Like the renegade Native America warrior of old-time western movies who refuses to concede to the inevitable, defenders of the University of North Dakota Fighting Sioux nickname and logo refuse to give up even in the face of defeat in what was billed as a last-ditch challenge before the North Dakota Supreme Court. [A summary of previous events in this saga along with extensive reader commentary can be found here and here.]

On April 8, 2010, the North Dakota Supreme Court dismissed a challenge to the North Dakota Board of Higher Education’s ruling that the University of North Dakota must abandon the use of the Fighting Sioux name and logo for its athletic teams.

Interestingly, the challenge was filed by a group of Spirit Lake Sioux who claimed that they would be injured if the university dropped the Fighting Sioux nickname. They also insisted that the Board was obligated to wait to issue a final ruling until after the November 30, 2010, deadline for tribal approval negotiated by North Dakota Attorney General Wayne Stenehjem with the National Collegiate Athletic Association in 2007. The NCAA had previously taken the position that the nickname and logo was offensive and inappropriate and had threatened to impose sanctions unless specifically authorized by both Sioux tribes (as has been done in the case of the Florida State Seminoles, the University of Utah Utes, and the Central Michigan Chippewas).

The court ruled that the challenge was without merit and that the Board was legally free to terminate the use of the Fighting Sioux name and logo at a date earlier than that negotiated with the NCAA. Later the same day, at the regularly scheduled meeting of the State Board of Higher Education, a motion by board member Claus Lembke to repeal the earlier ruling eliminating the nickname died when none of his four colleagues on the Board were willing to second his motion.

At this point, many newspapers reported that the Fighting Sioux would soon end up in the same burial ground as the Flickertail, the original University of North Dakota nickname. The Board of Higher Education announced that the university could use the current nickname and logo through the end of the 2010-11 academic year, but after that both were to be retired. After April 8, the University constituted a committee to come up with a new nickname, and shortly warned its apparel licensees that no more Fighting Sioux clothing could be produced after September 30, 2010.

But, as before, the Fighting Sioux supporters were not willing to simply give up. A week after the decision of the North Dakota Supreme Court ended their legal challenge, the Native American plaintiffs in the suit against the Board of Higher Education appealed to the state’s governor to intervene on their behalf. Two nights later, several hundred people marched peacefully on the University of North Dakota campus in Grand Forks to protest the decision to eliminate the nickname. Speakers from both of the state’s Sioux tribes spoke at the rally in favor of keeping the controversial name.

To the surprise of many, North Dakota Governor John Hoeven did intervene on behalf the advocates of the current nickname. Shortly after the April 17 protest march, he told Board of Higher Education Chancellor Bill Goetz that the board should reconsider its action, if the Standing Rock Sioux should endorse the continued use of the nickname by November 30, 2010.

Since October of 2007, the fate of the Fighting Sioux nickname has largely rested with the state’s two Sioux tribes, the Spirit Lake and the Standing Rock. That month, Attorney General Stenhejem reached a settlement with the NCAA that provided that the organization would accept the continued use of the Fighting Sioux nickname if approval could be secured from both of the state’s Sioux tribes within three years. (Somewhere along the line, the deadline was extended from October to November 2010.) The Spring Lake Sioux approved the use of the nickname by a vote of better than 2 to 1 in a tribal referendum in 2009, but the other tribe, the Standing Rock, has refused to approve the use of the nickname or allow the issue to be scheduled for a tribal vote.

However, Standing Rock supporters of the nickname have been trying for several months to force their anti-nickname leaders to schedule a tribal referendum. On April 6, two days before the Supreme Court decision, Standing Rock Sioux member Archie Fool Bear delivered a petition to Tribal Chairman Charles Murphy calling for a tribal referendum on the issue of the nickname. Bear’s petition purportedly contained the names of 1,004 members of the Standing Rock tribe.

Although Murphy was elected Chairman in 2009 after campaigning as an advocate of retaining the nickname, he has been unable to persuade the tribal council to abandon its anti-mascot position, and he was unable to persuade the council to act on the petition before the Board of Higher Education meeting on April 8. (The Standing Rock Constitution contains no provisions for referendum of the sort advocated by Archie Fool Bear and his supporters, but such referendums have been held in the past.)

The appearance of significant support for the nickname among the rank-and-file of the Standing Rock tribe apparently explains Governor Hoeven’s conditional endorsement of the continued use of the Fighting Sioux name. Attorney General Stenehjem, who opposed the decision of the Board of Higher Education to make a decision prior to the November 30 deadline, has also endorsed the idea that the issue should be reopened if the Standing Rock subsequently approve the use of the nickname.

Although Chairman Taylor initially indicated that the issue would be addressed at the May 4 meeting of the Standing Rock Tribal Council, to date no action has been taken. A number of Standing Rock Tribal Council members, including Avis Little Eagle and Doug Crow Ghost, have spoken out forcefully against the scheduling of any sort of referendum between now and November 30. A death in the family of Chairman Taylor initially delayed action, but now Taylor, whose support for the continued use of the nickname seems to be in question, has announced that no action will be taken until the 1,004 signatures on the petition are “certified.” Because tribal laws make no provision for public referendums, the tribe has no rules that explain how signatures are to be certified. Archie Fool Bear, the organized of the petition campaign, has vowed not to let the issue die until a referendum is scheduled.

Although University of North Dakota President Robert Kelley had already announced plans to phase out the Fighting Sioux nickname and to replace the Indian on horseback with an interlocking N&D logo, Board of Higher Education president Richie Smith announced on May 9 that the Board would likely revisit the name issue if the Standing Rock do approve the use of the name before November 30, and are willing to sign a thirty-year agreement authorizing the university’s use of the Sioux nickname. (The thirty-year requirement was added some time ago, and it appears that the Spirit Lake Sioux are prepared to sign such an agreement.)

Die-hard white supporters of the Fighting Sioux nickname also show no signs of giving up. On May 10, The Crookston (N.D.) Daily Times quoted Jody Hodgson, the general manager of the Ralph Englestad Arena (where the powerhouse University of North Dakota men’s ice hockey team plays its home games and whose every nook and cranny features inlaid Sioux warrior images) to that effect. According to Hodgson, “Anyone who thinks it [the nickname] issue is a dead issue is fooling themselves at this point. It’s not a dead issue.”

It seems likely that the Fighting Sioux issue is going to be with us, at least for another six months, and possibly longer than that.