You could probably contest the takedown on the basis that an open-source license allows you to post a fork, but Nintendo got them to agree that the content is illegal, so it seems questionable whether they could give you a license to distribute something it's no longer legal for them to distribute themselves. I wouldn't want to go to court over it, personally.

Nintendo did no such thing. They just settled out of court by owing enough money to bankrupt the company and agreeing to not distribute the work. It means nothing to other people that already have licenses to redistribute from earlier.