–Dan Kelly, Attorney

Last week, the North Dakota Supreme Court issued an opinion in a suit relating to the University of North Dakota’s use of the name FIGHTING SIOUX and related imagery.  This opinion was the latest installment in a long-running matter, the history of which I will not get into in detail–the opinion recites most of the relevant facts.  In light of the decision, the North Dakota Board of Higher Education is moving forward with plans to retire the Fighting Sioux nickname and related imagery by August of this year.

As Steve’s previous posts on the Redskins case and the Chief Wahoo logo have demonstrated, there can be good public policy reasons for prohibiting the use of trademarks that are or can be perceived as offensive.  Interestingly, one of the important facts that distinguishes the Sioux case from the Redskins case, though, is that the push to change the Fighting Sioux nickname and imagery is coming from the NCAA and the North Dakota Board of Higher Education.  The two Sioux tribes in North Dakota, the Spirit Lake Tribe and the Standing Rock Sioux Tribe, by all appearances actually support the University of North Dakota’s use of the nickname and imagery.  This is ironic.

While understandably well intended, I have reservations about the NCAA’s “Native American Mascot Policy” (a dated list is here).  I am not alone.  The NCAA policy has met resistance at many of the colleges affected, including Florida State and the University of Illinois.  The NCAA’s logic would support going after other mascots and nicknames.  I personally know someone for whom Notre Dame’s “Fighting Irish” mascot and imagery are mildly offensive, as it arguably perpetuates a negative stereotype of people of Irish heritage.  Others that can be legitimately questioned:  Demon Deacons, Fighting Scots (and here and here), Paladins, Hoosiers, Ragin Cajuns, Pygmies, and the numerous colleges that use Crusaders.  (An exhaustive list of college nicknames is here.)  This doesn’t even touch on mascots whose names and attributes often play on bellicose stereotypes.  In my opinion, these things either need to be enforced across all cultures and races, or (better) left to the stakeholders to address as needed, as many schools have proactively done with respect to Native American nicknames and mascots.

On the positive side, we now have front row seats for UND’s process for selecting a new nickname and logo.  Best of luck to all involved!