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ND court won't block Fighting Sioux election

BISMARCK, N.D. — North Dakota's Supreme Court refused Tuesday to block a June election on whether the University of North Dakota should keep its Fighting Sioux nickname, despite worries that NCAA sanctions will hurt the school.

"I believe it is improper, under the circumstances, to take this matter from the voters of North Dakota," Justice Carol Ronning Kapsner wrote in one of three separate opinions the Supreme Court issued on the case.

North Dakota's Board of Higher Education contends the Fighting Sioux law violates the board's constitutional authority to oversee the state's public college system. The board had asked the Supreme Court to invalidate the law and stop the June 12 election.

The NCAA considers the Fighting Sioux nickname offensive, and will penalize the school as long as it is kept.

The association has barred UND from hosting any postseason tournaments as long as its teams are known as the Fighting Sioux, and its teams may not use the name or an American Indian profile logo on its uniforms in post-season play.

The Fighting Sioux law says UND's teams must be known by that nickname, and that the university may not change the name or its logo.

The North Dakota Legislature first approved the measure in March 2011, only to repeal it the following November when the NCAA said it would not lift its nickname-related sanctions.

The repeal vote galvanized nickname supporters, who gathered more than 16,000 petition signatures to revive the law and put it on the June 12 primary ballot. It is in effect today.

In order to declare the law unconstitutional, four of the Supreme Court's five justices would have had to agree that it was.

The court's split decision Tuesday indicates Chief Justice Gerald VandeWalle and Justices Dale Sandstrom and Mary Muehlen Maring were willing to decide before the election whether the law was constitutional. However, Kapsner and Justice Daniel Crothers were not.

Kapsner said the question could wait until the election. If voters support the Fighting Sioux law, the Supreme Court could consider the question again, she wrote. If it is repealed, the court will have nothing to rule on.

The Board of Higher Education, by failing to challenge the law when it was first approved by the Legislature, showed it did not believe the matter needed quick resolution, Kapsner wrote. The board approved its lawsuit against the Fighting Sioux law in February, after the name's supporters filed petitions to put the issue to a statewide vote.

"It is clear that the constitutionality of (the Fighting Sioux law), the statute asserted to be a problem, is not a matter of urgency," Kapsner wrote.

Crothers said the Supreme Court's intervention "at this time would be unprecedented."

"Intervention now also would be ill-advised, because of the important competing and conflicting interests between the board's and the Legislature's separation of constitutional powers on the one hand, and the right of the people to refer legislation on the other," Crothers wrote.