                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2292
                         ___________________________

                     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

                       lllllllllllllllllllll Plaintiffs - Appellants

                                            v.

                   The National Collegiate Athletic Association

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                     for the District of North Dakota - Fargo
                                  ____________

                           Submitted: February 14, 2013
                              Filed: May 29, 2013
                                 ____________

Before SMITH, MELLOY, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

     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 court1 treated the motion as one for summary judgment
and granted it. The Committee appeals. This court affirms.

                                           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.



      1
       The Honorable Ralph E. Erickson, United States District Court for the District
of North Dakota.

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                                           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.”

      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.


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       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


                                          -4-
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.

        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

                                          -5-
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.

       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.

      The judgment of the district court is affirmed.
                     ______________________________

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