Nickname defenders tell Supreme Court that 1969 ceremony precludes ‘civil interference’
March 7, 2012 at 4:02 am in Grand Forks Herald
The issue before the North Dakota Supreme Court “involves more than choosing between the Legislature and the State Board of Higher Education and its powers to keep or retire the ‘Fighting Sioux’ name,” defenders of the nickname argue in a brief filed with the court late Tuesday. Continue Reading
“They argue that “the 1969 sacred Sioux ceremony giving the Fighting Sioux name to the University of North Dakota constitutes a religious function preventing civil interference.”
OK, let me get this straight, a third party, one not associated with the state of ND in any way, shape, or form, now has control over state government actions?
Makes sense to me. All I have to do to control an entire state is hold a religious ceremony and everyone in that state must then do whatever I say.
If Hollywood tried that story line John Waters wouldn’t even make it. Heck, if he was still alive Devine might agree to play the part of a rabid buffalo, but that is as far as it would get.
If this is what the rest of their brief is like the court should not take long to decide.
I especially like the part about how the ceremony and the vote of SL also obligates the NCAA to see things their way. This case is not about the NCAA or religious freedom. It is about the State Constitution.
I felt like I was reading a post by Always Correct (he can’t stay on point either) instead of a legal brief before the highest court in the state. I am almost embarrassed for them.
Hot debate. What do you think?
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This sounds like a problem between SL and SR, and until that is resolved, how can anyone disagree that the name is a hostile controversy? The disagreement among Tribes is more a basis of support for the NCAA’s policy.
Hot debate. What do you think?
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The alleged ceremony gave UND the approval of SR to use the nickname. In no way can that same ceremony require UND to use the name in any way, shape, or form. Most certainly not in perpetuity.
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Nothing “alleged” about the ceremony it is a very well documented event. Does it have an impact on the state law, Federal law or the NCAA is an entirely different matter. So far the NCAA has refuses to recognize the ceremony or and cultural significance it may have to tribal members spirital beliefs.
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The ceremony took place, of that there is no doubt. In 1969 SR was ok with the name. From the early 1980s onward they were not. This is all documented fact.
To follow the supporter’s logic, since the US was at one time ok with owning other human beings, they must always be ok with it. Changing your mind is not allowed.
I have no clue why we have recurrent elections. If you follow the logic of the supporters one election per country is all you get. Make sure and choose wisely because there is no going back,
Could you imagine how Captain America or Greasy would react if elections were disbanded and the Big O was President in perpetuity? That would be more fun to watch than cable.
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WOW, just simply WOW. This just never ends.
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The last, desperate acts of a bunch of whiners who aren’t getting their way.
Hot debate. What do you think?
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Sometimes the war against Political Correctness must go on.
Hot debate. What do you think?
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Duluth: This is not, nor has it ever been about Political Correctness. That is a red herring (kind of like the union dudes on the ACS boards talking about how much Berg earns). This is about the fact that the vast majority of he people who call themselves “Sioux” do not like UND using the name and have made that stance known.
Political Correctness was/is just a rallying cry of the losing side who do not really care what the Great Sioux Nation wants. This is about what the supporters want.
Anything else is just an attempt to muddy the waters.
Hot debate. What do you think?
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Ok, lets see….Spirit Lake doesn’t deem the nickname and logo as hostile and abusive, Standing Rock doesn’t deem the nickname and logo as hostile and abusive (through informal polls since the tribal council won’t allow a vote on the matter), and the NCAA doesn’t deem the nickname and logo as hostile and abusive (according to the official settlement with UND)…..so what is everyone arguing about?
Hot debate. What do you think?
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Nice try Kenny but you are wrong on two out of three. SR does consider the name hostile and abusive and have voted twice saying so, the NCAA considers the name hostile and abusive or we wouldn’t be here.
Press releases are just that. What matters are actions and so far everyone’s actions show the name to be racist, hostile, abusive, inappropriate, and most of all a distraction to the people of ND.
Someone please drive a stake through its heart.
There was a time when people were sympathetic. They agreed with the people of ND that the NCAA is a bully. Now they look at us with derision (google it before whining about big words Captain). We are marginalizing ourselves better than any adversary ever could.
Recall Uncle Al: It Does a Body Good
Hot debate. What do you think?
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No flying…I’m right on all 3 counts…don’t need your spin. The people of SL and their tribal council voted for approval, the people of SR approve of it, however, their tribal council is not going along with the majorities wishes, and I’m not sure what press release you’re talking about, but I’m talking about the formal agreement between the NCAA and UND….not some press release, spinmeister.
Hot debate. What do you think?
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“…their tribal council is not going along with the majorities wishes…”
Therefore: Standing Rock says it’s H&A. Like it or not, they’re a sovereign nation and that’s how things work.
As far as the NCAA goes, the name was originally called H&A, then it wasn’t in order for UND to obtain permission from both tribes, then it was again considered H&A after the time had passed to gain permission.
Hot debate. What do you think?
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Keep up the good fight Kenny. As we have discussed before no one is quite sure the NCAA relented on the hostile and abusive tag and removed the wording, but the fact remains that they obviously consider it hostile and abusive or we would not be having this discussion would we? A rose by any other name and all that.
As for the SR and their tribal elections: who is spinning who? We have discussed at length SR opposition to the name. We are talking from the 1980s onward. No need to rehash.
You just keep believing whatever you like. Just don’t be too disappointed when the rest of the world ignores your version of reality and keeps on … peace.
Hot debate. What do you think?
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Brent: by “vast majority” I am talking about every NATIONAL Native American organization. They are all on the record against the name. We played fun with numbers on a previous thread so I won’t go there again, but suffice it to say the number of Sioux located within ND is about 1/4 to 1/3 of the total depending on which census numbers you use.
The majority of Sioux are located in SD and then NE. All of the Sioux tribes in ND, including the largest concentration of Sioux in the US (Pine Ridge of Wounded Knee fame) are on record against the name.
Saying by not allowing the vote there is a cover up is simply a straw man. They have voted, twice. In each election there was a pro nickname candidate. In each election he was voted down.
The SR has publicly said they have bigger fish to fry and they are not going to concern themselves with the name: THAT THE TRIBE HAD ALREADY ADDRESSED THE ISSUE and they were not going to bring it up again.
They had addressed the issue by publicly stating their opposition. The supporters argument that the people of SR are disenfranchised, or that the people in SD are preventing the people in ND from voting does not hold water.
It amuses me that the supporters, who purport to speak for the tribes, no so little of their history: unless of course it agrees with their stance. There is not one single Sioux who looked forward to coming to the Rez back in the 1870s. They wanted nothing to do with it. Crazy Horse fought against the reservation system and it eventually cost him his life.
Beyond that, traditional Native people do not recognize boundaries such as state lines. That is what kept getting them into trouble when they were first forced onto the rez. They kept leaving to go hunt, but they were hunting on other people’s land and kept running afoul of the law.
Now, the nickname supporters are trying to convince people that it is the SD Sioux who are preventing the ND Sioux from having their say. See above, they barely recognize the rez, there is no chance whatsoever they advocate a split in the tribe along state lines.
No, the majority of Sioux (Lakota, Dakota, etc.) are against the name. That is just a fact.
Hot debate. What do you think?
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I agree this fiasco has gone on long enough. I received my “Student Guide to Graduation” in the mail today from UND. Now I have to decide whether or not to go for my PhD.
When I got my BA I did not walk. I would like to this time but two round trips in one month is a little pricy. If money was no object I would just take an LOA from work and stay up there the three weeks between when I defend my thesis and the graduation ceremony.
But…money is an object so Hi Ho Hi Ho its off to work I go
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And the beat goes on. Drumes keep pounding rythem to the brain. La-de da-de dee. La-de da-de dah. This things makes my head hurt. Somebody stop this madness! Supremes. It’s up to you.
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I say “alleged” because the only documentation is one disputed article from over 40 years ago. You would think such a significant event would have had more coverage. Unless there is other evidence I’m unaware of?
Hot debate. What do you think?
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Native Americans weren’t given the time of day back then, much less news coverage.
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They are now? There was a story a couple of weeks ago about the largest concentration of Sioux in the United States suing — not over he nickname or cartoon — but over liquor sales.
The tribal leaders were trying to do something about the 80% alcoholism rate on the rez. The drinking problem is so bad that 20% of the babies born on the rez have fetal alcohol syndrome (the national average is less than one percent).
They were complaining that the reservation is dry, yet the closest liquor store to the rez sold 5.2 million cans of beer during the proceeding year.
The law suit was completely frivolous, yet it pointed out a very real problem. How much coverage did it get? Readers were not even allowed to comment on the story and it went away in less than a day.
Now, the battle over one school’s advertising gimmick has consumed the press and people of ND non stop for almost a year.
It is proof that Native Americans do not matter. It is just the old white guys who profess to carrying the “white man’s burden” for a Native people who don’t know what is good for them so they have to show them.
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There was an extensive art. in the NYT yesterday.
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If you say they weren’t given proper respect back then, wouldn’t it be safe to assume they were accustomed to being disregarded by white culture? Couldn’t it also be assumed that the alleged ceremony was held in hopes that it would gain favor with the ruling culture, as an attempt to make peace and end discrimination? Personally, I think the elders in support of UND’s use of the nickname are so indoctrinated with malice and fear of white culture that they would do anything for them with a smile on their face… like say UND could use their name. But of course, it’s totally racist of me to suggest any weakness or false intent on the part of such a minority group.
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Not at all Logan. When you are the oppressed you fight for survival and advantage. To say they (the Sioux) just “took” the discrimination is folly. Everyone has agency. Everyone makes choices. The elders were trying to do the best for their people. More than likely they were hoping the dismal education record of Native people could be improved.
In America the only sure way to get ahead is through education. All of the data regarding earnings confirm that. The only thing that can trump latent discrimination is education.
If your town is in desperate need of an MD, it is amazing how tolerant racists become when they find out the only MD they can attract is Indian (from India), Asian, African, or Native. Without their education these same Indians, Asians, Africans, or American Indians would have a hard time getting served in the diner, much less accepted by the town.
The elders were going for the best they could get for their people.
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I see your point, flyingnurse. I can agree with it in part. My view comes from a belief that a low cultural and psychological self esteem would put them into a position of bargaining. Similar to what you said, even racists will see an MD of a different race for their own benefit.
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How about, the elders were just enhancing the fact that the state is also named after them & they saw it as an opportunity to expand their ID by diversifying their image as a sports image.
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The only question I have, is how can SL speak for SR? I have said time and time again since the agreement was signed, that ultimately it would fall to the Native Americans in order for the compromise to happen. I also truly hope that they can have their voices heard in this matter.
It has been evident over the course of the last many years of this debate that there is a divide in ideology of the two tribes, but the current and several previous SR Councils speaking out against the name and logo cannot understand how one tribe can legally speak for another.
I think both Tribes Councils need to be enjoined into this discussion with the ND Supreme Court as they are separate governing authorities.
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For your answer Mav I would refer you to the piece the Harald did on Eunice a while back. She was explicit: it was not her place to speak for SR.
She believed in their tribal sovereignty and she was willing to stand by their decision as expressed by their tribal council. At no time did she say we have to invalidate what they say or do.
Eunice was the Patron Saint of the advertising gimmick/caricature movement until she disagreed with them, now she is pretty much Joan of Arc.
Always, Captain, Don, and the rest will be calling her a heretic and demanding she be burnt at the stake before this is all over.
Hot debate. What do you think?
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But see, it seems to me they are. The group put in charge to speak on behalf of the SL council when questioned fall back to this ceremony with the SR tribe. Which in my book means that they are trying to speak for those people.
I am not intimately aware of all of the ceremonial customs of the Native American tribes, but with past and current councils speaking out against the name leads me to one of several questions.
With this being a religious ceremony can the actions of someone cause it to be nullified? By that I mean have they or someone disgraced the ceremony or the people who conducted it in some fashion and that in turn has cause the tribe council to state publicly that they still support this ceremony?
If the above is false, then does this mean that the current and previous councils from SR who speak against the name do not put the same weight on this ceremony as others?
It really just makes me wonder is all. Honestly I would like some kind of an answer so that I understand.
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Exactly Mav. Every tribal council on SR since the early 1980s has rejected the actions of the 1969 council – as is their right.
This fact does not fit with the supporter’s world view so it is discounted. SR has not been in favor of the name for over twenty years (Marilyn Haggarty did a piece a month or six weeks ago about SR protesting at UND to get rid of the name).
The agreement was doomed from the beginning because SR would never go along. Everyone knew that, yet are acting surprised by it.
I do not like conspiracy theories, but I do not believe those that made the agreement with the NCAA are/were surprised by SR response.
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Apparently the SR pcers don’t believe their own rituals are sacred.
Hot debate. What do you think?
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Spearman: I refer you back to the earlier discussion about times changing, people changing. Do you believe in slavery? The majority of the founding fathers did. By your reasoning we should still own each other.
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We do still own each other. Your myopic libertarian economics believes in some “invisible hand” voodoo that justifies wage slavery, i.e. minimum wage, & U.S. imperialism. Your ref. to slavery is an apples oranges equation. The Dakota believe their ceremonies are sacred & permanent & for you to minimize their feelings as delusion is the height of patronism.
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I wish that member of the Geomyidae group had a lobby through which they could express their outrage over the use of the simpering gopher as the symbol of the U of M. A sillier mascot I could not imagine. We fans have been wondering about the cause of substandard performance at the U in BB and FB. Could it be as simple as recruits don’t want to be associated with a burrowing rodent?
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You might have a point. But what choice do they have? The badgers? I guess at least badgers are known for being mean and tenacious.
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@bully- good job Reed? Are you being serious or sarcastic? Basing your Supreme Court argument on some obscure 1969 ceremony? That’s the best argument they have??? What a joke, again I feel sorry for Eunice, and the SL tribe, they are being used and will be dropped and forgotten as soon as this case is over.
Hot debate. What do you think?
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I was just studying the picture of Starcher. Poor dude. Here he thought he was just enduring another rubber chicken dinner and public relations event and low and behold 43 years later the Ghost of Christmas Past is resurrected and being fought over. You know he NEVER believed that would happen.
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If this argument originated from the tribes and people that hold the name sacred, great! If this argument originated from some group of attorneys or do-gooders he11 bent on changing the world for the better, screw off!
I do not know for fact, but I thought there was a stipulation to the arena from the benefactor regarding the Sioux name. Once again, if there is a reasonable argument from the tribes, I think it should change. I graduated from a high school that had “Indian” as the mascot name and the only argument came from the do-gooders and no reputable source from a Native American Culture. We had to change the name as it “MAY” offend some party of a Native American Tribe.
I am not sure why they won’t put it to a vote within the tribal council but think that is the only “fair” way of handling the opposition.
NCAA can butt out until that happens and forget any sanctions against the school until the people that bear it’s name deem it offensive.
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Andrew: you need to think your statement through, or at least read the last few threads. 1. Standing Rock has been against the name since the 1980s and has made that perfectly clear to whomever would listen.
2. The majority of the people in the United States who call themselves “Sioux” are against the name.
3. The argument that Ralph put a stipulation in the contract that the arena would close if the school retires the name is false. The name has been retired and there has not been a peep from either Ralph’s family or arena management. That argument is simply wishful thinking on supporter’s part.
4. In this battle the NCAA holds all the cards and we have lost. The sanctions in and of themselves are bothersome but not lethal. The continuing controversy, the teams that refuse to play us because of the name, and the top notch recruits that are going elsewhere are what will doom the program.
And please, no whining about fairness. FSU gets to keep their name and we don’t. I agree, it isn’t fair, but that is tough. Didn’t your mother teach you life is not fair and to get over it somewhere along the line? FSU and Illinois made a deal and kept it; we made a deal and were not able to keep it.
Now if you want to discuss whether the deal was made knowing full well that SR would not cooperate – in other words it was a sham, I am willing to go there. All the evidence points to the fact that the deal was doomed from the moment it was signed.
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More Libertarian “get over it” propaganda from Flying”the Rand”Nurse.
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“NCAA can butt out until that happens and forget any sanctions against the school until the people that bear it’s name deem it offensive.”
They have deemed it offensive. See: Standing Rock Tribal Council for the past 20 years.
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My plea to the people of north dakota: pleas let this nickname go away! No one outside of nd cares and you guys are miking yourslefs look like fools over a nickname.
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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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[¶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.
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I only hope the Supremes will put and end to this madness starting this March 15th. It needs to be over so we can move on to making our university a better place of learning. Thats the main mission of UND and it’s gettting lost in the crazyness of this name thing.
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This ongoing fight over the nickname reminds me a bit of the GOP primary battle. With each step the people of the party (and for the nickname) the people of North Dakota have alienated anyone not associated with what is happening. People from the outside, often see these things as mean, devisive and in the end hurt the people themselves. What actually do you think will happen even if UND is able to keep the name? I doubt there will be any NCAA team wishing to play UND, because of the fear of demonstations and posibly worse happening on their campuses. These other schools may have some problems with the NCAA, but the NCAA is the best game in town and no one what to be left out in the cold with UND. Also, as with keeping step with the GOP the proponents of the name are now using religion in their efforts. It has become more silly. And a final thought. It was brought up that the Sioux tribes have a “property right” over the name and symbol. Their brief states there should be one member of the Sioux nation at the table. Just one? What a slam in the face of the Indian nations. Also, if this is the Sioux’s property rights and symbol, then they own it and UND and anyone else who used the property rights and character owes the Sioux nation a pile of money. Just think of all the places and uniforms and jerseys sold without compensation to the Sioux nations. I think the proponents of this name issue don’t have a clue of the ramifications if the name and character are kept with UND. Things are so deep and out of control. Somebody with some sense has to step forward.
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John, as far as the NCAA’s legitimacy the lawyer for the NFL Players Association is in the process of suing the NCAA over its economic abuse of 1000s student athletes over the years. The NCAA is using issues like the logo ban to divert attention from its actual agenda of exploitation of teenage athletes. BTW do you think it possible that any UND share of jersey/hat sales is in fact what allows UND to help finance the largest # of Native academic programs in the country.
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You guys reall eat this nickname —- up! Get a life, go have some drinks, walk your dog, say hello to a neighbor, have a quiet evening with y9ur family. Please do anything else than look up court settlements and nccaa agreements that your beloved und are in violation of.
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I can’t wait until your und mens hockey team has to forfiet round one of the ncaa tournament for their ncaa violations of continued use of an offensive and abusive nickname during regular season play. It will not happen this year, but I garuntee it will happen in the next 3 or 5 if this crap isn’t dropped.
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As far as I’m concerned, the name of the UND teams should be changed to the “Coyotes”.
True Native Americans will get the drift….
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FN, you make alot of references to the majority of the Sioux, yet the facts are the facts. The Sioux Nation were asked to vote on this matter, the matter was voted on, and the MAJORITY of the Sioux who felt the issue was important enough to vote on it, voted in favor of the nickname. SR tribal council denied a vote. The absence of a vote is not the same thing as a vote of ‘no’. It is indecisive, it means the don’t care one bit whether UND uses the nickname or not. Yes there are a few very vocal people who claim to speak for the majority of the Sioux, but that is not the same thing as allowing every member of the Sioux Nation to voice their opinion.
If SR was so against the nickname, then they should have had a vote on it to counter the SL vote. If they had voted and if the majority were truly against the nickname, I don’t think this issue would be dragged on as long as it has been. Personally, I would like to see every Sioux in the country have a chance to vote on this and at the end of it all, if the majority of the votes are against the nickname, I would have no problems with the nickname being dropped. I know, you have said countless times that the majority are against it, but when asked to give facts, you refer to “organizations”, “leaders”, “groups”, etc. I am only interested in the individual voices of the Sioux nation. Let them be heard and maybe this issue can be put to rest.
As it stands now, we have a fight because of the fact that the majority of the Sioux who voted were for the nickname, making it unclear as to the wishes of the whole. I know that this does not make a difference in the NCAA agreement, we already failed to meet our responsibilities, however, by not hearing the voices of the whole Sioux Nation, we are just prolonging this fight. Let every man and woman of the Sioux Nation be heard and let this issue come to an end.
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Published March 12, 2012, 04:45 AM
Donald Bruce Beard, Banning, Calif., letter: 1969 ceremony lacks legal standing
Face it, the 1969 ceremony is a Johnny-come-lately to the settlement agreement. Spirit Lake did not see the sacred ceremony as an adequate response in 2007, else why did it schedule a vote in 2009? That which already was sacred would hardly require a referendum.
By: Donald Bruce Beard ,
BANNING, Calif. — According to a recent Herald story, defenders told the North Dakota Supreme Court that a “1969 sacred Sioux ceremony (gave) the Fighting Sioux name to UND.” That constituted “a religious function preventing civil interference,” and as the story paraphrases, “it — along with Spirit Lake’s 2009 vote and council action favoring the nickname’s use — meets the NCAA’s requirement that UND obtain authorization from the two namesake tribes.”
But if the Spirit Lake Committee for Understanding and Respect truly believes the 1969 ceremony was sacred, that is all it should be arguing. Indeed, back in 2007, when the settlement agreement requiring nickname approval by both the Spirit Lake and Standing Rock Sioux tribes was reached, Spirit Lake representatives should have rushed forward and announced, “Fine. The 1969 ceremony, sacred as it was, settles everything. End of story. Finis.”
But face it, the 1969 ceremony is a Johnny-come-lately to the settlement agreement. Spirit Lake did not see the sacred ceremony as an adequate response in 2007, else why did it schedule a vote in 2009?
That which already was sacred would hardly require a referendum.
The Standing Rock Sioux also ignored the sacred ceremony. And, again by choice, their tribal council voted to oppose continued use of the Sioux nickname. Thus the two-tribe approval requirement was not met, and by North Dakota and NCAA’s mutual agreement, the Fighting Sioux nickname was to be retired by August 2010. Period.
Donald Bruce Beard
A native of Reynolds, N.D., Beard is a graduate of UND.
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You talk as though SL was denying the validity of its own 1969 ceremony. The ceremony was done by SR & therefore SL was saying to the court “there is a second tribe giving its OK so the NCAA stipulation is satisfied”. The SL vote is a separate requirement to satisfy the NCAA junta.
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Quite possibly, why the “Fighting Sioux” nickname just does not want to go away in North Dakota? To control other peoples or groups by North Dakota’s majority race, is not far off from their not too distant past…………If the shoe fits…..
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KU KLUX KLAN IN NORTH DAKOTA RECORDS
COLLECTION: OGL#598
DATES: 1916-1981
SIZE: .25 linear feet
INTRODUCTION
ACQUISITION: There have been several donations to the Ku Klux Klan in North Dakota Records:
Transferred from the North Dakota Pamphlet File in 1981: (Acc. #81-688 and #81-731)
Donation by Richard Beringer in 1995: (Acc.# 95-2015)
Donation by Jerry Newborg in 1998: (Acc.# 2005-2763)
ACCESS: Open for inspection under the rules and regulations of the Department of Special Collections.
HISTORICAL SKETCH
The first Imperial Wizard, Emperor of the Invisible Empire, Knights of the Ku Klux Klan was Nathan Bedford Forrest, a former Confederate general. Forrest, along with other Confederate Veterans, formed the Ku Klux Klan on December 15, 1865, at Pulaske, Tennessee, in order to prevent African-Americans from utilizing their rights as American citizens. In 1869, due to lack of control, Forrest disbanded the Klan but several other organizations continued on.
The release of D.W. Griffith’s 1915 film, The Birth of a Nation, ignited new interest in the organization. That same year, William J. Simmons and Samuel Green reformed the Ku Klux Klan in Stone Mountain, Georgia. By the beginning of the 1920s, Klan membership had grown to nearly 5 million members.
Interest soon spread to North Dakota, where Klan members staged rallies in Williston and Fargo. The largest Klan following in the state, however, was in the Grand Forks area. The Grand Forks Klan was known as the Ansax Club, whose members were anti-Catholics, Jews, and immigrants and strongly favored the public school system.
Unlike Klan membership in the south, the Ansax Club members consisted mainly of men from the business community. Officials within the organization included: 7 store owners, 3 lawyers, 3 bank officials, 1 doctor, 1 architect, and 1 clergyman. At their highest point of membership the Ansax Club had over 500 members.
Concerned about the growth of the Klan in North Dakota, the state legislature passed a law on January 10, 1923, banning all citizens over the age of 15 from wearing a mask or any other head covering in front of a public building, in order to conceal their identity. Thirteen days later, the Exalted Cyclops of the Ansax Club, Reverend Frederick Halsey Ambrose testified in front of state senators denouncing the new law.
Later that fall, Ambrose spoke in front of a large group of Klan members 21 miles east of Grand Forks. Ambrose spoke about his contempt for immigrants who he saw as pushing American citizens out of their homes. Ambrose also mentioned the need of its members to support the Klan and support the public school system, which he saw as the foundation and nurturing of American citizenship. He also stressed that each member should reach their goals by peace, not through violence.
Around the same time as the meeting, the Grand Forks Klan applied to the North Dakota Secretary of State office for incorporation as a fraternal society. Along with the application was a charter granted by the Imperial Wizard of the Ku Klux Klan, but due to insufficient funds the application did not go through and the Klan was never officially chartered.
In a 1924 school board election, two Klan supported candidates, Leslie Stinson and E.A. Arhart, won election over two candidates Ambrose deemed to be “unamericanized.” The Ansax club was at its most influential during this time but by the end of the 1920s membership began to decline. With the indictment of Indiana’s governor and mayor, both Klan supporters, officials began cracking down on Klan organizations throughout the Midwest. By the end of 1928, Klan activity had essentially ceased in Grand Forks.
Source: “The Ku Klux in Grand Forks, North Dakota” by William L. Harwood, South Dakota History. Fall 1971.
SCOPE AND CONTENT NOTE
The Ku Klux Klan in North Dakota Records consists of newspaper articles, Klan publications, and historical journal articles regarding Klan activity in North Dakota, primarily in Grand Forks during the 1920s. Also included is a photocopy of the application and charter for the Grand Forks Klan #1, for incorporation as a fraternal society. The charter was issued by The Imperial Wizard, Emperor of the Invisible Empire, Knights of the Ku Klux Klan on June 4, 1922, and officially recognized the Grand Forks Klan to perform all acts under Klan law. The charter was accepted by the Grand Forks Klan, also known as the Ansax Club, on September 21, 1923, but was never officially chartered due to insufficient funds. Some of these records were originally part of the North Dakota Pamphlet File.
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“The Grand Forks Klan was known as the Ansax Club, whose members were anti-Catholics, Jews, and immigrants and strongly favored the public school system.”
I would venture a guess that many Native Americans could be accused of being “anti-immigrant”….and for good reason…look at what the “immigrants” did to them. It was called Manifest Destiny.
Your attempt to portray anyone who disagrees with you as a “racist” is laughable….but sadly, a typical liberal smear tactic…and ultimately…
pathetic.
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