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Published February 17, 2012, 09:06 PM

ND Supreme Court Asked to Take Fighting Sioux Case

(AP) — North Dakota's Supreme Court should block a June referendum on the University of North Dakota's Fighting Sioux nickname because the law requiring the nickname to be used is unconstitutional, an assistant attorney general argued Friday.

By: Dale Wetzel, Associated Press

(AP) — North Dakota's Supreme Court should block a June referendum on the University of North Dakota's Fighting Sioux nickname because the law requiring the nickname to be used is unconstitutional, an assistant attorney general argued Friday.

Douglas Bahr, who is representing North Dakota's Board of Higher Education in the nickname dispute, asked the Supreme Court on Friday to hear the case without first referring it to a state district judge for scrutiny. The Supreme Court normally hears appeals from lower courts, and it is unusual for the court to consider a dispute that has not been reviewed elsewhere first.

Penny Miller, the Supreme Court's chief clerk, said Friday the justices would review the request.

The Board of Higher Education is suing Secretary of State Al Jaeger in the case. Jaeger is checking referendum petitions filed by nickname supporters and will decide next month whether they are sufficient to put the issue on the June 12 primary ballot.

Backers of the Fighting Sioux nickname want to reinstate permanently a state law that says the University of North Dakota must use its Fighting Sioux athletics nickname and a logo that shows an American Indian warrior's profile.

Gov. Jack Dalrymple signed the law last March. It took effect Aug. 1 but was repealed by the Legislature in November, after the law's critics said it had not accomplished its purpose of reversing NCAA opposition to the Fighting Sioux nickname, which the association considers derogatory toward American Indians.

After the Legislature rejected the pro-nickname law, the moniker's supporters circulated referendum petitions asking that its fate be decided in a statewide vote. They filed almost 17,000 signatures Feb. 7, which temporarily resurrected the law and triggered the reintroduction of NCAA sanctions.

The lawsuit asks the Supreme Court to rule the pro-nickname law unconstitutional and to block Jaeger from putting the referendum on the June ballot.

The North Dakota Constitution requires the Supreme Court to hear the case without first referring it to a lower court, Bahr asserted in a brief filed with the Supreme Court on Friday. The University of North Dakota "will suffer significant harm" if the nickname dispute is allowed to linger until June, he wrote.

Bahr also said the state constitution gives the Board of Higher Education expansive power over the state's system of public colleges and the Supreme Court affirmed that authority in an April 2010 ruling on a separate dispute over the nickname.

"Although the Legislature has limited authority to pass laws regarding organizing the work of the (higher education) institutions, it lacks authority to control and manage the administration of the institutions, including what nickname and logo an institution's sports teams will use," Bahr wrote. "The decision to keep or drop UND's nickname and logo falls within the exclusive authority of the board."

The nickname's backers claim the Board of Higher Education is disregarding public sentiment by attempting to derail a June vote.

"We only ask for the opportunity for our voice to be heard. We ask that all the people may vote on this important issue," nickname advocates said in a statement this week. "Understand that we do not wish any harm to come to UND or its students."

NCAA sanctions bar UND from hosting post-season tournaments, and its teams may not wear the logo or nickname on uniforms during post-season play. Other schools have been asked to avoid scheduling UND teams.

The attorney general normally represents North Dakota agencies, but because the lawsuit pits one state agency against another, Attorney General Wayne Stenehjem plans to appoint an outside attorney to represent Jaeger. The secretary of state said Friday he did not know yet who his attorney would be.


Copyright 2012 The Associated Press.

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