AG declines Request for Formal Opinion on Sioux Nickname

Attorney General Wayne Stenehjem has declined — for now — a request from 10 state lawmakers that he issue a formal opinion on the constitutionality of the Sioux nickname law adopted by the Legislature in March.

By: Chuck Haga, Grand Forks Herald

Attorney General Wayne Stenehjem has declined — for now — a request from 10 state lawmakers that he issue a formal opinion on the constitutionality of the Sioux nickname law adopted by the Legislature in March.

In a letter to Rep. Lonny Winrich, D-Grand Forks, Stenehjem said that because the State Board of Higher Education is weighing legal action against the law, a formal opinion from his office now would be premature.

“It is my understanding that the president of the State Board of Higher Education recently asked board members to consider, for the board’s next meeting, whether litigation is appropriate,” Stenehjem wrote in a letter dated Thursday. “As a result, it is reasonably foreseeable that I will be asked to consult with the board regarding its legal options, either at the board’s next meeting or a subsequent meeting.

“Since it has been the longstanding policy of this office not to issue an opinion on a matter when litigation is pending or likely,” he said, “I must respectfully decline to address your questions at this time.”

Stenehjem sent copies of his response to the nine other lawmakers who had signed Winrich’s request, including two other Grand Forks Democrats: Rep. Eliot Glassheim and Sen. Connie Triplett.

One Republican, Fargo Rep. Kathy Hawken, was among the signers of Winrich’s letter.

The nickname law, signed March 15 by Gov. Jack Dalrymple, requires UND to retain its Fighting Sioux nickname and logo despite a legal agreement between the university and the NCAA, which has threatened sanctions if the Indian imagery isn’t dropped. The 2007 agreement had given UND three years to obtain the blessing of two namesake tribes or discontinue use of the name.

The school, under direction of the state board, had been about a year into a transition process that was to end with the nickname’s retirement by Aug. 15. After the law was adopted, the board told UND to halt the transition.

Board President Jon Backes asked members at a board meeting May 9 to think about ways to resolve the situation, which leaves UND facing a renewed threat of sanctions if it complies with the state law.

Backes has asked attorneys in the North Dakota University System to review whether the law infringes on the board’s constitutional authority to manage UND and the other institutions under its control, and he said last week that he also would like to hear from Stenehjem.

“We should have a discussion about whether we want to have the courts define what that constitutional authority (of the board) means,” Backes told the Associated Press last week. “If the language in the constitution doesn’t mean that the board owns that issue, and has authority over it, I’m not quite sure what it means.”

The board is scheduled to meet June 16 at Minot State University.

Grant Shaft, a Grand Forks attorney who will succeed Backes as board president July 1, said he expects Stenehjem will attend the June meeting, but “only for a briefing and consultation” regarding the nickname law.

“I certainly don’t think there would be any action taken by the board” at that session, Shaft said, and he doubts any legal action would be taken before the new law takes effect. But board members “don’t want efforts (to resolve the situation) to languish over the summer,” he said.

Winrich said it’s important to resolve questions about the nickname’s status quickly.

“I believe the bill we passed is unconstitutional,” the retired UND computer science professor said.

In addition to undercutting the state board’s authority, “there’s also a constitutional issue because the legislation tries to overturn a court decision,” the 2007 legal settlement agreed to by UND and the NCAA, he said.

“I think it’s hurting the university already in terms of education,” Winrich said, and continuing to “defy the NCAA” eventually will hurt UND athletes and athletic programs.

Winrich said he believes the board “should go ahead and assume it has the constitutional authority to run the institutions the way it sees fit, and let the legislature sue.”