more than just about a name and logo. I firmly believe that, because the controversy isn’t just limited to the schools. I also believe that if the name is to be saved the Native Americans are the only ones that can do it in their lawsuit (and then only maybe).. There is nothing that I can do that is going to change the NCAA’s mind. I’ve worked around Corporate America enough to know that.
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The institution name is still the native name “Dakota”.
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What part of unconstitutional are you having trouble understanding? This is not exactly a surprising development. Any other action would have been surprising.
We have said all along your only hope is the constitutional amendment. I look forward to working very hard to see that you fail. I do not begrudge you trying, I just have no intention of helping. Quite the opposite in fact
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Always you are whining again. It is hardly judicial activism when your own lawyer says the law won’t stand constitutional muster.
Keep trying Always. One of these days you will accidentally stumble on an argument that sticks. I have faith. Until then just keep blanking the liberals & everyone else except yourself,
It was your side not mine that failed to get the tribes’ support. If you had we wouldn’t even be here now, would we?
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Don’t normally agree with Kevin, but it definitely is a waste of money.
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It’s so frustrating that they didn’t take this action in June, instead of ordering President Kelley to reinstate the nickname. The board is not scared of result of the vote. They want a speedy end to this. A court ruling in March might be the quickest. Right or wrong, many people felt that the law was unconstitutional. If it is, there’s no point in a vote. 100% of the population should agree that the law should be followed, that the constitution matters. I’m sure alwayscorrect and four other guys think that’s even fixed. Every time Soderstrom speaks he sounds less and less like a law man.
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I just knew you would dislike my respect for the constitution and following the law. You rock.
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Here we go again….
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You are so right.
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I’m not a fan of Bud light, but I love that Here “Wego” commercial.
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The SBoHE does not and should not have an opinion on “hostile or abusive”. The matter was out of the SBoHE hands the moment Charles Murphy and the SRC said “NO” to any further discussion. If CM would have said “YES”, then the SBoHE would have been in favor of keeping the name because then there was no hostility or abuse to consider. Everybody would have been happy!
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You can all see why House Majority Leader, Al Carlson, also known as “alwayscorrect” is so worked up over this Fighting Sioux nickname law adopted in April 2011. It was Al Carlson aka “alwayscorrect” that introduced that nickname law to the North Dakota legislature.
Now that everything has come full circle, it appears the SBHE will challenge that very same April 2011 law to the North Dakota Supreme Court. The highest court in North Dakota will now decide the constitutionality of that law.
No wonder Al Carlson aka “alwayscorrect” is crawling up the walls.
How interesting is that.
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Many perceive this to be a battle between the UND hockey program vs the rest of UND athletics, and that point is hard to argue. It is no secret that Hakstol worked behind the scenes via email to persuade the ND legislature to make the Sioux nickname law despite the fact it puts the viability of all the other UND sports programs in serious jeopardy. Now Hakstol has been silent on the very real possibility that the UND hockey teams will not have the very lucrative ability to play Minnesota and Wisconsin after next season unless the Sioux name is dropped. Not only will money be lost, the fans will be deprived of the excitement only those teams bring to the Ralph. We have lost NDSU in football, now this will purge our natural rivals in hockey. We the fans, deserve better. Dave Hakstol you are the mouthpiece for UND hockey. You need to swallow hard and do what is right and publicly support the dropping of the Sioux name, just as a grieving family has to do when asked to turn off life support for a loved one. Life isn’t always fair and this is a prime example.
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UND and the Big Sky: Who said what, when?
Carlson checking out UND communications with Big Sky, NCAA
Rep. Al Carlson, R-Fargo, used North Dakota open records law last week to obtain emails between UND President Robert Kelley, the Big Sky Conference and the NCAA since Jan. 1, apparently seeking to learn whether Kelley was working behind the scenes to counter Carlson’s efforts to save the Fighting Sioux nickname.
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Rep. Al Carlson, R-Fargo, used North Dakota open records law last week to obtain emails between UND President Robert Kelley, the Big Sky Conference and the NCAA since Jan. 1, apparently seeking to learn whether Kelley was working behind the scenes to counter Carlson’s efforts to save the Fighting Sioux nickname.
The Herald also obtained the emails, one of which indicates that Kelley knew about a letter coming from the Big Sky warning that the nickname issue could “destroy” Division I athletics at UND.
Through a spokesman, Kelley denied again Tuesday that he sought the Big Sky statement.
Carlson, the House majority leader and author of a new state law requiring UND to continue using the Fighting Sioux name and logo in defiance of NCAA policy and scheduled sanctions, has raised questions about Kelley’s role in the controversy.
Objecting last week to Kelley’s calling for repeal of the nickname law — while Carlson was trying to arrange a meeting with NCAA officials to press the state’s case for retaining it — the legislative leader said “the well has been poisoned many times by people at the university, setting us up for failure.”
He also suggested last week that Kelley or others at UND encouraged Big Sky leaders to issue their warning about the potentially dire consequences of allowing the conflict with the NCAA to continue.
Carlson, visiting Medora, N.D., with his wife, said Tuesday he has received the emails “but I haven’t had a chance to look at them yet. I’ll do that when I get home.
“I just want to see what the communications were between those folks,” he said. “There might be nothing there. But I’m still convinced a lot of this was set up for failure, and I’m not in favor of that.”
Kelley: ‘Thanks for getting this to us’
In an email sent on June 8 to an assistant to Big Sky Conference Commissioner Doug Fullerton, Kelley acknowledged Fullerton’s letter, received the day before, detailing conference members’ “concerns” about the ongoing controversy over the Fighting Sioux nickname and logo.
“Thanks to both you (assistant Janet Carpenter) and Doug for getting this to us so efficiently,” Kelley wrote.
The letter, which Fullerton wrote on behalf of the presidents of Big Sky member schools, warned Kelley that the nickname issue “has the possibility of destroying Division I athletics at the University of North Dakota” and jeopardizing UND’s pending membership in the conference.
Kelley had attended a meeting of the Big Sky presidents in Utah, “at which he gave a report on what the situation was with the NCAA and where things were with the nickname,” UND spokesman Peter Johnson said Tuesday after conferring with the president.
“The presidents discussed what to do in response to his verbal report to the group,” Johnson said. “They talked at that time about sending a letter.
“He said, ‘I certainly knew they were talking about it, so I knew it was coming.’ But it was not something the president asked for.”
Kelley had responded similarly during the Legislative session when it was suggested that he had sought such an intervention by the Summit League, another conference UND was considering joining.
Another of the emails was sent on April 4 by UND Provost Paul LeBel to Mark Emmert, president of the NCAA, and NCAA Vice President Bernard Franklin, attaching a copy of a resolution adopted by the Great Plains Tribal Chairman’s Association.
“President Kelley suggested that you need to see the attached resolution,” LeBel wrote to Emmert and Franklin.
The resolution, adopted on an 11-0 vote on March 23 in Rapid City, S.D., expressed support for the NCAA policy “to eliminate use of American Indian nicknames, logos and mascots,” which it called “dehumanizing and disrespectful to American Indians and … a racist statement regardless if any state government may pass it as a state law.”
The resolution was signed by Tex Hall, chairman of the Three Affiliated Tribes of North Dakota and current leader of the Great Plains association, most of whose members are leaders of Sioux tribes. It had been forwarded to the president’s office by Sharon Carson, a UND professor of English, who called it “a significant development.”
Johnson, the UND spokesman, said that Kelley decided to forward it to the NCAA “because it was going to be made public” and the NCAA leaders “were going to see it anyway.”
Another email indicates that Emmert asked on June 16 for a telephone conversation with Kelley later that day, but the document doesn’t indicate what the subject was. Johnson said Kelley and Emmert did talk by phone that day, and the subject was logistics — who, when and where — of the proposed North Dakota-NCAA meeting in late July.
Issue ‘resolved’ before Big Sky application
The correspondence released to Carlson also included a brief email sent Jan. 24 by Athletic Director Brian Faison to Fullerton, providing the Big Sky commissioner “a quick heads up” that Faison would testify that week at a House Education Committee hearing on the nickname.
“It is my intention to make only the following reference to the Big Sky Conference,” Faison wrote: “The issue of the nickname and logo had been resolved prior to our conversations with the Big Sky Conference and therefore was never an issue.”
He provided Fullerton with an email address and his cell phone number in case “you have anything to share with me” prior to the House hearing, but there was no indication that Fullerton followed up.
After the House and Senate passed the nickname bill and Gov. Jack Dalrymple signed it into law, state and university leaders looked to a face-to-face meeting with the NCAA for a way out of the impasse. On March 21, Patricia Bohnet, executive assistant to Kelley, sent an email to an assistant to the NCAA’s Franklin, conveying Kelley’s request “that a meeting be scheduled within the next couple of weeks with Dr. Franklin and whomever else he wishes from the NCAA” and a North Dakota delegation that could include the governor, legislative leaders, other state officials, Kelley and Faison.
That was to be the meeting at which Carlson and other nickname defenders explained why they and many North Dakotans — including many Native Americans — feel so deeply about keeping the Sioux name. They hoped to persuade the NCAA to modify its position.
A week later, the emails show, Faison wrote to let Fullerton know of that impending North Dakota-NCAA conference, and on April 8 Kelley and Franklin spoke about it by telephone.
On April 13, Kelley’s assistant acknowledged receipt of an email from Franklin, but Franklin’s correspondence was not attached. Two days later, Kelley wrote to Franklin, noting that the nickname law would take effect on Aug. 1. That email, and Franklin’s response, were made public shortly afterward.
“I need to request clarification of the NCAA’s position regarding the relationship between the University of North Dakota and the NCAA (with specific reference to the 2007 settlement agreement),” Kelley told the NCAA vice president. “In addition, I wish to inquire whether the NCAA is willing to revisit, in any aspect, the terms of the agreement.”
Franklin responded on April 19, reiterating the NCAA policy against use of American Indian names and images, the 2007 legal settlement with UND and UND’s failure to “obtain necessary support from the identified Sioux tribes,” as required under the settlement.
Thus, given the new state law and the consequent halt in UND’s transition away from the nickname, “North Dakota will be subject to the provisions of the policy,” Franklin wrote. “Unfortunately, HB 1263 cannot change the NCAA policy nor alter the contracted terms of the Agreement.”
State leaders continue working to arrange a meeting in Indianapolis with NCAA officials, despite another declaration earlier this month that the athletics association “has no intention of changing its position” and that UND continues to face sanctions after Aug. 15.
The NCAA has provided two dates in late July when its leaders could be available to meet with a North Dakota delegation, and Grant Shaft of the State Board of Higher Education is checking those dates with Carlson, the governor and others.
By Chuck Haga, Grand Forks Herald
http://www.grandforksherald.com/event/article/id/208152/
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Who has time or cares to read anything that long? I mean seriuosly here….if you have that much interest in this subject than the rest of your life must really suck.
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Or you’re still living in mom’s basement.
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Wrong. The NCAA uses those terms. And the SR Council acquiesced. The UND would have been happy to keep the name if the SRC would have approved. There is no effort on the UND to say the name is hostile and abusive. Those are terms used by other people.
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You are in denial. Talk to your therapist.
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How witty! FAIL!
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Warriors does not have to mean Native American. Look up “Wounded Warriors”. Warriors is clearly a military term. It is not controversial. Here’s info on the GF-AFB Warriors of the North: http://www.facebook.com/pages/Warriors-of-the-North-Grand-Forks-Air-Force-Base/119047998108978 Outstanding suggestion! Even your friends at the NCAA would bless it.
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The logo could be a Fargo National Guard joystick pilot launching a missile from a GF UAV Global Hawk at a Sioux logo head.
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I’d rather think it would be a state of the art fighter jet with a fison in its cross hairs!
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Comely us your head for thinking not spewing garbage. Why are we at this stage again. The repeal law also said a three year moratorium was to set in place. Cooling off give the Spirit Lake lawsuit time to run it’s coarse. UND would be known as simple UND, not the NoDaks or anything else. No need to change Sioux Boosters or any other name. No need for Big Sky or NCAA or anyone to do anything for at least two years. If the lawsuit failed game over, but if the lawsuit was successful UND is the Fighting Sioux and NO money wasted. But that is not what happened. The State Board and Kelley in their zeal to get rid of the Name and logo lied to the legislators in saying they would honor the repeal law. But immediately violated every aspect of that law. Bringing about the petition and now the State Board and Kelley say that not only the Native Americans but the citizens of North Dakota have NO rights and need to be silenced. WHO THE HELL DO THEY THINK THEY ARE?
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Sadly the AG is suppose to work for the citizens of North Dakota and yes protect the Constitution, but the petition did not just say repeal the repeal it also said UND will be the Fighting Sioux. The Constitution gives citizens the ABSOLUTE right to petition for grievances and the AG now says no. This is Chicago Politics at it’s worsted. Although I voted for the AG it will never happen again. He clearly does not respect the Citizen of the State. If you remember when the original law was past it was because the overwhelming support from the citizens of ND. The e-mail shut down the switch board at the capital in support, that was the citizens speaking and now we are told to shut up.speaking. It is more than a shame. The State Board needs to be abolished.
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That’s not how it happened at all. The AG’s oath of office includes supporting the Constitution of the U.S. & of ND. He seems to feel strongly that the June law was unconstitutional. If the court determines that to be so, then the vote of the people is a complete waste of time. Some might be curious about how the vote would turn out, but it would be moot, and probably an illegal use of taxpayers dollars. Your support of the nickname has made you irrational gotten you to completely lose your manners. I wonder if you’d say some of these things to their faces.
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If the AG was so sure this was unconstitutional, why didn’t he do something about it when it passed.
Why didn’t the SBHE do something when it first occurred?
Let me answer that.
In my opinion it was because they never expected it to get this far. One would think that they would relent given the obvious support for the name retention. It just gives more evidence that this is not about the name being Hostile and Abusive, or college athletics or anything else.
It is about control.
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I AGREE WITH YOU!! Except for the last part, about them relenting. So, if they feel it’s unconstitutional in June but don’t act because they didn’t think it would go this far, you don’t relent from a constitutional conclusion, “because of obvious support for the nickname”. That’s just silly.
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How about Oilers, Wildcatters, Roughnecks, Drillers, Petros, Bakkens, Derricks, Crude, Strikers, Explorers, Pluggers, Gushers, Bits, Flares, Blowouts, Haliburtons, Brown& Rooters, Global Warmers, Greenhousers?
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“Warriors does not have to mean Native American”
Don’t tell me…Tell the NCAA
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Found it…
tj…you can take a pass, kinda long for you. Maybe someone on MSNBC can read it for you and let you know what to think.
NCAA asks, Why ‘Warriors?’
By Ferd Lewis
Advertiser Staff
The NCAA wants to know what the University of Hawai’i-Manoa is doing with a “Native American” nickname.
And, UH wants to know why the NCAA thinks its nickname — Warriors — is Native American.
“That’s what we told the NCAA,” said John McNamara, UH associate athletic director. “They understood, but still asked us to complete the paperwork.”
The NCAA has asked 30 schools, including UH, “why they have that as their nickname (and) how it correlates to their mascot,” said Gail Dent, NCAA associate director of public relations.
“We’re gathering information (on Warriors) because it is a name often associated with Native American imagery,” Dent said. As part of the process, schools are being asked to fill out self-study questionnaires.
So, McNamara said, “We will comply.”
Dent said approximately 70 percent of the schools have so far complied with the NCAA directive.
“I can’t imagine anyone ever objecting to The Kamehameha Schools calling themselves ‘Warriors’ — ever — since they were built on the memory of The Conqueror,” said Jon Osorio, assistant professor of Hawaiian Studies at UH.
“It is difficult to get angry at the (university) for using it,” Osorio said. “It is just when they do stupid things like having that (1980s or ’90s) mascot with the body suit or changing the name without consulting anyone. People who are upset are upset because of that.”
Jim Manke, UH-Manoa spokesman, said he was unaware of any complaints about the Warrior nickname by Hawaiian or Polynesian groups.
The NCAA stepped into the issue of imagery, nicknames and mascots after the NAACP began a 2000 economic boycott of South Carolina over that state’s use of the Confederate flag.
The NCAA imposed a two-year ban on holding its championships in South Carolina in 2002 and extended the ban indefinitely last year.
Since then, the NCAA’s Minority Opportunities and Interests Committee has taken an interest in nicknames, mascots and symbols.
“If it is a situation where that’s not the case (the nickname referring to Native Americans) at any particular institution, they can send the self-evaluation back to the NCAA specifying that,” Dent said.
When UH unveiled its new kapa-trimmed “H” logo and nicknames in 2000, a lone student protester’s shouts of “Stolen Hawaiian land!” were the only protests.
There were more protests over UH cutting back the use of “Rainbows,” which had been in use since 1923 and an administrator blaming gay symbolism as a contributing factor. He later apologized.
Welcome to NnCaAzAi America.
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“Welcome to NnCaAzAi America.”
This was not part of the article.
This is my statement. I just don’t want the author to get the credit/blame.
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Thank-you.
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How can it not mean Native Americans went it comes after Dakota as in “North Dakota Warriors”.
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Do you think that “youdontknowme” will finally, now, begin to understand how ridiculous it was that the NCAA became involved in this non-issue from the beginnning.
Once it begins there is no end to this PC garbage.
It is an ignorant and useless policy, accomplishes absolutely nothing, yet they persist…why?
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Does anyone know how much the NDSBHE receives in compensation from the good people of North Dakota?
I cannot find it.
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Yes, somebody knows. At least as relevant to the subject, does anyone know the price of tea in China?
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LOL…sort of.
However…the point was made earlier that the BSHE should be abolished. It appears that it is a part time job for these folks.
I have read the web page…little fuzzy what it is they are supposed to be doing anyway.
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Since the name is gone unless Always and his friends can pull off the constitutional amendment (not likely but entirely possible), I agree with the author above who stated it is time to search for a replacement.
Before you go on about the moritorium, if requiring a name is unconstitutional, requiring no name is equally void.
I once again would like to advance the Sun Dogs: they only happen in the north, are a natural phenomena so no permission is needed, and there is no one who could claim it is even remotely racist.
I say lets put out a request for designs.
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Why not just have the NCAA tell the UND Alumni and the people of the State of North Dakota what name they will use?
As you can see by the attempt at “warriors” by “youdontknowme” …any attempt by the ignorant unwashed of North Dakota is futile.
In fact, google “sundog” and you will find reference to Native American folklore….or you could view it as folklore of the settlers, which was a harbinger of the destruction of the Native Americans…which I find offensive and I am sure many others do also….so….that’s out.
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Now, before you go off on how ridiculous the argument is against Sun Dogs, you need to look at how ridiculous the argument is against the Sioux.
Someone, somewhere…. finds it offensive
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Futility will be applied to those with vain attempts to retain the name, especially efforts made with easily recognizable irrelevant points. To those who continue to follow the path of futility, you may not be as daft as your comments make you seem but misguided and bitter is not a very good way to go through life! There’s a new UND coming…get out of the way!
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Maybe…but you can bet the name won’t be “Warriors.”
Can you feel it?
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A/C “deep thinking tj” thinks you are standing in a deep puddle of muck with your mouth open and your mind closed. You are living under a “black cloud” that has been following you around consuming your life since 2005. If I could I would give you a hug, pat you on the back, and tell you that there is hope for you. What you have is curable. You just need to walk away from the keyboard, put on your sneakers, and go for a walk.
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“tell you that there is hope for you”
Hope?
Like Obama type hope?
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8 out of 10 stories on these boards are for this name game nonsense, and several of them are pretty close in content. Apparently someone at the Herald is too lazy to look for articles and just slaps up any article pertaining to the Sioux name because of course…..We just don’t care about anything else…..I’m surprised that so many of the same posters want to continue with the same arguments they’ve been using for all these years on this issue…..It’s been said over and over again……We can cut down to say a limit of three related articles and you’d still get every argument ever posted….
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North Dakota Supreme Court Opinions
Davidson v. State, 2010 ND 68, 781 N.W.2d 72
Filed Apr. 8, 2010
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2010 ND 68
Eunice Davidson, John Chaske, Oliver Gourd, Renita Delorme, Lavonne Alberts, Frank Blackcloud, Demus McDonald, Alex Yanton, Members, Committee for Understanding and Respect, Plaintiffs and Appellants
v.
State of North Dakota, by and through the North Dakota State Board of Higher Education, Defendant and Appellee
No. 20100022
Appeal from the District Court of Ramsey County, Northeast Judicial District, the Honorable Michael G. Sturdevant, Judge.
AFFIRMED.
Opinion of the Court by Sandstrom, Justice.
Lolita G. Hartl Romanick (argued), Patrick Robert Morley (on brief), and Bradley John Beehler (on brief), P.O. Box 14519, Grand Forks, N.D. 58208-4519, for plaintiffs and appellants. Douglas Alan Bahr, Solicitor General, Office of Attorney General, 500 North 9th Street, Bismarck, N.D. 58501-4509, for defendant and appellee.
Davidson v. State
No. 20100022
Sandstrom, Justice.
[¶1] Eight members of the Committee for Understanding and Respect (“plaintiffs”) appeal from a district court judgment dismissing their action against the State Board of Higher Education to enforce a settlement agreement in a prior lawsuit by the University of North Dakota (“UND”) and the Board against the National Collegiate Athletic Association (“NCAA”) and to enjoin the Board from shortening the time period for the Spirit Lake Tribe and the Standing Rock Sioux Tribe to consider approving or rejecting UND’s use of the “Fighting Sioux” nickname and logo. Because we conclude the district court did not err in interpreting the language of the settlement agreement, we affirm.
I
[¶2] In August 2005, the NCAA adopted a policy prohibiting member institutions from using or displaying hostile and abusive racial or ethnic nicknames, mascots, or imagery at NCAA championship events. The policy prohibited identified member institutions from bidding and hosting NCAA championship events and from selling nickname, mascot, or imagery related merchandise at NCAA championship venues. The policy also urged member institutions to refrain from scheduling regular season games against institutions identified as subject to the policy. The NCAA identified UND and its Fighting Sioux nickname and logo as a member institution subject to the policy.
[¶3] In October 2006, the Board and UND sued the NCAA, challenging the NCAA’s promulgation of the policy and its application of the policy to UND. In October 2007, the parties to that action executed a settlement agreement in which UND recognized the “North Dakota Sioux Tribes . . . have important contributions in determining whether, to what extent and in what manner the ‘Sioux’ name and the ‘Fighting Sioux’ nickname or logo should continue to be used in conjunction with the athletic tradition at UND.” The Board and UND agreed to dismiss their claims against the NCAA pertaining to the policy, and the NCAA agreed to provide UND “a period of time until November 30, 2010 (the ‘Approval Period’), to seek and obtain namesake approval for its nickname and related imagery, during which time the Policy will not apply to UND and UND will not be restricted from hosting and bidding to host championship events for which it otherwise would be eligible to host.” The settlement agreement required UND to have “clear and affirmative support” for use of the nickname and logo from both the Spirit Lake Tribe and the Standing Rock Sioux Tribe and provided that if UND obtained tribal support within the approval period, the NCAA policy would not apply to UND unless either of the tribes withdrew or reversed its support for UND’s use of the nickname and logo.
[¶4] The settlement agreement required UND to announce the “transition to a new nickname and logo which do not violate the Policy or render UND subject to the Policy, if [i] it is unable to secure namesake approval as set forth in this Agreement prior to the expiration of the Approval Period, or [ii] namesake approval, once provided, is withdrawn.” The agreement said, “If UND does not adopt a new nickname and logo, or if the transition to a new nickname and logo is not completed prior to August 15, 2011, then UND will be returned to the list of institutions subject to the Policy.” The agreement required UND to continue to solicit the views of the North Dakota Sioux Tribes on the appropriate use of the Sioux name and related imagery in UND athletics. The agreement also stated, “If UND announces a transition to a new nickname and logo at the end of the Approval Period, or at anytime during the Approval Period,” the NCAA would remove UND from the list of institutions subject to the NCAA policy and UND would retain any intellectual property or licensing rights to the Fighting Sioux nickname and logo. The agreement required the NCAA to make a public announcement that it did not dispute UND “has indicated that it intends to use the current name and logo with the utmost respect and dignity, and only for so long as it may do so with the support of the Native American community.”
[¶5] In April 2009, the members of the Spirit Lake Tribe voted to allow UND to continue using the Fighting Sioux nickname and logo and the Spirit Lake Tribal Council thereafter adopted a resolution granting UND perpetual use of the nickname and logo beginning on October 1, 2009. In May 2009, the Board passed a resolution to retire the Fighting Sioux nickname and logo, effective October 1, 2009, with full retirement completed on August 1, 2010, unless both the Standing Rock Sioux Tribe and the Spirit Lake Tribe gave namesake approval consistent with the settlement agreement for a period of not less than 30 years. As of October 1, 2009, the Standing Rock Sioux Tribe had not voted either to approve or to disapprove UND’s use of the nickname and logo.
[¶6] The plaintiffs, enrolled members of the Spirit Lake Tribe, thereafter sued the Board, alleging its proposed termination of the Fighting Sioux nickname and logo before November 30, 2010, violated the settlement agreement and seeking to enjoin the Board from terminating the nickname and logo before November 30, 2010. The plaintiffs claimed the settlement agreement precluded termination of the nickname and logo before November 30, 2010, and the Board was contractually bound to make a good-faith effort to obtain namesake approval from both tribes during that time. The district court granted the plaintiffs’ ex parte motion for a temporary restraining order. Before answering the complaint, the Board moved to dismiss the plaintiffs’ action and to vacate the temporary restraining order, arguing the plaintiffs lacked standing to challenge the settlement agreement and the Board had authority to terminate the nickname and logo before November 30, 2010.
[¶7] After a hearing, the district court concluded the plaintiffs had standing to sue the Board. The court nevertheless dismissed the plaintiffs’ complaint to enjoin the Board, concluding the settlement agreement was not ambiguous and the Board’s decision to terminate the nickname and logo before November 30, 2010, did not violate the plain language of the agreement. The court explained there was “nothing in the Settlement Agreement which binds the Board to the continued use of the Fighting Sioux nickname or the pursuit of tribal namesake approval,” and under the agreement, “the NCAA simply agreed that it would not enforce its Policy against UND during the Approval Period in order to allow the Board to make an effort to obtain namesake approval until November 30, 2010 if it so chose.” The court explained there was nothing in the settlement agreement requiring UND to retain the nickname and logo and the language of the agreement contemplated transition to a new nickname and logo “at any time during the Approval Period.” A judgment was entered dismissing the plaintiffs’ complaint, and they appealed.
[¶8] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The plaintiffs’ appeal is timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 28-27-01.
II
[¶9] The Board argues the district court erred in deciding the plaintiffs have standing to enforce the settlement agreement. The Board claims the plaintiffs do not have standing because they are not parties to the settlement agreement and they are not intended third-party beneficiaries of the agreement. The plaintiffs respond they are third-party beneficiaries of the agreement and they have standing.
[¶10] Under N.D.C.C. § 9-02-04, “[a] contract made expressly for the benefit of a third person may be enforced by that person at any time before the parties thereto rescind it.” See Apache Corp. v. MDU Res. Group, 1999 ND 247, ¶¶ 1, 10-11, 603 N.W.2d 891 (affirming dismissal of plaintiffs’ action because evidence and language of contract did not show parties expressly contracted for benefit of third party). Because the plaintiffs’ status as third-party beneficiaries involves the interpretation of the language of the settlement agreement, we consider the district court’s interpretation of that agreement in conjunction with this issue.
III
[¶11] The Board moved to dismiss the plaintiffs’ complaint before filing an answer. See N.D.R.Civ.P. 56(b) (“party against whom a claim . . . is asserted . . . may move, at any time, with or without supporting affidavits for a summary judgment in the party’s favor”). The district court considered matters outside the pleadings, including video exhibits and testimony, in ruling on the Board’s motion to dismiss and effectively treated the motion as one for summary judgment under N.D.R.Civ.P. 56. See N.D.R.Civ.P. 12(b) (stating if court considers matters outside the pleadings in deciding motion to dismiss for failure to state a claim upon which relief can be granted, motion must be treated as one for summary judgment under N.D.R.Civ.P. 56); Livingood v. Meece, 477 N.W.2d 183, 187 (N.D. 1991) (discussing relationship between N.D.R.Civ.P. 12(b) and N.D.R.Civ.P. 56). Consequently, we review the plaintiffs’ appeal under the standards for summary judgment, which is a procedural device for promptly resolving a controversy on the merits without a trial if there are no disputed issues of material fact and inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. Beckler v. Bismarck Pub. Sch. Dist., 2006 ND 58, ¶ 7, 711 N.W.2d 172.
[¶12] The plaintiffs argue the plain language of the settlement agreement delegated to the two Indian tribes the ultimate authority to determine usage of the Fighting Sioux nickname and logo. The plaintiffs claim the agreement gave the two tribes an opportunity to approve use of the nickname and logo until November 30, 2010, and the Board’s decision to retire the nickname and logo before November 30, 2010, constitutes a breach of the settlement agreement. The Board counters that the settlement agreement does not require the Board to wait until November 30, 2010, to change UND’s nickname and logo; rather, the Board asserts the agreement provided a grace period to secure tribal approval and does not require UND to continue using the nickname and logo during the approval period, or preclude the Board from exercising its constitutional and statutory authority to terminate use of the nickname and logo before November 30, 2010.
[¶13] The parties have postured their argument as an issue about contractual interpretation. When a settlement agreement is merged into a judgment, however, the agreement is interpreted and enforced as a final judgment and not as a separate contract. Silbernagel v. Silbernagel, 2007 ND 124, ¶ 10, 736 N.W.2d 441; Thomas v. Stone, 2006 ND 59, ¶ 11, 711 N.W.2d 199; Sullivan v. Quist, 506 N.W.2d 394, 399-400 (N.D. 1993). Although the actual judgment dismissing the prior action by the Board and UND against the NCAA is not part of the record in this case, the order for judgment of dismissal in that action is part of this record and says that “[e]ach of the claims set forth against [the NCAA] are dismissed with prejudice on the terms set forth in the Settlement Agreement, incorporated herein by reference.” During oral argument to this Court, counsel for the Board stated the settlement agreement in the prior action was incorporated into the judgment in that action, and we interpret the language of the settlement agreement under the rules for interpreting a judgment, which mirror the rules for interpreting a contract. See Slorby v. Slorby, 2009 ND 11, ¶ 6, 760 N.W.2d 89 (district court’s application of rules for interpreting contracts instead of rules for interpreting judgments was harmless because rules for interpreting judgments mirror rules for interpreting contracts); Silbernagel, at ¶ 10 (same).
[¶14] In Sullivan, 506 N.W.2d at 401 (internal citations omitted) (quoting Henry S. Grinde Corp. v. Klindworth, 77 N.D. 597, 613-14, 44 N.W.2d 417, 427-28 (1950) (on petition for rehearing)), we outlined the general guidelines for interpreting a judgment:
“The legal operation and effect of a judgment must be ascertained by a construction and interpretation of its terms, and this presents a question of law for the court. If the language used in a judgment is ambiguous there is room for construction, but if the language employed is plain and unambiguous there is no room for construction or interpretation, and the effect thereof must be declared in the light of the literal meaning of the language used.” The judgment “should be so construed as to give effect to each and every part of it, and bring all the different parts into harmony as far as this can be done by fair and reasonable interpretation.” “A judgment, plain and unambiguous in its terms, may not be modified, enlarged, restricted, or diminished by reference to the” Findings of Fact.
[¶15] The plaintiffs argue the clear intention of the settlement agreement, when read as a whole, is to give the two tribes a meaningful opportunity to demonstrate “clear and affirmative support” for the Fighting Sioux nickname and logo by precluding the Board from retiring the nickname and logo before November 30, 2010. The plaintiffs argue the Board’s reliance on the phrase “at any time during the Approval Period” is contrary to and repugnant to the contracting parties’ intent when the settlement agreement was executed. The plaintiffs argue that phrase must be read in the context of the entire contract, which establishes a time frame for the two tribes to give approval for use of the nickname and logo until November 30, 2010. They claim no language in the agreement gives the Board authority to retire the nickname and logo before November 30, 2010.
[¶16] The Board responds the settlement agreement does not require the Board to wait until the end of the approval period to change the nickname and logo. The Board claims it did not agree to allow use of the nickname and logo until the end of the approval period and the plaintiffs’ interpretation of the settlement agreement ignores the Board’s constitutional and statutory role as the policymaking entity for North Dakota institutions of higher education. The Board asserts the settlement agreement, when read as a whole, does not strip the Board of its constitutional and statutory authority and allows UND to transition to a new nickname and logo “at any time during the Approval Period.”
[¶17] Under N.D. Const. art. VIII, § 5, all North Dakota land grant universities and universities supported by a public tax shall remain under the absolute and exclusive control of the State. The Board is the constitutionally established entity for the control and administration of state educational institutions, including UND. N.D. Const. art. VIII, § 6(1)(a). See also N.D.C.C. §§ 15-10-11 and 15-10-17. The purpose of the settlement agreement was to end a lawsuit by the Board and UND against the NCAA regarding the NCAA’s promulgation of the policy for displaying hostile and abusive racial or ethnic nicknames, logos, and imagery and the NCAA’s application of that policy to UND. The plain language of the settlement agreement does not restrict the Board’s constitutional and statutory authority to change UND’s nickname and logo, and we agree with the district court that nothing in the plain language of the settlement agreement limits the Board’s constitutional and statutory authority, or requires the Board or UND to continue using the nickname and logo throughout the approval period. Neither does the settlement agreement require the Board and UND to change the nickname and logo. Rather, if UND does not obtain namesake approval from the two tribes, the Board and UND agreed to either change the nickname and logo, or be subjected to the NCAA policy.
[¶18] Under the plain language of the settlement agreement, the NCAA agreed not to apply the nickname policy to UND during the approval period, but the parties agreed the policy would apply to UND if it was unable to obtain namesake approval, or if namesake approval was withdrawn. The language of the settlement agreement provided UND with an approval period, but UND did not agree to continue using the Fighting Sioux nickname and logo throughout the approval period. Rather, the settlement agreement specifically states the NCAA agreed to remove UND from the list of institutions subject to the policy “[i]f UND announces a transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” The agreement also specifically states the NCAA agreed that UND shall retain the intellectual property and licensing rights to the Fighting Sioux nickname “[i]f UND announces a transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” That language plainly and unambiguously evidences the parties’ contemporaneous intent that UND could “transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” We reject the plaintiffs’ argument that a more logical interpretation of that phrase only authorizes the Board to retire the nickname and logo before November 30, 2010, if either tribe expressly denied or withdrew approval for the nickname and logo before that date. The plaintiffs’ interpretation is not supported by the plain language of the settlement agreement.
[¶19] Although the language of the settlement agreement recognizes the North Dakota Sioux Tribes have important contributions in determining whether the Fighting Sioux nickname and logo should be used by UND and the agreement requires UND to continue to solicit the views of the two tribes on the use of the nickname and logo, we do not construe that language to require UND to continue using the nickname and logo through November 30, 2010. That language must be harmonized with the language allowing UND to “transition to a new nickname and logo at the end of the Approval Period, or at any time during the Approval Period.” Moreover, we agree with the district court that the language stating that UND “intends to use the current name and logo with the utmost respect and dignity, and only for so long as it may do so with the support of the Native American community” is not a contractual agreement requiring UND to continue using the nickname through November 30, 2010. Rather, that language is a statement about the manner of UND’s use of the Fighting Sioux nickname and logo and not an agreement by UND requiring it to continue using the nickname and logo, or to wait until November 30, 2010, to terminate the nickname and logo.
[¶20] We construe the language of the settlement agreement as a whole to allow UND to transition to a new nickname and logo at the end of the approval period, “or at any time during the Approval Period.” We conclude the plain and unambiguous language of the settlement agreement, when construed as a whole and in conjunction with the Board’s constitutional and statutory authority, does not require the Board or UND to continue using the Fighting Sioux nickname and logo until November 30, 2010. We therefore conclude the settlement agreement, when construed as a whole, does not delegate to the two tribes the ultimate authority to determine usage of the Fighting Sioux nickname and logo, or limit the Board’s authority to terminate the nickname and logo before November 30, 2010.
[¶21] Because we construe the language of the settlement agreement to permit the Board to terminate UND’s nickname and logo before November 30, 2010, it is not necessary to further consider the issue about the plaintiffs’ standing. We have considered the remaining issues and arguments raised by the parties and find them to be either unnecessary to our decision or without merit.
IV
[¶22] We affirm the district court judgment.
[¶23] Dale V. Sandstrom
Carol Ronning Kapsner
Mary Muehlen Maring
Benny A. Graff, S.J.
Gerald W. VandeWalle, C.J.
[¶24] The Honorable Benny A. Graff, S.J., sitting in place of Crothers, J., disqualified.
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