U.S. Commission on Civil Rights

Native Americans in South Dakota:
An Erosion of Confidence in the Justice System

Chapter 1

Introduction 

By many accounts racial tensions in South Dakota have heightened over the past year. A recent series of high-profile cases involving the unsolved deaths of several American Indians has brought tensions to the surface. Rumors of coverups by law enforcement, allegations of halfhearted or nonexistent investigations, and seemingly disparate jail sentences have spurred protests throughout American Indian communities, and further strained already tenuous white-Indian relations. Although tension has been exacerbated by the perception of racial injustice surrounding these cases, for some it reflects a vast cultural divide and a gulf of suspicion and mistrust between Indians and whites in a State that historically was one of the bloodiest battlegrounds between the races during the great westward expansion. [1]

In the summer of 1999, in response to widespread claims of unfair treatment at all levels of the State's criminal justice system, the South Dakota Advisory Committee to the U.S. Commission on Civil Rights voted to undertake a project on the administration of justice as it applies to Native Americans. The Committee, composed of South Dakota residents, underscored the importance of determining whether a double standard of justice does indeed exist, from treatment by law enforcement officers through the sentencing phase. Commissioner Elsie Meeks, a member of the Oglala Sioux Tribe from South Dakota and the first Native American to serve as a Commissioner for the national Commission on Civil Rights, had urged the Advisory Committee to look into allegations of injustice, later characterizing the situation in the State as explosive. As a result, the Advisory Committee hastened its efforts and began planning for a community forum to collect information.

On December 6, 1999, the South Dakota Advisory Committee held a community forum entitled Native Americans and the Administration of Justice in South Dakota in Rapid City at the Rushmore Plaza Holiday Inn. Viewpoints from a wide variety of sources were solicited. Accepting invitations to speak before the Committee were Federal enforcement officials, including the South Dakota U.S. attorney, FBI agents, and a Justice Department representative; State s attorneys; a Bureau of Indian Affairs superintendent; local law enforcement, including Rapid City's chief of police and the county sheriff; tribal law enforcement from the Oglala and Standing Rock Sioux Tribes; and community members. The presenters were divided into panels according to topics (e.g., Federal Enforcement panel, State Prosecutors panel, and Community panel), and at the conclusion of each panel's presentations was a question and answer period.

A session for public participation was held from 7:00 p.m. until approximately 11:00 p.m. More than 50 people, most of whom were Native American, spoke of their experiences with South Dakota's criminal justice system and other issues. Many had arrived before the proceedings began at 10:30 a.m. and stayed after the conclusion of the open session, filling the large facility to standingroom-only throughout the day and into the night.

In addition to Elsie Meeks, the Advisory Committee was joined at the forum by four other Commissioners: Chairperson Mary Frances Berry, Vice Chairperson Cruz Reynoso, Christopher Edley, and Yvonne Lee. The Commissioners welcomed the opportunity to hear firsthand accounts of specific cases and general assessments on the state of criminal justice in South Dakota to determine what, if any, action is needed at the Federal level.

South Dakota's two largest newspapers, the Sioux Falls Argus Leader and the Rapid City Journal, published editorials supporting the Committee's upcoming visit. The Argus Leader commented that the commission's decision to make itself available . . . could not have come at a more opportune time and we are proud that law enforcement and community leaders are already on record as supporting the commission's visit. [2] At the community forum, however, some Native Americans expressed concern that nothing would result from the Committee's project and questioned if any effort, Federal or otherwise, could reduce the racial tension and inequalities that have existed, in their view, forever.

From the statements presented at the forum, the Advisory Committee prepared conclusions and recommendations for the Commission's consideration. These begin on page 37 and follow an executive summary of the proceedings. A transcript of the proceedings will be made available at a later date. The Committee hopes that its project has brought attention to inequities, real or perceived, in South Dakota's justice system and that it has made a step toward reducing racial tension in the State.

The Commission and the South Dakota Advisory Committee have studied administration of justice issues in the State in the past. In 1978 the Commission held hearings in Rapid City (American Indian Issues in the State of South Dakota) and Washington, D.C. (Federal Bureau of Investigation-Indian Reservations; Police Practices), and issued a June 1981 report titled Indian Tribes: A Continuing Quest for Survival based on testimony received at the hearings and other research. The South Dakota Advisory Committee held factfinding meetings in 1975 and 1976 addressing law enforcement and justice concerns affecting American Indians and released a report in 1977, Liberty and Justice for All, which included findings and recommendations. It is both remarkable and disconcerting that many of the concerns brought before the Commission in the 1970s were the same ones heard more than 20 years later in Rapid City.

Recent Cases

The South Dakota Advisory Committee's decision to hold a forum on administration of justice issues was precipitated by a series of American Indian deaths in Rapid City, Pine Ridge, Mobridge, and Sisseton, all of which have garnered much media attention and deepened the perception of inequality. In an editorial, the Rapid City Journal contends that because of their dissimilarities these cases may not prove the existence of a statewide pattern of injustice, but within their context the growing perception that Indian lives are not as valued by our justice system becomes understandable. [3] A brief summary of the incidents follows.

Since May 1998 the bodies of eight men, six of them American Indian, have been found drowned in the shallow waters of Rapid Creek. Most of the men were homeless; all but one had a high blood-alcohol level. Joint investigations by the Rapid City Police Department and the Pennington County Sheriff's Office have revealed no signs of foul play. The investigative team has sought the assistance of several outside agencies, including the South Dakota Division of Criminal Investigation, the Mid-States Organized Crime Information Center, and the Federal Bureau of Investigation. Approximately 100 people have been interviewed in the search for information, and more than 1,500 pages of documentation have been generated.[4] Nevertheless, that eight people could accidentally fall into the creek is greeted by skepticism from many. No arrests have been made, but the investigation is ongoing.

On June 8, 1999, just inside the Pine Ridge Reservation in the southwestern part of the State, Wilson Black Elk, Jr., and Ronald Hard Heart, were found beaten and murdered. Many American Indians are convinced that the case is not being aggressively investigated, and rumors abound that law enforcement officials are covering up facts.[5] (Panelist Tom Poor Bear, a relative of both victims, expressed this sentiment during the community forum.) The rumors have sparked weekly demonstrations calling on the FBI to intensify its efforts. A month after the murders, congressional delegations from South Dakota and Nebraska as well as the U.S. Commission on Civil Rights sent letters to Attorney General Janet Reno informing her of frustration and suspicion on the reservation and requesting that the FBI commit whatever resources necessary to solve the case in a timely manner. Two days before the Commission's forum in Rapid City, and 5 months after the crime, 25 FBI agents returned to the scene to search for evidence.

In Mobridge, near the Standing Rock Sioux Indian Reservation, the body of 22-year-old Robert Many Horses was found on June 30, 1999. Many Horses, who was born with fetal alcohol syndrome, had been stuffed headfirst into a garbage can. After an autopsy revealed he died of alcohol poisoning, charges against the four white teenagers implicated in his death were dropped. The move outraged many American Indians, who alleged that the defendants received preferential treatment and that prosecutors and law enforcement were lackadaisical in their efforts. The State's attorney for Walworth County, who was responsible for prosecuting the teenagers, spoke at the community forum and said that the evidence simply could not support a manslaughter charge and the decision on whether to pursue misdemeanor charges had not been made.

In the spring of 1999, a pickup truck struck and killed a 21-year-old Native American Sisseton resident, Justin Redday, on a dark, deserted stretch of road in Roberts County. The truck's driver, Mark Appel, then 17, said Redday had been lying in his lane of traffic and that he did not swerve to avoid running over him because it is illegal to cross the white line, or if it is a solid yellow line, or even if it wasn t, it is illegal to swerve. [6] The case has fueled racial tensions in the county because Appel, who is white and who was legally drunk at the time of the accident, was indicted by a grand jury for vehicular homicide, but prosecutors later dismissed the indictment and instead charged him with driving while intoxicated. Justin Redday's mother told a South Dakota newspaper, If my son had been driving, rather than the victim, he'd be serving 20 years. [7]

For the American Indian community, the Redday case demands comparisons to another, that of Melanie Seaboy. A year earlier in Roberts County, 18-year-old Seaboy, an enrolled tribal member, was driving a car that struck a truck driven by a non-Indian, killing him instantly. Seaboy was legally drunk and charged with vehicular homicide and second-degree manslaughter. Within a month of the accident, she began serving a 14-year prison sentence.

At the community forum, the Roberts County State's attorney, who has taken the brunt of criticism from Native Americans, defended his actions in the Redday and Seaboy cases. He pointed out differences between the cases, namely that Melanie Seaboy at 18 years of age was charged as an adult, whereas Mark Appel could not be. Justin Redday's mother and Melanie Seaboy's father also spoke before the Advisory Committee.

Historical Perspective

Law enforcement issues facing American Indians cannot be understood fully without reference to South Dakota's history and the historical relationship between Indian and non-Indian people. Volumes have been written on events that have defined Indian-white relations: the westward expansion of whites in the late 19th century, broken treaties, and policies aimed at assimilation and acculturation that severed Indians of their language, customs, and beliefs. This report will not explore those subjects, but a brief mention of some may provide a backdrop for the summary of testimony from the community forum that follows.

Fort Laramie Treaty

South Dakota was home to the fiercest battles between Indians and Government troops during the great westward expansion. By the late 1870s, in a fight to keep their land, the Oglala Lakota Sioux led by Red Cloud and Crazy Horse had been responsible for two of the three greatest defeats ever inflicted on the United States Army by Indians. [8] It was the Lakota, along with the Cheyenne, who defeated Custer and 200 of his troops at Little Big Horn. By fighting, the Sioux people managed to keep approximately 10 percent of their original tribal land, much greater than the 3.5 percent retained by the Great Plains tribes overall.[9]

After a series of skirmishes with the Sioux, the U.S. Government in 1868 signed the Fort Laramie Treaty, which set aside 60 million acres of land west of the Missouri River and guaranteed the Indians absolute and undisturbed use of the Great Sioux Reservation, stating that no persons . . . shall ever be permitted to pass over, settle upon, or reside in territory described in this article, or without the consent of the Indians pass through the same. [10] But with the discovery of gold in the Black Hills, transgressions in Lakota country soon became commonplace. In November 1875, the Secretary of War predicted trouble in the Black Hills unless something is done to gain possession of that section for the miners. [11] And in February 1877, after obtaining signatures from some tribal members, Congress abrogated the Treaty of 1868 and took possession of the Hills. The Sioux's 60 million acre reservation promptly became 13 million acres.

The Sioux sued the United States for illegal expropriation of the Black Hills, and after more than 40 years of winding its way through lower courts the case went to the Supreme Court. In the 1980 decision the Court upheld a $17.5 million award to the Great Sioux Nation for the land, and another $88 million in interest.[12] Justice Blackmun, who authored the opinion, quoted the lower court, stating, A more ripe and rank case of dishonorable dealing will never, in all probability, be found in our history. [13] Despite the ruling, the issue continues to be a divisive one between Indians and non-Indians in South Dakota. The Great Sioux Nation refused the money believing that its acceptance would mean the abandonment of any claims it had on the Black Hills. The money is held in a Federal escrow account, and with interest the fund is now in excess of $500 million.[14] The current governor of South Dakota, William Janklow, recently said, If I was an Indian, I could understand the shaft, because this land was stolen in spite of the treaty. But we didn't do it, the federal government did it, and now it's leaving us to try to deal with it. [15]

Wounded Knee 1890, 1973 and the Pine Ridge Shoot-out

In December 1890, Sitting Bull, who had helped lead the Sioux and Cheyenne against the U.S. Army at Little Big Horn, was killed by Government troops on the Standing Rock Reservation while resisting arrest. His followers then fled on horseback to what they thought was the sanctuary of Pine Ridge Reservation, 175 miles to the south. The U.S. Army pursued the Sioux and found one group at an encampment near Wounded Knee Creek. In the ensuing confrontation, the Seventh Cavalry gunned down between 150 and 370 Sioux men, women, and children, and lost about 25 of its own men. Custer's avenged regiment received 20 Congressional Medals of Honor. The Wounded Knee massacre irrevocably affected the Lakota and Sioux people. The event's significance and memory have not diminished throughout the hundred and more years since it occurred. [16]

The tragedy at Wounded Knee was followed by a long period of acculturation. Peter Matthiessen writes:

After Wounded Knee, the soldiers were replaced by bureaucrats, including educators whose official task was to break down the cultural independence of people. On pain of imprisonment, the Lakota were forbidden the spiritual renewal of traditional ceremonies; even the ritual purification of the sweat lodge was forbidden. They were not permitted to wear Indian dress or to sew beadwork, their children were seized and taken away to government boarding schools at the Pine Ridge Agency, and use of their own language was discouraged.[17]

Although many Native Americans point out that they never stopped resisting the seizure of their lands or the subordination of their cultures, the 1960s and 1970s saw an upsurge of Indian activism. In February 1973 members of the American Indian Movement (AIM) began a 71-day occupation of Wounded Knee, by then a small village, to protest mistreatment of tribal people and what they believed was the oppressive leadership of Richard Wilson on the Pine Ridge Reservation. Surrounded by Federal troops, the armed activists demanded that the U.S. Senate investigate conditions on the reservation. For weeks the two sides exchanged tens of thousands of rounds of ammunition, and two Oglala men were killed.[18] After the standoff had ended, 185 tribal people were indicted by Federal grand juries on charges of arson, theft, assault, and interfering with Federal officers. [19]

A few years later, in 1975, tensions between the Sioux and the FBI once again peaked. On June 26, two FBI agents drove onto Pine Ridge Reservation near the village of Oglala. Here a shoot-out occurred in which both agents and one Indian man were killed. The death of the agents provoked one of the largest manhunts in FBI history. Four Indians were subsequently indicted for the killings, but charges against one were dropped and two others were acquitted, with the jury concluding that the men had fired shots in self-defense. The fourth man, Leonard Peltier, is serving consecutive life sentences. 

During the 5-month period preceding the 1975 shooting deaths, more incidents of violence were reported on the Pine Ridge Reservation than in the rest of South Dakota combined.[20] According to William Muldrow, a former Commission on Civil Rights analyst sent to the reservation, a perception predominated among the Sioux that the FBI, whose responsibility it was to investigate the incidents, was not concerned for the welfare of the tribal people. The Commission received numerous complaints alleging weak investigative efforts on the part of the Bureau during this time.[21]

South Dakota Demographics

The Census Bureau estimated the 1998 population of South Dakota to be 738,171, ranking it 45th among States.[22] It is among the least urbanized, with only 33 percent of its residents living inside metropolitan areas.[23] Sioux Falls is the largest city in the State with 105,634 residents, followed by Rapid City in the Black Hills with 57,053.[24]

The estimated white population in South Dakota is 669,007, or 90.6 percent. American Indians are by far the largest minority group, making up 8 percent (59,292) of the population. Only Alaska and New Mexico have larger percentages of American Indian residents. Blacks and Hispanics represent 0.7 and 1.2 percent of the population, respectively.[25]  

Native Americans in South Dakota

Nationwide, American Indians number approximately 1.2 million, with 900,000 living on or near Indian reservations.[26] The Bureau of Indian Affairs (BIA), Great Plains Regional Office in Aberdeen, compiles demographic data on its service area encompassing North Dakota, South Dakota, and Nebraska. South Dakota's nine reservations vary in size from Lower Brule, with about 1,200 residents to Pine Ridge, with more than 30,000, making it the second largest reservation in the United States.[27] 

Economic Conditions

Despite a booming economy, nationwide half of the potential work force in Indian Country is unemployed.[28] For American Indians in South Dakota the statistics are even worse. Unemployment rates for Indians living on or near South Dakota's reservations are shown in table 1. The estimates were collected from the tribes by the BIA and compiled in the Bureau's report, 1997 Labor Market Information on the Indian Labor Force. (In 1997 the unemployment rate for the white population in South Dakota was 2.7 percent.[29])

Even when Indian people are employed, their low wages often keep them below the poverty line. According to the BIA report, 30 percent of adult Indians employed in 1997 were still living below poverty guidelines established by the Department of Health and Human Services.[30] The major employers on South Dakota's reservations are the tribes, Bureau of Indian Affairs, and the Indian Health Service.[31]

Of the 10 poorest counties in the United States in 1990, 4 were on Indian reservations in South Dakota.[32] The poorest county in the Nation is Shannon County, which includes much of Pine Ridge Reservation: 63.1 percent of county residents have incomes that fall below the poverty line.[33] The average annual income for families living on Pine Ridge is just $3,700.[34] 

The effects of poverty are far reaching. According to the director of BIA's Great Plains Regional Office, on South Dakota's reservations economic depression has manifested itself in the form of suicides, alcohol and drug abuse, juvenile gangs, and dropping out of school, to physical abuse, sexual abuse, and child abuse. [35]

Health

On average, men in Bangladesh can expect to live longer than Native American men in South Dakota. A study by the Harvard School of Health in conjunction with health statisticians from the Centers for Disease Control found that Native American men living in six South Dakota counties had the shortest life expectancy in the Nation. The study shows a 40-year difference between the longest lived people in the country Asian American women in parts of the Northeast and Florida who live on average into their late 90s and Indian men in South Dakota who usually live only into their mid-50s.[36] 

Causes of death among American Indians are outlined in an Indian Health Service report titled 1997 Trends in Indian Health. The report notes that American Indians die much more often from certain causes than the general population. In 1993, age-adjusted death rates for the following causes were considerably higher for American Indians: alcoholism, 579 percent greater; tuberculosis, 475 percent; diabetes mellitus, 231 percent; accidents, 212 percent; suicide, 70 percent; pneumonia and influenza, 61 percent; and homicide, 41 percent.[37] Further, infant mortality in Indian Country is double the national average,[38] and Pine Ridge Reservation has the highest infant mortality rate in the Nation.[39] 

Crime

In an October 1997 report, the Justice Department's Criminal Division concluded there is a public safety crisis in Indian Country. While most of the Nation has witnessed a drastic reduction in serious crime over the past 7 years, on Indian reservations crime is spiraling upwards. Between 1992 and 1996, the overall crime rate dropped about 17 percent, and homicides were down 22 percent. For the same period, however, the Bureau of Indian Affairs reported that murders on America's Indian reservations rose sharply. Some tribes, the Justice Department report says, have murder rates that far exceed those of urban areas known for their struggles against violent crime. And other violent crimes parallel the rise in homicide.[40] 

Tribal law enforcement agencies do not have the resources to meet their growing caseloads. The Criminal Division's report concluded, The single most glaring problem is a lack of adequate resources in Indian Country. Any solution requires a substantial infusion of new money in addition to existing funds. A chronic shortage of personnel plagues most agencies. For example, in 1996 Indian Country residents were served by less than one-half the number of officers provided to small non-Indian communities.[41] Tribal officers are also in dire need of training. According to the BIA, no reservation in South Dakota has a fully staffed, adequately trained law enforcement program.[42]

In February 1999, the Department's Bureau of Justice Statistics issued what many consider to be the first comprehensive analysis of Indians and crime,[43] and the findings reveal a disturbing picture of American Indian involvement in crime as both victims and offenders. [44] The severity of the problem, affecting Indians of all ages and socioeconomic backgrounds, surprised even the report's authors. We now know that American Indians experience a much greater exposure to violence than other race groups, Lawrence A. Greenfeld told reporters. I was very surprised, he said, the common wisdom was that blacks experience the highest exposure to violence. And when we release the [crime] survey results year after year, that was the result. This adds a new dimension to our understanding of the problem. [45] 

The study finds that American Indians experience per capita rates of violence which are more than twice those of the U.S. population.[46] From 1992 through 1996 the average annual rate of violent victimizations among Indians 12 years and older was 124 per 1,000 residents, compared with 61 for blacks, 49 for whites, and 29 for Asians (see table 2).[47] The rate of violent crime experienced by American Indian women is nearly 50 percent higher than that reported by black males.[48] 

The report also found that in 7 out of 10 violent victimizations of American Indians the assailant was someone of a different race, a substantially higher incidence of interracial violence than experienced by white or black victims (see table 3). Among white victims, 69 percent of the offenders were white; similarly, black victims are most likely to be victimized by a black assailant (81 percent). For American Indian victims of rape/sexual assault, the offender is described as white in 82 percent of the cases.[49] 

Alcohol is more often a factor in crimes committed by and against American Indians than for other races. Seventy percent of Indians in local jails for violent crimes had been drinking when they committed the offense, nearly double the rate for the general population.[50] In 55 percent of violent crimes against American Indians, the victim said the offender was under the influence of alcohol and/or drugs.[51] The offender's use of alcohol is less likely for white and black victims (44 and 35 percent, respectively).[52]

Other important findings of the study are as follows:

• The arrest rate for alcohol-related offenses among American Indians (drunken driving, liquor law violations and public drunkenness) was more than double that for the total population during 1996. However the drug arrest rate was lower than for other races.

• Almost four in 10 American Indians held in local jails had been charged with a public order offense most commonly driving while intoxicated. 

• During 1996 the American Indian arrest rate for youth violence was about the same as that for white youths.

• On any given day an estimated one in 25 American Indians 18 years old and older is under the jurisdiction of the nation's criminal justice system. This is 2.4 times the rate for whites and 9.3 times the per capita rate for Asians but about half the rate for blacks.

• The number of American Indians per capita confined in the state and federal prisons is about 38 percent above the national average. However, the rate of confinement in local jails is estimated to be nearly 4 times the national average.[53]

In 1999 Roberts County South Dakota officials retained an outside firm to prepare a feasibility study of current and future needs of the county's jail. The firm's November 1999 report, Justice Center Planning: Roberts County, states that over the past 6 years, 75 85 percent of the county's inmates were Native American.[54] According to the Sisseton-Wahpeton Sioux Tribe, tribal members make up only 23 percent of the Roberts County population.[55] 

Incarceration rates for American Indians in South Dakota's State penitentiaries reflect national trends. South Dakota's two State prisons for men house 2,322 inmates. Although American Indians make up only 8 percent of the State's population, they are 21 percent of the State's male prison population. Whites are 76 percent and blacks are 4 percent. In the South Dakota women's prison, which has 202 inmates, 66 percent of the inmates are white, 31 percent are American Indian, and 3 percent are black.[56] The racial breakdown for juvenile inmates in State facilities is as follows: 63 percent white, 31 percent American Indian, 2 percent black, 1 percent Asian or Pacific Islander, and 3 percent other. [57]

That Native Americans are arrested and sentenced to prison disproportionately to their numbers in the population is indisputable, but the reasons why are unclear. Many speakers at the Advisory Committee's forum contended that racism plays a role. In 1998 a Mayor's Task Force on Police and Community Relations was formed in Rapid City to look into allegations of police prejudice against Native Americans. At the time, Native Americans were only 8 percent of the city's population but accounted for 51 percent of adults arrested and 40 percent of juveniles arrested.[58] The task force eventually exonerated the police department of any wrongdoing. Its final report states: It is true that American Indians are over represented in their involvement in crime. . . . There may be many reasons for this over representation, but this committee does not feel that prejudice is one of the major causes. [59] The report continues:

It is very apparent to this Committee that some members of the American Indian Community have the perception that racism and selectivity exists in the Rapid City Police Department. However from the examination of formal complaint files and circumstances surrounding certain arrests spoken about at the public hearing . . . it is also apparent that the accusations of prejudice against the Rapid City Police Department are not supported by fact.[60]

Bruce Long Fox, an Indian member of the task force, later told reporters the arrest rates were the product of alcohol, drugs, poverty, and unemployment, not racial bias on the part of police officers.[61]          

The Border Town of White Clay

Throughout the community forum, the Committee heard from Pine Ridge residents who blame much of the area's crime and social blight on a small Nebraska border town named White Clay. With only 22 residents, all of whom are white, and four stores that sell beer, in many people's eyes the unincorporated town exists for one purpose: to supply the dry reservation with a steady supply of alcohol. (Pine Ridge is the only reservation in South Dakota that still prohibits the sale of liquor within its borders.) The four stores sell more than $3 million (4 million cans) of beer annually,[62] with more than 90 percent of their customers coming from the reservation.[63] The State of Nebraska also benefits: White Clay businesses paid almost $88,000 in Nebraska State liquor taxes in 1997, and $152,000 in State sales taxes.[64] Tribal police estimate that they issue more than 1,000 DUIs annually on the 2-mile stretch of road between White Clay and Pine Ridge.[65] 

Some Native Americans contend White Clay business owners are unfairly taking advantage of people who live on a reservation where alcoholism is rampant. The idea is a hard sell for merchants, who see their existence in terms of free enterprise and supply and demand. One store owner told the Wall Street Journal, The Indians say we exploit them. Well, tell me a business that doesn t. Would you put an air-conditioning business in Antarctica? . . . We offer convenience. That's our business. [66] 

A group of U.S. Commission on Civil Rights Commissioners and staff traveled to White Clay the day before the Rapid City forum to hear merchants perspectives on the controversy. A few residents of Pine Ridge were also present. The White Clay store owners explained to the Commission that over the years they have maintained a friendly relationship with Pine Ridge residents and that racism is not a problem. When questioned about their stores close proximity to the reservation and the perception of exploitation, the merchants responded that their stores short walking distance from the reservation serves as a convenience, even a public service, to Pine Ridge residents by decreasing the number of intoxicated drivers on the road. Acknowledging alcoholism as a problem on the reservation, the business owners stated that a detoxification center on the reservation would be a good idea. 

The Pine Ridge residents who attended this site visit strongly disagreed with the merchants description and portrayal of the current state of affairs in White Clay. According to one Pine Ridge resident, Tom Poor Bear, the stores proximity to the reservation only fuels the alcoholism problem. He stated that most Pine Ridge residents who drive the short 2-mile distance to White Clay travel in cars that often do not have license plates, mufflers, or windshields. He contended that these Indian cars could not travel the longer distances to places like Rushville to purchase alcohol.[67]

Although relations between Pine Ridge residents and White Clay merchants have never been placid, the murders of Wilson Black Elk, Jr., and Ronald Hard Heart have ignited protests calling for White Clay to be shut down. Many tribal members believe their deaths had some connection to alcohol and by extension to White Clay.[68] (Their bodies were found 100 yards north of White Clay on reservation land.) In late June 1999, Pine Ridge residents began a series of weekly marches into White Clay demanding that the stores close. The first march, which had as many as 1,500 participants, turned violent, with demonstrators looting and burning a store that sold beer and groceries. Later marches have been more peaceful. 

More is at stake, however, than the closing of beer stores. A group of Native Americans has gone to court maintaining that according to the details of the 1868 Fort Laramie Treaty, White Clay is actually within the boundaries of Pine Ridge Reservation and should be returned to the Sioux. In 1904 President Theodore Roosevelt ordered the southern edge of Pine Ridge removed to create a buffer zone between white settlers and the Indians, an action counter to the wording of the 1868 treaty. An Oglala Sioux tribal court had ruled that White Clay is indeed part of Pine Ridge. But in February 2000, the group suffered a legal setback when a Sheridan County court ruled that White Clay and the dozens of square miles surrounding it are within the jurisdiction of Nebraska.[69] 

Criminal Jurisdiction

Criminal jurisdiction over Native Americans is far too complex to be covered here in detail.[70] Its governing principles have been established by hundreds of court decisions and statutes over the past 200 years. But a basic understanding of some jurisdictional issues may be helpful to appreciate the testimony that follows. In South Dakota the responsibility for investigation and prosecution of crime rests with the State, its counties and cities, the Federal Government, or one of nine tribal governments depending on where the crime occurred and its severity, and sometimes on the Indian status of the victim and offender. 

Whether a crime occurs in Indian Country often dictates jurisdiction. The Indian Country designation is the benchmark for approaching the allocation of federal, tribal, and state authority with respect to Indians and Indian lands. [71] As a general rule, State jurisdiction does not extend into Indian Country; either Federal or tribal laws govern depending on the crime.[72] Broadly speaking, Indian Country is all the land under the supervision of the United States government that has been set aside primarily for the use of Indians. [73] All land within an Indian reservation is considered Indian Country even if it is owned by a non-Indian.[74] 

An Indian who commits a crime in violation of State law off reservation land is subject to the same treatment as a non-Indian.[75] The local police department or county sheriff's department handles the investigation, and the State's attorney prosecutes if sufficient evidence is uncovered. 

The Federal Government has primary responsibility for the investigation and prosecution of serious crimes that occur in Indian Country. Serious crimes are enumerated under the Major Crimes Act and include, among others, murder, manslaughter, rape, burglary, robbery, and kidnapping[76] offenses constituting the greatest threat to public safety. For these crimes, the FBI carries out the investigation and the South Dakota U.S. Attorney's Office is responsible for prosecuting defendants. The Federal Government also has jurisdiction over all offenses committed on a reservation by a non-Indian offender against an Indian victim and an Indian offender against a non-Indian victim.[77] The South Dakota U.S. Attorney's Office publishes an annual Indian Country Report that provides case statistics by reservation, and summary tables show a breakdown of charges filed by the office according to type of violation.[78] In 1998, for example, Federal prosecutors pursued 92 cases on Pine Ridge, 85 on Rosebud, and 39 on Cheyenne River.[79]

In Indian Country, tribal governments hold exclusive jurisdiction over all crimes committed by one Indian against another that are not subject to Federal prosecution. The Supreme Court noted that an Indian tribe's power to punish tribal offenders is part of its own retained sovereignty. [80] But over the years, Congress has limited the right of tribes to engage in law enforcement, perhaps most profoundly through provisions contained in the 1968 Indian Civil Rights Act. The act limits tribal punishment in criminal cases to a year's imprisonment and a $5,000 fine, or both,[81] which as practical matter confines tribal courts to misdemeanor offenses. 

Indian Civil Rights Act

In 1968 Congress passed the Indian Civil Rights Act (ICRA)[82] after a series of Senate hearings on the administration of justice by tribal governments. The ICRA, also referred to as the Indian Bill of Rights, provides certain rights to people who are subject to the jurisdiction of a tribal government. Similar to the United States Constitution, the ICRA confers the right to free speech, press, and assembly; protection against unreasonable search and seizure; protection against prosecution for the same offense twice; the right to a speedy trial; the right to hire a lawyer in a criminal case; protections against self-incrimination; protection against excessive bail or fines; protection against cruel and inhumane punishment; and the right to equal protection of the laws and due process of the law.[83] This infringement by the Congress on the power and sovereignty of tribal governments has generated controversy surrounding the application and enforcement of the ICRA.

For several years after the enactment of the ICRA, Federal courts heard various claims under the act, such as challenges to tribal elections and enrollment, the right to vote, right to counsel, freedom of speech, search and seizure, and excessive force cases.[84] In deciding these cases pursuant to ICRA, Federal courts [h]eld that the ICRA waived the tribe's sovereign immunity with respect to each right listed in the act, thereby authorizing federal courts to resolve all disputes arising under the ICRA. [85] However, in the 1978 U.S. Supreme Court decision Santa Clara Pueblo v. Martinez[86] the Court held that the ICRA was unenforceable in the Federal courts except for writs of habeas corpus and that the act did not waive the tribe s sovereign immunity from suit in Federal court. This ruling essentially left the tribal forum (e.g., tribal court or tribal council) as the only avenue available for a person to pursue ICRA violations other than a habeas corpus action. Hence, most ICRA violations have no Federal judicial remedy and the outcome of ICRA claims heard in tribal forums is difficult to determine because many tribal court opinions are not published.

The U.S. Commission on Civil Rights conducted an examination of the ICRA beginning in 1986, including five public hearings, that resulted in a report documenting many problems associated with the implementation of the law.[87] However, the Commission concluded that in passing the Indian Civil Rights Act, the Congress did not fully take into account the practical application of many of the ICRA's provisions to a broad and diverse spectrum of tribal governments, and that it required these procedural protections of tribal governments without providing the means and resources for their implementation. [88] Underlying the Commission's conclusions was a recognition that the United States Government has established a government-to-government relationship with our nation's tribal governments; [and] that these tribal governments have retained the powers of self-government. [89] 

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