Legal Action May Follow NCAA’s Banning of Fighting Sioux Name in Post-Season

Oct 21, 2005

The NCAA announced last month that it was denying the University of North Dakota’s appeal to retain its “Fighting Sioux” name.
However, UND President Charles Kupchella is fighting back, promising an appeal to the NCAA’s executive committee and legal action, if necessary.
“Even those here opposed to the use of the nickname on campus recognize that UND offers perhaps the best opportunity for many American Indian students to get an education,” Kupchella told the Associated Press. “I would also note that the schools exempted thus far have been exempted on the basis of a ‘special relationship’ with American Indian tribes, yet our proportionate number of American Indian students and the number of substantive programs in support of American Indian students, exceeds that of all of the exempted schools combined.”
Senior Vice-President for Governance and Membership Bernard Franklin was unmoved. In a statement, he said that given “the particular circumstances regarding the University of North Dakota, the NCAA staff review committee noted the university did not have the support of the three federally recognized Sioux tribes of North Dakota. One primary, but not exclusive, consideration in the review process is documentation that a ‘namesake’ tribe has formally approved the use of the mascot, name and imagery by the institution.”
He added that “Although the University of North Dakota maintained that its logo and nickname are used with consummate respect, the position of the namesake tribes and those affected by the hostile or abusive environment that the nickname and logo create take precedence. The decision of a namesake sovereign tribe, regarding when and how its name and imagery can be used, must be respected even when others may not agree.”
Matt Mitten, a Marquette University School of Law professor and the director of the National Sports Law Institute, told Legal Issues in College Athletics that the NCAA has staked out its position should UND, or any of the other schools, subject to the regulations mount a legal challenge.
Mitten pointed out that those schools that have obtained tribal approval have gone on to secure an appeal. “Tribe approval is a distinction between the cases,” said Mitten. “It’s a difference.”
That kind of consistent logic would contradict a plaintiff’s argument that the NCAA has been “arbitrary and capricious” in its decision-making process.
Without that finding, it is unlikely a court would “substitute its judgment for the NCAA’s judgment. Because the NCAA is a private organization, the courts will provide a lot of deference to it in making rules, interpreting them and applying them to their members.”
However, the NCAA did say it would allow the university to host the Men’s Division I Ice Hockey Championship, West regional, on March 24-25, 2006, at Ralph Engelstad Arena without altering its current contract.
“This decision was made because it is not reasonable to cover up or remove all of the Native American imagery in the arena, and the restriction was adopted by the Executive Committee after the contract was awarded to the university. The University of North Dakota will be restricted from hosting future championships in that arena.”


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