U.S. Commission on Civil Rights

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

Chapter 3

Concerns, Conclusions, and Recommendations 

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.

The Commission has previously studied administration of justice issues in South Dakota, holding hearings in 1978 in Rapid City (American Indian Issues in the State of South Dakota, July 27 28, 1978); and Washington, D.C. (Federal Bureau of Investigation-Indian Reservations; Police Practices) and releasing findings in its June 1981 report, Indian Tribes: A Continuing Quest for Survival.[1] The South Dakota Advisory Committee held factfinding meetings in 1975 and 1976 addressing law enforcement and justice concerns affecting Native Americans, and released a detailed report of findings in October 1977 (Liberty and Justice for All).[2] 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

1. 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.

Information was received by the Advisory Committee suggesting disparities in many aspects of the criminal justice system, including law enforcement stops and racial profiling, arrests, prosecutions, legal representation, and sentencing. The belief that systemic and institutionalized discrimination pervades the justice system in South Dakota cannot be ignored or lightly dismissed. Indeed, this belief is pervasive throughout the Indian community.

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. 

2. 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. 

3. 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. Some characterize the existing relationship between Native Americans and State government as adversarial. Whether true or not, the perception is so pervasive as to negatively affect State-Indian relations. 

4. 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. 

5. Federal and State civil rights oversight in South Dakota is limited. There are no Federal civil rights agencies in the State, and discrimination issues requiring Federal attention most often must be handled by regional offices out of State or in Washington, D.C. The South Dakota Human Rights Commission is limited in authority and resources. There are few viable and effective local human relations commissions in the State. 

6. 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. 

7. 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. 

8. Native Americans are underrepresented 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 decisionmaking positions that govern the administration of justice. 

9. 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. 

10. 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. 

11. 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. 

12. The town of White Clay, Nebraska, has become a symbol of oppression and exploitation for many Native Americans. This tiny community, located just a couple of miles south of Pine Ridge, 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. 

13. 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. National civil rights legal organizations are not easily accessible, and there are few such programs at the State level. 

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 disadvantage 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

1. 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. Appointments should include representatives from the Department of Justice's Civil Rights Division, Office of Justice Programs, Office of Tribal Justice, and Community Relations Service. The U.S. attorneys in affected jurisdictions should also serve. The Secretary of Interior should be requested to appoint high-level representatives from the Bureau of Indian Affairs, which has law enforcement responsibilities in Indian Country.

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 should be charged with bringing together key Federal, State, tribal, and local elected officials and law enforcement agencies to develop a plan for addressing the issues identified by the Advisory Committee and the U.S. Commission on Civil Rights. While many of the criminal justice problems relate to State jurisdiction, Federal influence is considerable due to the large number of enforcement matters that fall within its purview. The U.S. attorney, FBI, and Bureau of Indian Affairs all play major roles in law enforcement affecting Native Americans in South Dakota. The task force should also make recommendations for improving cooperation and jurisdictional agreements among the many different law enforcement agencies serving Indians in South Dakota.

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. 

2. 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. 

3. 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. Federal evaluations of contracts with tribal governments for law enforcement functions should be expanded, and recommendations for improvements should be implemented as appropriate.

4. 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. (See Indian Tribes: A Continuing Quest for Survival.) 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. An Indian civil rights section would be responsive to the unique issues of Indian Country discrimination. 

5. 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. Some of the information presented to the Advisory Committee suggested that racism might be a factor in certain violent crimes. In any event, this enforcement tool should be made available to Federal and State prosecutors. 

6. 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. This includes such factors as law enforcement stops, racial profiling, arrests, bail, legal representation, pleas, prosecutions, jury selection and composition, and sentencing. Analysis should be conducted to determine if race is a factor associated with the decision to prosecute in arrests for various categories of criminal violations. The exercise of discretionary authority by justice system officials must be closely examined for potential bias. The adequacy of current public defender and court-appointed attorney systems should be reviewed. The discriminatory impacts of Federal sentencing guidelines must be rigorously scrutinized. Racial factors affecting the administration of justice must be eliminated to restore full confidence in both the Federal and State court systems. Carefully constructed research methodology must be designed to assess accurately whether disparities exist. (The Department of Justice's Bureau of Justice Statistics might be an appropriate entity to design and conduct some of this research.) 

7. 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. 

8. 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. 

9. Tribal and Native American organizations should expand voter registration and educational efforts, and promote Native American candidates for elective office in South Dakota. 

10. 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. Meaningful and constructive dialogue must be established to accomplish this objective. This will not be an easy task, based on past history, but it is essential to the healing process. 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. 

11. 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. These entities should be designed to encourage citizen participation in public policy (including Native Americans). Effective civilian oversight and complaint procedures for law enforcement should be implemented. Community-based policing methods should also be promulgated or expanded. Law enforcement agencies, prosecutors, and court systems must aggressively recruit Native Americans at all levels of employment. And comprehensive orientation on Indian Country culture and history should be required of all law enforcement and justice personnel. 

12. The State of South Dakota should establish a statewide public defender program with adequate staffing and funding resources. 

13. Tribal governments should consider establishing civil rights offices to assist their constituents in seeking redress for discrimination problems. These offices could serve as referral agencies for complaints and as clearinghouses for information on discrimination. They might also develop the capacity for providing mediation and conciliation services. Tribal authorities might also seek out resources to provide greater legal assistance and counsel to victims of discrimination. 

14. 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. 

15. 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, especially in light of the extensive and disturbing testimony received by the Advisory Committee at its December 1999 forum. The issue of Federal sentencing guidelines is a major current issue that has not been previously addressed by the Commission, and is heavily affecting Indian Country. The Commission should focus on this problem, including legal research and briefings. It should also consider holding full hearings in Indian Country on issues of discrimination and unequal protection of the laws. Native American civil rights and tribal leaders should be consulted before finalizing the project design.