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North Dakota Higher Education Board to oppose Sioux bill

The Fighting Sioux nickname bill making its way through the North Dakota Legislature would accomplish nothing more than put the University of North Dakota back in the difficult position it was in when it first tangled with the NCAA, a member of the state Board of Higher Education said Tuesday.

"The bill just doesn't make sense," said Duaine Espegard, a retired Grand Forks banker and board member.

The board decided Tuesday to oppose the bill, which passed the House last month and is headed for a hearing before the Senate Education Committee.

The bill, introduced by House Majority Leader Al Carlson, R-Fargo, would require UND to keep the nickname despite the board's directive last April to drop it. The university has formed committees that have been working for months on the transition.

The bill also suggests that Attorney General Wayne Stenehjem consider suing the NCAA if the association attempts to penalize UND for retaining the Fighting Sioux name and logo.

Board President Jon Backes said that could put UND and the state in an untenable position, fighting a legal battle they could not win but that could cost more than $1 million.

Backes and board member Grant Shaft, a Grand Forks attorney, testified on the bill when it was heard in the House committee, providing background on the long nickname fight. But the board and its members stayed neutral on the bill itself at the time.

"We didn't come out and oppose it to start with because frankly we thought our job was over," Espegard said.

"We provided every bit of information we could and tried to educate the committee as best we could. But they passed the bill, and the bill has problems."

Shaft is in Israel on a family vacation and did not participate in the board meeting Tuesday at Bismarck State College, but he offered comments via e-mail.

"We know a lawsuit will not succeed and that Standing Rock has never wavered in their opposition," Shaft said. "Given these indisputable facts, even the most ardent Fighting Sioux supporters must conclude that the Legislature's action is without merit and will only result in UND being placed back on NCAA probation, which, in the end, is detrimental to UND athletics."

Espegard participated in the board session via phone.

"There is no one on the board who is opposed to the nickname that I know of," he said. "... But the lawsuit is troublesome. It says we are to sue the NCAA, but we can't do that."

Several years ago, the NCAA adopted rules aimed at getting member schools to drop Native American mascots, nicknames and other imagery. Some schools appealed, and a few were able to retain their nicknames by winning authorization from namesake tribes.

UND's appeals were denied, and the university sued. In a 2007 settlement negotiated by Stenehjem, the state board was given three years to secure approval from the Spirit Lake and Standing Rock Sioux tribes.

Spirit Lake voted to authorize use of the name, but the Standing Rock Tribal Council and leadership repeatedly said no and efforts to arrange a reservation-wide vote failed.

"Even if we did sue, we would be back to where the university was four years ago," facing sanctions, Espegard said.

As a result of the 2007 settlement agreement, the initial lawsuit was settled "with prejudice," which Shaft and others have said complicates bringing a new suit on similar grounds.

"It would be frivolous" to sue the NCAA again over the nickname issue, Espegard said. "We have three lawyers on the board plus the attorney general who say the lawsuit has little or no chance of prevailing."

The nickname bill may complicate UND's efforts to advance to Division I, he said. "You need NCAA approval to go to Division I, which may be tough to get when we just told them (with a new lawsuit) to stick it."

Board officials will again testify on the nickname bill when it comes before the Senate Education Committee, Espegard said. No hearing date has been set, but the Senate Republican leader has said he believes the bill - which passed the House handily - could also pass in the Senate.

The board's testimony "will be the same as it was in the House, only this time we'll say we're opposed and here's why," Espegard said.

Haga writes for the Grand Forks Herald.