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Published February 24, 2012, 06:54 PM

UPDATE: Lawmakers Hire Lawyer For Fighting Sioux Dispute

BISMARCK, N.D. (AP) — Legislative leaders voted Friday to hire an attorney to attempt to intervene in a lawsuit over the University of North Dakota's Fighting Sioux nickname.

By: Dale Wetzel, Associated Press

BISMARCK, N.D. (AP) — Legislative leaders voted Friday to hire an attorney to attempt to intervene in a lawsuit over the University of North Dakota's Fighting Sioux nickname.

The Legislative Management Committee voted 12-5 to hire Bismarck attorney Pat Durick to defend the Legislature's interests in the case. Durick declined comment.

The committee includes the Legislature's Democratic and Republican floor leaders, and handles the Legislature's business when lawmakers are not in session.

Committee chairman and House majority leader Rep. Al Carlson, R-Fargo, argued the dispute risks curtailing the Legislature's power over North Dakota's public colleges.

"This is a big deal," Carlson said. "If we sit on the sidelines, I think it is a huge mistake."

The Board of Higher Education is suing Secretary of State Al Jaeger in an attempt to block a June vote on a law that requires the university's teams to be known as the Fighting Sioux. The law also requires the university to keep a logo that shows the profile of an American Indian warrior.

The NCAA considers the nickname and logo offensive to American Indians, and as long as they're used, the university faces sanctions. UND cannot host postseason tournaments, nor can its teams wear uniforms that feature the nickname or logo during postseason play.

The higher education board has asked the North Dakota Supreme Court to hear the lawsuit directly, without assigning it first to a lower court for review. The board asserts that the law infringes on its constitutional power to regulate North Dakota's university system.

The board also wants the court to rule that Jaeger can't put the law to a public vote. Fighting Sioux nickname supporters have turned in referendum petitions with almost 17,000 signatures to demand a vote.

John Bjornson, a staff attorney for the Legislative Council, which is the Legislature's research arm, said the Supreme Court was likely to allow the Legislature to intervene in the case. It has already allowed the group that submitted the referendum petitions to do so, Bjornson said. The high court, which initially set a March 2 deadline for filings in the case, has extended the deadline to March 6.

Carlson said the board's legal arguments contend that the Legislature controls the finances of the university system's 11 public colleges, but that the board's other regulatory powers over the system are almost unfettered. He questioned whether the board's logic would also apply to legislative proposals that would seek to restrict tuition increases and authorize building projects.

"This is a very far-reaching case," Carlson said. "This is a very serious deal."

Five of the six Democrats on the Republican-controlled Legislative Management Committee voted against hiring an attorney; the exception was House Democrat leader Jerry Kelsh of Fullerton. Rep. Shirley Meyer, D-Dickinson, requested an analysis of the cost of the Fighting Sioux law.

Carlson originally sponsored the law, which lawmakers approved last March. Supporters argued the law might persuade the NCAA to renounce its planned sanctions. But when the NCAA refused to budge, lawmakers relented and voted in November to repeal the legislation.

The repeal galvanized supporters of the Fighting Sioux nickname, and they circulated petitions to force a June vote on whether to reinstate the law. Advocates are also circulating petitions to put a constitutional amendment on the state ballot to permanently brand UND sports teams with the nickname.

Democrats think Carlson should shoulder much of the blame for the nickname imbroglio, which contributed to their opposition of hiring an attorney.

In an interview Friday, Meyer said taxpayers will bear the cost to hire lawyers for Jaeger, the Board of Higher Education and the Legislature itself.

"I'm getting to the place of, what is this costing our taxpayers? That is the bottom line," Meyer said. "It's created this whole can of worms."

Rep. Chuck Damschen, R-Hampden, said he did not want the Legislature to advocate blocking a public vote on the law, a sentiment Carlson said he shared.

"The issue should be voted on first, and if it's passed, if someone wants to challenge the constitutionality of it, then that would be the time to do that — but not to do it to deny the people the vote," Damschen said.

Sen. David Hogue, R-Minot, who is an attorney, said the Supreme Court may conclude the dispute isn't ready for its review.

"Until the voters vote on it," Hogue said, "we don't know whether we have a law to construe or not."


Copyright 2012 The Associated Press.

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