William Brotherton: Why We Filed Our Lawsuit to Stop the University of North Dakota Nickname Vote

I believe that by now most North Dakotans would agree that the University of North Dakota Nickname Vote has been a total debacle and an embarrassment to the flagship university of the state, and its graduates. I count myself as one of those graduates, class of 1980.

We all know the story. The NCAA declared that the Fighting Sioux name was hostile and abusive and had to go. The North Dakota attorney general’s office, on behalf of UND, filed suit against the NCAA and settled with a condition that agreement be reached with both the Standing Rock and Spirit Lake Sioux to allow the Fighting Sioux name to remain as the nickname for the University. This despite the fact that in 1969, both tribes gave the right to use the name in a “Sacred Pipe Ceremony”. Further, the NCAA, in a slap at North Dakota, allowed Florida State University to keep using the Seminole name with only the agreement of the Florida Seminole tribe. The Oklahoma Seminoles were disregarded.

For three years now, UND has been playing sports as just North Dakota or UND. Controversy died down. That is, until, the president of UND, Robert Kelley, arbitrarily determined that it would be best to remove UND/North Dakota as an option to be voted on in the so-called “Nickname Vote”.

That decision was the primary impetus to file suit against the University of North Dakota.

There were, of course, many other reasons for the lawsuit. The reasons are illustrated best by the words of UND’s attorneys at the hearing where the Plaintiffs requested a temporary restraining order to stop the Nickname Vote. The three attorneys representing UND, from the Attorney General’s office, told the Court that the vote really didn’t mean anything and that it was just a “feeling out process”.

So is this “feeling out process” just a great big expensive survey, a finger sticking up into the wind? It would sure seem so, especially since the University has declared that there may now be a third additional vote and voter turnout is a dismal 25%.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#ffffff” txt_color=”#000000″]The primary purpose of the lawsuit was to stop the Nickname Vote in order to allow more time to get UND/North Dakota back on the ballot, expand the stakeholder group, and inject some dignity into the process. It was a simple enough goal. And it was a goal that I believed the majority of North Dakotans wanted…[/mks_pullquote]

In the complaint against UND, the Plaintiffs alleged that the Nickname Vote has been an unauthorized and overreaching action by the president of UND and that the power to change the name really belongs to the North Dakota Legislature. Mr. Kelley, by his unilateral actions that have been fully described in the North Dakota media, would appear to be the unelected nickname czar of North Dakota. Mr. Kelley pledged a fair and “inclusive” Nickname Vote; however, the vote has been anything but that, in that a primary stakeholder group, the Sioux of North Dakota, have not been included.

One of the Plaintiffs, Lavonne Alberts, is an enrolled member of the Spirit Lake Sioux. She was present in 1969 when both the Standing Rock and Spirit Lake Sioux presented UND the right to use the Fighting Sioux name in the “Sacred Pipe Ceremony”. The president of UND at the time, George Starcher, was even named “Yankton Chief” by the Sioux in a separate “Warbonnet Ceremony”. These ceremonies are important traditions of the Sioux people.

In its lawsuit against the NCAA, the University stated that the University “received permission to use the Fighting Sioux name from the Sioux…. and that the name and logo are valuable commercial property.”

UND has now attempted to disown those statements, but they’re part of the public record.

For the Nickname Vote, UND created what it called a “stakeholder” group. A critical component of the “stakeholder” group was anyone defined as a “donor”. Even though the Sioux gave their own name to the University, they were deliberately left out of the “stakeholder” group, despite the fact that they gave the University one of its greatest gifts. So much for the “inclusive” process claimed by UND.

Besides attempting to stop the Nickname Vote in order to allow UND/North Dakota to be put back on the ballot, our lawsuit sought a declaratory judgment from the Court ordering that the Sioux be included as part of any stakeholder group. That is one of the key claims made in the lawsuit, including violations of the Open Meetings Act, that Plaintiffs were denied equal protection under the law through the North Dakota Constitution, and that there was a breach of contract between the Sioux and UND.

The Plaintiffs, who besides Spirit Lake member Lavonne Alberts, include North Dakota State Representative Rich Becker and former Fighting Sioux/Pittsburgh Penguin hockey great Bill Le Caine, also a Sioux tribal member, bravely took on UND and the state. They had taken Mr. Kelley at his word, that the nickname vote would be the final determination of the nickname to replace the Fighting Sioux name. Yet, that wasn’t the case, as revealed when UND attorneys said that all of this really didn’t mean anything.

It would seem that this “feeling out process” is more of a game than something serious. The Fighting Sioux name has been a strong tradition at the University of North Dakota since 1930, and this ludicrous process to determine the name’s replacement not only insults UND supporters, but denigrates the Sioux, who bestowed the greatest gift of all to UND.

Why did I, a Texas attorney, get involved?

While I’m not a Midwest native, when my family and I moved to Grand Forks in 1977 from Georgia, we embraced the North Dakota way of life. We bought an 1899 home in Riverside Park and restored it. I served as chairman of the Riverside Park Community Association and fought to save the Riverside pool after the flood in 1978. I served as a member of the Grand Forks Community Development Commission and contemplated a run for the legislature. But most importantly, I finished my undergraduate degree at the University of North Dakota.

We planned to stay in North Dakota, even to the point that when my employer International Co-Op (now JR Simplot) shut down, I took a job with the Burlington Northern Railroad as a brakeman in order to stay in Grand Forks. And you don’t know what cold is until you’re hanging on the side of a boxcar in 35 below in the middle of the night with a strong wind switching freight cars in Walhalla! Only when I was promoted to trainmaster and transferred to Denver did we reluctantly leave our beloved adopted state of North Dakota.

But wherever I went, I was always proud to tell people that I was a graduate of the University of North Dakota. Being a UND graduate kept me connected with the state and its people, a place where if you pull over by the side of the road, six cars will immediately stop to check and see if you need help.

That’s why I was very surprised with what happened with our lawsuit to stop the Nickname Vote. The primary purpose of the lawsuit was to stop the Nickname Vote in order to allow more time to get UND/North Dakota back on the ballot, expand the stakeholder group, and inject some dignity into the process. It was a simple enough goal. And it was a goal that I believed the majority of North Dakotans wanted – especially after talking to a considerable number of folks in the state, in person, by telephone and through that wonderful modern invention, social media.

What happened to the lawsuit? Every judge in Grand Forks County recused himself or herself. The North Dakota Supreme Court then assigned the case to a Fargo judge, who denied our request for a temporary restraining order. The temporary restraining order was denied because the attorney general’s office said that the vote really didn’t mean anything, that it was the famous “feeling out process”.

The lawsuit was dismissed. But that doesn’t mean we’re going to quit!

The University of North Dakota still has a chance to salvage some of its reputation. It claims to retain the rights to use the Fighting Sioux name and logo. It appears to be bracing for a fight with at least one company who is producing merchandise using the Fighting Sioux name and logo. That company argues that UND has abandoned the name, which would appear to be a legitimate argument.

Why not do the right thing UND? Return the rights to use the Fighting Sioux name and logo to the Sioux themselves. You’ve acknowledged the gift and agreed that the name and logo are a valuable commodity. A valuable commodity shouldn’t be squandered. Give the Fighting Sioux name and logo back.

And as far as the embarrassing Nickname Vote, abate it. Let’s all take a deep breath and reevaluate together who should be in the stakeholder group. The Sioux should certainly be a part of voting on any new nickname that will replace their own name. And any nickname vote should absolutely include the option of UND/North Dakota. That’s just being North Dakota proud.