Saying it uses its “Fighting Sioux” nickname and logo “with consummate respect,” the University of North Dakota has brought a high-stakes challenge to NCAA restrictions on the display of Native American imagery.

In an injunctive relief action filed in Grand Forks County District Court last week, the school seeks to “prevent tremendous consequences to UND and its athletic and academic programs by immediate application of an absurd, unauthorized and unlawful Policy of the NCAA.”

Similar controversies have engulfed pro sports teams from the Washington Redskins to the Cleveland Indians. "We are planning on aggressively defending our right and our responsibility, quite frankly, to conduct our own NCAA championships in an environment free of racial stereotyping," an NCAA spokesman said.

The policy, adopted last year, prohibits colleges and universities from displaying “mascots, nicknames or images deemed hostile or abusive in terms of race, ethnicity or national origin” at a post-season competition. Schools subject to the policy would also be barred from hosting post-season championship games.

The NCAA lists UND as a racial stereotyper because of its “use of Native American imagery.” The “Fighting Sioux” name and logo has identified the school for more than 70 years.

NCAA officials have failed to demonstrate that “UND’s actual use of Native American imagery on its campus is in fact hostile or abusive or that it creates a hostile or abusive environment,” the school argues in its motion for a preliminary injunction.

It's far from settled in case law precisely how the “hostile or abusive” standard applies to an educational institution's nickname or logo. But UND claims the NCAA cannot meet that standard because, among other things, the “Fighting Sioux” logo is “a historically accurate depiction of a Sioux warrior designed by a respected Native American artist.”

“UND uses Native American imagery with consummate respect,” the motion says, noting that the school does not encourage or permit such “disrespectful actions” as “tomahawk chops.”

An unpublished case involving similar imagery may help the school prevail over the forces of political correctness. In Munson v. State Superintendent of Public Instruction, 577 N.W.2d 387 (1998), the Wisconsin Court of Appeals said a reasonable person would not find that a high school's Indian logo “depicts such a negative stereotype that it is detrimental or harmful to a protected class or person.”

Last month, moreover, a 2-1 majority of the Illinois Court of Appeals found nothing objectively discriminatory in a dance that the University of Illinois' Chief Illiniwek mascot performs at halftime of football games. Illinois Native American Bar Ass’n v. University of Illinois

Justice Shelvin Hall, the only ethnic minority on the panel, wrote in a dissent that

In light of the number of prominent educational institutions that have voluntarily discontinued the use of Native American nicknames, symbols, and mascots ... I cannot conclude that a reasonable person in plaintiffs' position would not find that the University's continued official sanctioning of Chief Illiniwek as its sports mascot violates the civil rights of Native American students by creating and contributing to an objectively hostile educational environment.

Unlike Chief Illiniwek, however, no “Fighting Sioux” mascot performs any dance at UND sporting events.

By Matthew Heller
10/10/06