Liberty and Justice for All:
1977 Report of the South Dakota Advisory Committee to the U.S. Commission on Civil Rights
The committee examined practices by state, county, and
municipal law enforcement agencies. The committee found:
- selective law enforcement
- search and arrest without cause
- harassment and brutal treatment
- arrest of intxoicated persons on disorderly conduct charges
- simple discourtesies
The study was critical of the court-appointed defense attorney
system and the bail system. It found serious underrepresentation
of Native Americans in the juries and among the personnel
in the courts and law enforcement agencies.
Highlights of the report:
COURT SYSTEM
Recommendation:
The governor should support legislation to authorize the establishment
of a special task force, with representation from each Indian
tribe in the state and fromt he South Dakota Commission on
Indian Affairs, to identify problems in law enforcement and
criminal litigation caused by ambiguities in laws regarding
jurisdiction over Native Americans in South Dakota.
Finding:
Criminal justice records maintained by law enforcement agencies
and courts are lacking in uniformity and comprehensiveness,
making it difficult, if not impossible, to precisely define
and correct problems that Native Americans have in encounters
with the criminal justice system.
Recommendation:
The South Dakota Division of Criminal Justice Planning
should develop a comprehensive statewide criminal justice
data system.
Finding:
Native Americans are drastically under-represented on the
staffs of many law enforcement agencies and courts in South
Dakota.
Recommendations:
State and local law enforcement agencies and the court
system should establish affirmative recruitment programs
specifically designed to increase the number of male and
female Native American law enforcement and court personnel.
State and local law enforcement agencies should increase
the amount of training required for law enforcement officers
devoted to Native American history and culture, including
value systems and socioeconomic patterns.
ABUSE OF POLICE POWER
Finding:
Specific examples of police misconduct in the treatment
of Native Americans lend credence to allegations of widespread
abuse of police power in South Dakota.
Recommendations:
City or county human rights committees or citizens review
boards, appointed by the governor, should be empowered to
review the handling of complaints of police misconduct received
by law enforcement agencies in order to identify any irregularities.
Complaints found to be inadequately or improperly processed
should be forwarded to the state's attorney general for
further investigation.
Better training for law enforcement, to ensure that required
training courses familiarize law enforcement officers with
statutes and procedures designed to prevent violations of
rights during arrest, and in the subsequent handling or
processing of offenders.
ALCOHOL AND CRIME
Findings:
Alcohol is a significant factor in a large proportion of
the arrests in South Dakota. Token appropriations made by
the Legislature for alcohol programs give little evidence
of an awareness of the magnitude of the problem, or any
sense of urgency in dealing with it.
Recommendations:
The governor should appoint a special task force to assess
the extent of alcoholism and its effect upon crime in the
state. The task force should prepare recommendations necessary
to enhance the statewide alcoholism program in South Dakota,
and the allocation of sufficient funds to it.
The South Dakota Supreme court, in cooperation with the
state Bar Association, should establish guidelines for a
statewide system of alternative sentencing for alcohol-related
crimes, to provide offenders with the option of treatment,
rehabilitation, and community service in lieu of fines and
incarceration.
PROBLEMS IN THE COURTS
Findings:
A serious problem of communication exists between Native
Americans and South Dakota court officials, which places
Indians at a disadvantage in obtaining justice. The court
systems are almost entirely white and male, despite the
fact that in some counties the large majority of defendants
are Native Americans.
Recommendation:
Each judicial circuit in South Dakota should train and
employ male and female Native American paralegal personnel,
to assist Indian defendants.
DEFENSE SYSTEM
Findings:
The court-appointed defense attorney system in South Dakota
places indigent defendants at a serious disadvantage. Inexperience,
difficulties in communicaion, and inherent conflicts of
interest on the part of many of the attorneys are detrimental
to Native American defendants.
Recommendations:
The South Dakota Legislature should establish a statewide
public defender system. Such a system would deliver quality
indigent criminal defense services.
Counties with large Indian caseloads should design affirmative
action programs aimed specifically at recruiting male and
female Native American attorneys to serve on their staffs.
Until then, Indian paralegal personnel should be recruited
and trained.
The South Dakota Supreme Court should sponsor trial advocacy
workshops to ensure that public defenders and court-appointed
attorneys gain sufficient trial experience to represent
their clients competently.
JURY REPRESENTATION
Findings:
It is extremely rare for a Native American to serve on a
jury in South Dakota. As a result, it is very difficult
to obtain an impartial jury for the trial of a Native American
in the state.
Recommendations:
The Legislature should enact a statute to broaden the
basis of the jury selection system beyond that of voter
registration lists, to ensure the inclusion of a representative
proportion of Native Americans on each jury panel.
The South Dakota Supreme Court, in cooperation with the
state Bar Association, should direct a comprehensive statewide
survey of the attitudes of potential jurors toward Indians.
This study should be conducted by a competent, impartial
organization from out of state.
POVERY AND CRIME
Findings:
Available statistics show that the level of Native American
unemployment in South Dakota is much higher than that of
white persons, and that more than half of the Indian families
in the state live below the poverty level. Alleviating the
inequities they face in the criminal justice system is directly
related to solving the economic problems they face.
Recommendations:
The South Dakota Office of Economic Opportunity, in cooperation
with the South Dakota Commission on Indian Affairs, should
conduct an extensive investigation of the extent and causes
of male and female Indian unemployment and poverty, both
on and off the reservation. The results, and recommendations
for steps which should be taken to eliminate the causes,
should be made available to the governor and the Legislature.
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Native Americans in South Dakota:
An Erosion of Confidence in the Justice System
2000 Report of the South Dakota Advisory Committee to the U.S. Commission on Civil Rights
BACKGROUND
On December 6, 1999, the South Dakota Advisory Committee to
the U.S. Commission on Civil Rights convened a public forum
in Rapid City to obtain information on issues affecting Native
Americans in the criminal justice system. This followed several
high-profile cases of violent crimes against Indians that
were perceived as having been insufficiently investigated
or prosecuted, and other recent cases resulting in alleged
disparate sentencing. Nearly 100 individuals addressed the
forum, including Federal, State, and tribal officials; Native
American advocacy, grassroots, and community leaders; and
concerned private citizens. In addition, voluminous exhibits,
documentation, and civil rights complaints were submitted
to the Commission and its Advisory Committee.
This body of research is invaluable in comprehending the current
situation, as it demonstrates that many of the conclusions
reached by the Commission and its Advisory Committee more
than 20 years ago are in large measure still valid.
MAJOR CONCERNS AND CONCLUSIONS
Many Native Americans in South Dakota have little or no
confidence in the criminal justice system, and believe that
the administration of justice at the federal and state levels
is permeated by racism. There is a strongly-held perception
among Native Americans that there is a dual system of justice,
and that race is a critical factor in determining how law
enforcement and justice functions are carried out. This
perception includes a belief that violent crimes involving
Native Americans are dealt with differently from those involving
whites. It is believed that crimes perpetrated by whites
against Indians are investigated and prosecuted with less
vigor than those committed by Indians against whites.
Many Native Americans are skeptical that changes in the
justice system will occur to correct injustice and discrimination.
They have lost faith in our democratic institutions and
have no reason to expect reforms.
The Federal Bureau of Investigation in Indian Country
confronts significant problems resulting from lack of confidence
by Native Americans in this agency, born of years of conflict,
controversy, and bitter emotional confrontations. For example,
this lack of confidence is evidenced by Native American
advocates citing significant disparities in the numbers
of unsolved murders and those reported by the FBI.
At the state level, there is also a long history of distrust
and a widespread perception that state and local law enforcement
agencies, prosecutors, and the courts have not treated Native
Americans in an equitable manner.
There is an absence of civil rights organizations and
civilian oversight mechanisms to address grievances involving
police misconduct and other criminal justice discrimination.
Positive police-community relations require citizen participation,
and the advisory structures for this purpose are virtually
nonexistent. Therefore, those who believe they are victims
of discrimination in law enforcement lack adequate redress.
And Native American input is not solicited on a systematic
basis in law enforcement policies and practices.
Federal and state civil rights oversight in South Dakota
is limited.
The advisory committee heard many complaints concerning
federal sentencing guidelines. It was alleged that crimes
prosecuted in the federal system require harsher sentences
than similar offenses prosecuted in state courts. Because
of the much broader federal jurisdiction applicable to crimes
committed by Native Americans in Indian Country, disparate
sentencing - with more severe punishment for Native Americans
- may result. This serves to reinforce and strengthen the
perception of unequal justice for American Indians.
Data collection and reporting systems in the criminal
justice system are insufficient to provide an adequate basis
for determining the extent of discrimination. Uniform reporting
procedures are inadequate or nonexistent.
Native Americans are under-represented in the employment
of all institutions involved in the administration of justice,
at the federal, state, and local levels. They are also largely
excluded from elected positions and other decision-making
positions that govern the administration of justice.
Tribal court systems and tribal law enforcement agencies
receive insufficient training, technical assistance, and
funding from the federal government. The professionalism
and integrity of these institutions are vital to public
confidence in law enforcement and justice in Indian Country.
Jurisdictional issues involving the administration of
justice for Native Americans in South Dakota are often complex,
confusing, and misunderstood. This complexity contributes
to the perceived breakdown of law and order in communities
both on and off the reservations. Also, because of jurisdictional
uncertainties, it appears that key officials can often avoid
accepting responsibility for problems. Thus, accountability
for the administration of justice is difficult to achieve.
Native Americans do not fully participate in local, state,
and federal elections. This absence from the electoral process
results in a lack of political representation at all levels
of government, and helps to ensure the continued neglect
and inattention to issues of disparity and inequality.
The town of White Clay, Neb., has become a symbol of oppression
and exploitation for many Native Americans. This tiny community,
located just a couple of miles south of the Pine Ridge reservation,
serves as a convenient source for alcohol, which cannot
be legally purchased on the reservation. Because so many
criminal justice problems involve alcohol, many American
Indian leaders believe that White Clay represents a threat
to the well-being of their people. In addition, there are
few, if any, detoxification centers or other alcohol treatment
facilities available in this region.
There appear to be limited legal resources available for
Native Americans in South Dakota. Victims of discrimination
often find it difficult to secure legal representation.
Court-appointed defense attorney systems and local public
defender programs have been described as inadequate, due
to inexperience, lack of funding, and potential conflicts
of interest. There are also few Native Americans in the
legal professions.
The expressed feelings of hopelessness and helplessness
in Indian Country cannot be overemphasized. There is a longstanding
and pervasive belief among many Native Americans that racial
discrimination permeates all aspects of life in South Dakota,
and that prejudice and bigotry play out on many levels,
including the workplace, schools, business, and public accommodations.
Ample research exists to establish disparities in almost
all indicators of social well-being, including income, health,
education, employment, and housing.
While some have overcome the obstacles and achieved great
success, most American Indians have been left behind. For
the most part, Native Americans are very much separate and
unequal members of society. Thus, it is not surprising that
they are underrepresented in terms of economic status and
overrepresented in the population of the state's jails,
juvenile facilities, and prisons. Systemic, institutionalized,
and historic discrimination disadvantages Native Americans
in many ways, and therefore the problems they encounter
when caught up in the criminal justice system are wholly
consistent with other forms of discrimination. Despair is
not too strong a word to characterize the emotional feelings
of many Native Americans who believe they live in a hostile
environment.
RECOMMENDATIONS
The South Dakota Advisory Committee recommends that the
Commission on Civil Rights call for the Attorney General
to immediately appoint a federal task force, conferring
upon it the full force of the law (including subpoena power)
to address the crisis of law enforcement affecting Native
Americans, both on and off Indian reservations. Its focus
should be on equal protection of the laws and civil rights
protections.
While the task force should consider issues in all areas
of the country with significant Native American populations,
its initial focus should be on South Dakota, where a lack
of confidence in the justice system among Native Americans
has reached crisis proportions.
The task force will need to develop strategies and aggressive
initiatives for rebuilding Native American confidence in
federal law enforcement functions in Indian Country, especially
those carried out by the FBI. Briefings and consultations
with Indian tribal leaders, grassroots organizations, and
community representatives should be initiated. Permanent
mechanisms need to be established for institutionalizing
Native American participation in Federal law enforcement
activities. Formal complaint procedures need to be instituted
which ensure that allegations of improprieties are thoroughly
and independently investigated. Police-community concepts
should be incorporated in FBI operational practices. FBI
outreach should be designed to provide as much information
as possible concerning Federal law enforcement policies
and protocol. The results of investigations into major crimes
in Indian Country should be publicized in a timely manner.
Procedures for initiating Federal review of criminal cases
by the Civil Rights Division for potential prosecution should
be made public. Where cases are referred for Federal civil
rights scrutiny, results should be reported on a timely
basis.
The FBI and other Department of Justice divisions that
serve Native Americans should expand their efforts to recruit
Native Americans at all levels of employment, including
law enforcement and management positions. Additional training
concerning Indian Country should also be provided to all
enforcement officers. Agents assigned to reservations should
include American Indians and other personnel with knowledge
of cultural differences.
The Departments of Justice and Interior should expand
their efforts to provide funding, training, and technical
assistance to tribal courts and tribal law enforcement.
Tribal governments should make every effort to insulate
their professional law enforcement entities and courts from
the pressures of political influence and patronage.
The South Dakota Advisory Committee recommends that the
U.S. Commission on Civil Rights renew its 1981 recommendation
calling for the U.S. Department of Justice to reconstitute
an Indian section within the Civil Rights Division. It is
imperative that there be a component within the Civil Rights
Division with an exclusive interest in Native American discrimination
issues. This is especially critical in view of the rural
isolation and political disenfranchisement confronting First
Americans.
Hate crimes prevention legislation needs to be enacted
at the state level and strengthened at the federal level
to respond to egregious crimes involving racial bigotry.
Research should be conducted to determine whether there
is bias in the operation of the federal and state court
systems, and all other significant components of the federal
and state law enforcement and prosecution functions. Racial
factors affecting the administration of justice must be
eliminated to restore full confidence in both the federal
and state court systems.
Data collection procedures should be improved at all levels
of the criminal justice system to ensure an adequate basis
for determining equity, fairness, and consistency in the
application of the law.
Racial tensions in South Dakota are high and require the
careful attention of federal civil rights officials. The
Community Relations Service of the Department of Justice
is uniquely equipped to assist communities in resolving
these problems, and in promoting racial dialogue, mediation,
conciliation, and conflict resolution. The commission should
request that the Department of Justice immediately assign
a professional, experienced mediator from the Community
Relations Service to provide these services full time to
communities in South Dakota.
Tribal and Native American organizations should expand
voter registration and educational efforts, and promote
Native American candidates for elective office in South
Dakota.
The State of South Dakota must initiate steps to build
cooperation with its Native American citizens. Confidence
in the administration of justice will not be restored in
the absence of increased mutual respect and improved communications
between Indian people and state officials.The governor should
call a summit and invite not only tribal government officials,
but also Native American advocacy organizations and grassroots
leaders who work directly with the victims of racial discrimination.
This advisory process should be made permanent and result
in positive recommendations for new legislation and policies
designed to make state government more responsive to the
needs of its Native American citizens.
The State of South Dakota should expand the authority
and resources of its Human Rights Commission to include
more educational, enforcement, and mediation services. City
and county governments should consider establishing human
relations commissions and police-community advisory boards
to assist in resolving racial tensions and addressing problems
that might arise from law enforcement activities.
The state of South Dakota should establish a statewide
public defender program with adequate staffing and funding
resources.
Tribal governments should consider establishing civil
rights offices to assist their constituents in seeking redress
for discrimination problems.
While the advisory committee did not focus on issues of
alcoholism and alcohol-related criminal justice problems,
it is clear that there are insufficient resources available
to address these serious matters. Alcohol treatment facilities,
rehabilitation programs, and detoxification centers need
to be established and expanded in South Dakota. Federal,
state, tribal, and local governments should work together
to expand these programs.
Finally, the U.S. Commission on Civil Rights is encouraged
by the Advisory Committee to revisit discrimination issues
affecting Native Americans. Both the commission and this
advisory committee have previously documented much discrimination
in the criminal justice system, both at the federal and
state levels. The commission has carefully documented critical
failures by the federal government in fulfilling its mandate
for law enforcement in Indian Country. However, these conclusions
were reached in studies conducted at least 20 years ago.
The issues deserve reexamination.
It is evident that studies and hearings alone will not produce
necessary changes and reforms. The commitment for change
must be secured from appropriate political leadership in
Washington, D.C., and much more importantly, in South Dakota.
This will not occur without a recognition that a crisis
exists and that Native Americans have lost confidence in
our justice system. As noted above, there is a widespread
perception among Native Americans that there is a dual system
of justice and that longstanding disparities have not been
redressed.
The erosion of faith in our democratic institutions by First
Americans must be corrected soon. Federal and state officials
must reach out to the many alienated American Indians whose
people have borne the brunt of governmental neglect, indifference,
and sometimes hostile treatment over many generations. The
human resources are there to accomplish this, but the resolve
has been missing. We believe that the U.S. Commission on
Civil Rights could serve as a catalyst for initiating the
necessary reforms. This Advisory Committee pledges its efforts
and support to this essential objective.
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