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The
SPIRIT LAKE TRIBE OF INDIANS, by and through its COMMITTEE OF
UNDERSTANDING AND RESPECT, and Archie Fool Bear, individually, and as
Representative of the more than 1004 Petitioners of the Standing Rock
Sioux Tribe, Plaintiffs–Appellants
v.
The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant–Appellee.
v.
The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, Defendant–Appellee.
Filed: May 29, 2013.
Before SMITH, MELLOY, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
*1
The
Spirit Lake Tribe of Indians, by its Committee of Understanding and
Respect, and Archie Fool Bear, individually and as representative of
more than 1,004 members of the Standing Rock Sioux Tribe—collectively,
“the Committee”—sued the National Collegiate Athletic Association (NCAA)
for interfering with the University of North Dakota's use of the Fighting Sioux name, logo, and imagery. The NCAA moved to dismiss. The district court FN1 treated the motion as one for summary judgment and granted it. The Committee appeals. This court affirms.
FN1. The Honorable Ralph E. Erickson, United States District Court for the District of North Dakota.
I.
In 1969, the elders of the Standing Rock tribe, joined by one Spirit Lake elder, ceremonially approved UND's use of the Fighting Sioux
name. UND is an NCAA member. In 2005, the NCAA began prohibiting the
display of Native American mascots, nicknames, and images at
championship events, specifically including UND in the announcement. UND
and the North Dakota State Board of Higher Education sued the NCAA,
challenging the policy as applied to UND. In 2007, they entered a
settlement agreement allowing UND to retain the name without sanctions
if the Spirit Lake and Standing Rock tribes granted approval before
November 30, 2010. The Spirit Lake Tribe granted approval, but the
Standing Rock Tribe never voted on the issue. (In 1992, 1998, and 2005,
the Standing Rock Tribe adopted resolutions requesting that UND
discontinue use of the Fighting Sioux name.) In 2009, the Board decided to retire the name early.
The
Committee (but not Fool Bear) sued to enforce the settlement agreement
and to enjoin the nickname's retirement before the deadline. The North
Dakota Supreme Court held that the settlement agreement did not preclude
the Board's early retirement of the nickname without the consent of the
two tribes.
Davidson v. N.D. State Bd. of Higher Educ., 781 N.W.2d 72, 78 (N.D.2010).
The Committee and Fool Bear then brought this suit, requesting, inter
alia, that the court enjoin the NCAA from sanctioning UND for using the Fighting Sioux name and grant non-economic damages of at least $10 million.
II.
Because
the Committee submitted matters outside the pleadings, the district
court treated the NCAA's motion to dismiss as one for summary judgment.
See Fed.R.Civ.P. 12(d). This court reviews a grant of summary judgment de novo.
Lieffort v. Dakota, Minn. & E.R. Co., 702 F.3d 1055, 1057 (8th Cir.2013).
“Reviewing the record in the light most favorable to the nonmoving
party, we will affirm the grant of summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Id. at 1057–58 (internal quotation marks and citation omitted).
The
NCAA argues that the Committee lacks standing. “[T]he irreducible
constitutional minimum of standing” requires that “the plaintiff must
have suffered an injury in fact—an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(internal quotation marks and citations omitted). The Committee and Fool
Bear respond that “they have a pecuniary interest in the name ‘Fighting Sioux’
and have benefitted from the name's honorable usage portrayed on a
national stage.” They claim that ending its use “would dishonor the
sacred ceremony [granting it] and violate their dignity,” additionally
asserting injury from “family turmoil, shame, humiliation, persecution,
and damage to Sioux youth self-esteem and educational opportunities.”
*2
Emotional
harm can be sufficiently concrete and particularized to confer
standing. This court found such an injury where members of the Red River
Freethinkers organization “suffered feelings of exclusion, discomfort,
and anger” from unwanted contact with Fargo's Ten Commandments monument,
which the organization claimed continued to stand because of the city's
allegedly unlawful conduct.
See
Red River Freethinkers v. City of Fargo, 679 F.3d 1015, 1023–24 (8th Cir.2012).
The legally protected interest in that case was clear: freedom from
Establishment Clause violations. Here, the Committee complains of injury
from UND's ceasing to use a name because of the policy of an
association to which UND voluntarily belongs. Even if the Committee's
alleged injury is sufficiently concrete and particularized, it does not
result from the invasion of a legally protected interest.
The Committee argues that the NCAA's acts meet the requirements of a prima facie 42 U.S.C. § 1981 discrimination case. Section 1981
protects the rights of citizens belonging to protected classes “to make
and enforce contracts,” including “the making, performance,
modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual
relationship.” 42 U.S.C. § 1981.
Our court has identified several elements to a claim under § 1981,
which we divided into four parts for analysis: (1) membership in a
protected class, (2) discriminatory intent on the part of the defendant,
(3) engagement in a protected activity, and (4) interference with that
activity by the defendant.
Gregory v. Dillard's, Inc., 565 F.3d 464, 469 (8th Cir.2009) (en banc). The first element is not disputed, but the others are absent here. See Torgerson v. City of Rochester, 643 F.3d 1031, 1052–53 (8th Cir.2011) (en banc) (racial discrimination claims under § 1981 may be based on Native–American status, if stated as race claims).
“A plaintiff may prove intentional race discrimination using either direct or indirect (circumstantial) evidence.”
Putman v. Unity Health Sys., 348 F.3d 732, 734 (8th Cir.2003).
“ ‘Discriminatory purpose’ ... implies more than intent as volition or
intent as awareness of consequences. It implies that the decision maker
... selected or reaffirmed a particular course of action at least in
part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an
identifiable group.”
Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal citation omitted).
The
Committee has not shown that the NCAA acted with discriminatory intent.
The NCAA claims to be motivated by the desire to eliminate the use of
“hostile and abusive” mascots and imagery, but ultimately agreed to
allow UND's use of the Fighting Sioux
nickname if the Spirit Lake and Standing Rock tribes approved. The NCAA
stated in the settlement agreement that it would not “initiate contact
with any Sioux Tribe for the purpose of attempting to persuade any
tribal governmental entity to provide or not provide namesake approval
to UND.” There is no evidence that the NCAA enacted the policy in order
to eradicate Sioux culture, as the Committee alleges.
*3
The
Committee contends that the NCAA interfered with a protected activity by
tortiously interfering with a contract allegedly created by the 1969
ceremony. North Dakota's tort of interference with contract requires the
plaintiff to prove the existence of a contract.
ANR W. Coal Dev. Co. v. Basin Elec. Power Coop., 276 F.3d 957, 971–72 (8th Cir.2002),
citing
Peterson v. Zerr, 477 N.W.2d 230, 234 (N.D.1991)
and
Bismarck Realty Co. v. Folden, 354 N.W.2d 636, 642 (N.D.1984). “A contract requires parties capable of contracting, consent of the parties, a lawful object, and sufficient consideration.”
Ehlen v. Melvin, 823 N.W.2d 780, 783 (N.D.2012),
quoting
Stout v. Fisher Indus., Inc., 603 N.W.2d 52, 56 (N.D.1999);
see also N.D.C.C. § 9–01–02. “To create an enforceable contract, there must be a mutual intent to create a legal obligation.”
Holbach v. Holbach, 784 N.W.2d 472, 480 (N.D .2010),
quoting
Lire, Inc. v. Bob's Pizza Inn Rests., 541 N.W.2d 432, 434 (N.D.1995). “[T]o be valid and enforceable, ... a contract must be
reasonably definite and certain in its terms so that a court may require it to be performed.”
Lagerquist v. Stergo, 752 N.W.2d 168, 173 (N.D.2008) (alterations in original),
quoting
Delzer v. United Bank of Bismarck, 459 N.W.2d 752, 758 (N.D.1990).
North Dakota gives tribal ordinances and customs full force and effect
“if not inconsistent with the applicable civil law of [the] state.” N.D.C.C. § 27–19–09.
However
meaningful the nickname's grant may have been, there was no contract
because there was no indication of mutual intent to create a legal
obligation, let alone an obligation sufficiently definite and certain
that a court could require its performance. The Tribes were apparently
free to withdraw their permission to use the nickname; most importantly,
as the
Davidson court held, the Board was free to change UND's nickname.
See
Davidson, 781 N.W.2d at 76–77. Contemporary newspaper
articles cited by the Committee suggest a statement of appreciation, not
a contract. One explains, “The pow-wow was given in appreciation to the
University for the educational opportunities it has given the Sioux
Tribe.” Another quotes the coordinator for the Head Start Program on the
Standing Rock Tribe reservation as saying, “This is our way of giving
thanks for the education opportunity and hospitality the University has
extended to the members of our tribe who are participating in the Head
Start Career Development Program.” Interpreting the facts most favorably
to the Committee, the ceremony was only a statement of appreciation.
The Committee argues that its exclusion from the settlement agreement violated § 1981 because both tribes were indispensable parties to the agreement. Even if that argument is not collaterally estopped by
Davidson, it fails because the Committee has not presented a prima facie § 1981 case by showing the NCAA excluded it for racially discriminatory reasons.
*4
The
Committee contends that the NCAA violated its own constitution and
bylaws in adopting the 2005 policy. Courts generally adhere to the
principle of judicial noninterference in decisions of voluntary
associations (subject to recognized exceptions).
See
Crouch v. National Ass'n for Stock Car Auto Racing, Inc., 845 F.2d 397, 400–03 (2d Cir.1988)
(courts are more willing to intervene “when they conclude that there
are inadequate procedural safeguards to protect members' rights”);
Scheire v. International Show Car Ass'n, 717 F.2d 464, 465–66 (9th Cir.1983)
(judicial review is appropriate where the association “has plainly
contravened its bylaws” and “the burdens on the courts and on the
interest of the association in its autonomy do not outweigh the
aggrieved member's interests”);
Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527, 544 (7th Cir.1978)
(exceptions exist “1) where the rules, regulations or judgments of the
association are in contravention to the laws of the land or in disregard
of the charter or bylaws of the association and 2) where the
association has failed to follow the basic rudiments of due process of
law”). The facts here support none of these exceptions; the Committee
cannot complain of being denied due process by the NCAA because, as a
nonmember, it was entitled to none from the NCAA. The NCAA's acts
neither violate the laws of the land nor plainly violate its own
constitution and bylaws.
III.
Spirit Lake Tribe of Indians ex rel. Committee of Understanding and Respect v. National Collegiate Athletic Ass'n
--- F.3d ----, 2013 WL 2320811 (C.A.8 (N.D.))
END OF DOCUMENT
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