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ND Supreme Court won't block Fighting Sioux name election

April 4, 2012

BISMARCK, N.D. (AP) — North Dakota's Supreme Court said Tuesday that voters should decide whether to keep the University of North Dakota's Fighting Sioux nickname before the courts judge whether a pro-nickname law violates the state constitution.

The court's split ruling clears the way for North Dakotans to weigh in on Measure 4, a referendum about whether UND must continue using the nickname and a separate American Indian warrior profile logo.

The measure goes to a statewide vote June 12. If Fighting Sioux supporters lose, UND intends to drop the nickname and logo.

"I believe it is improper, under the circumstances, to take this matter from the voters of North Dakota," Justice Carol Ronning Kapsner wrote in one of three separate opinions the Supreme Court issued on the case.

North Dakota's Board of Higher Education contends the Fighting Sioux law violates its constitutional power to oversee the state's public college system. The board had asked the Supreme Court to invalidate the law and remove Measure 4 from the ballot.

The NCAA considers the Fighting Sioux nickname offensive, and will penalize the school as long as it is kept.

The association has barred UND from hosting any postseason tournaments as long as its teams are known as the Fighting Sioux, and its teams may not use the name or an American Indian profile logo on its uniforms in post-season play.

The Fighting Sioux law says UND's teams must be known by that nickname, and that the university may not change the name or its logo.

The North Dakota Legislature first approved the measure in March 2011, only to repeal it the following November when the NCAA said it would not lift its nickname-related sanctions.

The repeal vote galvanized nickname supporters, who gathered more than 16,000 petition signatures to revive the law and put it on the June 12 primary ballot. It is in effect today.

Robert Kelley, president of the University of North Dakota, said in a statement Tuesday that the Supreme Court's ruling underscores the importance of the June referendum.

"If this referendum passes, there will be long-term negative consequences for the University of North Dakota and UND's athletic programs," Kelley said.

Should the law stand, Kelley said in his statement, UND "will remain under NCAA sanctions, and ... (the pro-nickname law) will compromise recruitment, scheduling and UND's relationship with other collegiate athletics programs."

Four of the North Dakota Supreme Court's five justices would have had to agree the law was unconstitutional before it could be thrown out.

The court's split decision Tuesday showed Chief Justice Gerald VandeWalle and Justices Dale Sandstrom and Mary Muehlen Maring were willing to decide before the election whether the law was constitutional. However, Kapsner and Justice Daniel Crothers did not want to take that step.

Kapsner said the question could wait until the election. If voters support the Fighting Sioux law, the Supreme Court could consider the question again, she wrote. If it is repealed, the court will have nothing to rule on.

The Board of Higher Education, by failing to challenge the law when it was first approved by the Legislature, showed it did not believe the matter needed quick resolution, Kapsner wrote. The board approved its lawsuit against the Fighting Sioux law in February, after the name's supporters filed petitions to put the issue to a statewide vote.

"It is clear that the constitutionality of (the Fighting Sioux law), the statute asserted to be a problem, is not a matter of urgency," Kapsner wrote.

Crothers said the Supreme Court's intervention "at this time would be unprecedented."

"Intervention now also would be ill-advised, because of the important competing and conflicting interests between the board's and the Legislature's separation of constitutional powers on the one hand, and the right of the people to refer legislation on the other," Crothers wrote.

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