Civil Rights Enforcement Efforts in North Dakota
State, Tribal, and Local Government
Perspectives on Discrimination
U.S. Attorney’s Office
Schneider, United States attorney, District of North Dakota, in his presentation
at a planning meeting of the North Dakota Advisory Committee, stated:
protection of the civil rights of the citizens of North Dakota is one of the
highest callings of the Office of the United States Attorney. It is our task not
only to protect the dignity of our citizens, but to elevate the consciousness of
our community. Beyond righting these wrongs and promoting healing, our task is
to demonstrate that the degradation of our peoples will not be tolerated.
U.S. attorney prosecutes all Federal crimes that are committed in North Dakota,
collects money that is owed the Federal Government, and defends the United
States from suits brought against it.
Many of the suits are civil rights complaints brought by employees who work for
Federal agencies and believe they have suffered employment discrimination.
Other civil rights cases are taken by the Civil Rights Division of the U.S.
Department of Justice in Washington, D.C., although complaints can be initiated
in the local district of North Dakota.
Since appointment as U.S. attorney, Mr. Schneider said there have only been two
Federal civil rights cases that have gone to trial; one was a fair housing case
and the other a freedom of access to entrances case.
As U.S. attorney, it is his
responsibility to ensure that everyone’s rights are protected and attainable.
U.S. Attorney Schneider provided the Advisory Committee examples of complaints
he had received such as no wheelchair accessibility to restrooms in a business,
and city of Dickinson court house inaccessibility to people with disabilities.
He also stated that there have been many instances of alleged police brutality
that have come to his attention. Half of the crimes prosecuted arise out of the
four major Indian reservations in the State, and he indicated that he would like
to see a change in staffing to include individuals other than white Protestants. His concern from a Federal
perspective is that North Dakota citizens are not contacting his office
regarding discrimination complaints, and even if they did the U.S. Attorney’s
Office is not equipped to handle them. He was also concerned that North Dakota
does not have a known and readily accessible means of redress for people who are
experiencing discrimination. They have no agency to contact to receive relief or
at least a determination concerning their complaint, he said.
of the Governor
Deborah Painte, executive director
of the North Dakota Commission on Indian Affairs, and a member of the
Governor’s cabinet, spoke on behalf of Governor Schafer during both
Ms. Painte informed the North Dakota Advisory Committee that the Governor had
received the invitation to submit a written statement, and it would be
forthcoming within the next week or so.
She began her presentation by saying, “He [the Governor] believes there is
discrimination,” but raised the question to what extent discrimination exists.
However, Ms. Painte could not refer to any specific proactive efforts the
Governor had taken to try to answer the question, but said that he testified in
support of the 1997 interim study resolution enacted by the State legislature to
study discrimination in the State and to ascertain if there is a need for a
human rights commission.
She shared an example of perceived discrimination and how State government acted
in a responsible manner:
A vehicle-safety inspection checkpoint located 30 miles north of the Standing Rock Sioux Reservation alarmed a number of Indian people because the checkpoint appeared to be coincidentally set up 4 days before the opening of the United Tribes Pow Wow. The people’s concerns were taken to Tribal Chairman Jesse Taken Alive, who then contacted Governor Schafer’s office. [Ms. Painte also received complaints regarding the checkpoint and responded to questions.] Governor Schafer and Highway Patrol Superintendent Jim Hughes met with Chairman Taken Alive on quick notice. In response, and to improve communication and avoid misunderstanding or bad feelings, the patrol agreed to notify tribal headquarters hours before similar safety inspections were conducted on routes near reservations. Chairman Taken Alive, satisfied with the explanation and change in procedure, shared the information with other tribal leaders and members of the Standing Rock Sioux Tribe.
Ms. Painte said that “resolving
this incident did not require a formal process or the involvement of some
governing agency or commission. It simply required open lines of communication
and good will on the sides of all parties.”
She told the Advisory Committee
that Governor Schafer is committed to improving State relationships with the
tribes, and the Governor believes that progress has been made.
She cited further examples of the Governor’s commitment to address
discrimination, including his signing a State-tribal accord with the Standing
Rock Sioux Tribe and supporting the development of similar accords with the
Three Affiliated, Turtle Mountain, and Spirit Lake Tribes.
She also mentioned “Capitol for a Day,” which brings all the cabinet
directors and Governor’s staff to a single community for a day, to engage in
dialogue between citizens and community leaders.
Ms. Painte said the Governor realizes that incidents of discrimination can and
do occur despite such concerted efforts at improving relationships, and they can
happen not only on the basis of race, but for other reasons such as age or
marital status. To better address the
issue of discrimination, the North Dakota Department of Labor will come under
the Governor’s direct administration beginning July 1, 1999.
The change will allow the State to look at its responsibilities toward
discrimination with new perspectives and ideas.
In addition, the Governor’s Office is open to suggestions for improving the
handling of those types of cases.
Concerning housing, she said the
U.S. Department of Housing and Urban Development has funds available to contract
with agencies to provide housing discrimination complaint processing under State
and Federal laws. It might be possible, she said, for the North Dakota
Department of Labor to receive additional money by processing housing
of the Attorney General
Heidi Heitkamp, attorney general,
State of North Dakota, explained that, in her professional career, she has not
had extensive legal experience in the area of equal protection and that civil
rights is not one of her specialties. However, she said she had some ideas on
improving the way the State handles discrimination complaints, and thoughts on
some important policy initiatives, in addition to strengthening the relationship
between community members and the State.
Attorney General Heitkamp said that she has come to realize that the Office of
Attorney General is the agency that is frequently called when people have
problems and do not know where else to turn.
For that reason, the office has become somewhat of a clearinghouse for issues.
And it also evaluates where there are gaps in providing service.
The attorney general said that as
Federal dollars continue to shrink:
it becomes more and more difficult for us to find referral points for the concerns that are expressed to us by citizens in the State. [As] a representative of the people of the State of North Dakota [the Office of Attorney General], must help people who, somehow, have gotten missed and have fallen through the cracks, those who have concerns and complaints regarding situations that they should not have to experience in this country, and certainly not in our State.
Office of Attorney General is the logical place for North Dakota citizens to
turn when they have a legal problem, and for that reason her office fields many
calls from private citizens who believe their rights have been violated.
By law, the Office of Attorney General can only provide legal advice and
assistance to State agencies, officials, and employees in certain political
subdivisions; however, not all citizens understand that.
The office does not keep statistics on the number and the types of
discrimination calls received; however, calls are not infrequent, and based on
the information received from those calls, at least some of those complaints
appear to have merit. She said a recent report
released by the U.S. Department of Housing and Urban Development illustrated
that North Dakota does face some discrimination issues.
When calls are received, they are referred to the best of the staff’s ability
to the appropriate agency or individual. Unfortunately, in many instances, there
is little hope that the referral will result in any effective remedial action
because of the lack of an effective enforcement mechanism.
While North Dakota’s Human Rights Act is quite broad, it provides limited
ability for those who experience discrimination to get effective relief. The two
mechanisms under the act are:
aggrieved individual may bring a lawsuit.
State labor commissioner may receive complaints about employment practices
and attempt to obtain voluntary compliance with the law through informal
advice, negotiations, or conciliation.
There are problems with both
mechanisms. Attorney General Heitkamp said lawsuits are expensive and
time-consuming for all parties involved. Even the first step in pursuing a
lawsuit—finding a lawyer—can be formidable due to the lack of or
unavailability of attorneys.
She further explained:
of discrimination seldom have financial resources to saunter into a law office
and obtain a top lawyer of their choice. Instead, [they] have to summon their
courage to enter that very foreign environment of the courtroom. Once that
hurdle is crossed, the discrimination victim will probably have to be willing to
publicly reveal a great deal of private information and endure a long and
Attorney General Heitkamp said
that the process of using the courts to settle a matter like this is also costly
for taxpayers, and more cost-effective methods can be devised that will protect
petitioners as well as the respondent.
She said the Office of Attorney
General is very interested in getting additional help to guarantee that citizens
who file complaints are referred to the appropriate agency and have an
opportunity for enforcement of human rights laws.
There is no requirement that assistance provided by the labor commissioner will
bind either party. The problem with relying on this mechanism to prevent and remedy discrimination is that the informal
process is purely voluntary.
In concluding her presentation,
the attorney general told of a Native American youth who expressed hurt and
dismay after she and other Native American youth were followed in a Minot
convenience store while purchasing snacks.
She said listening to the student tell of that event reminded her, once again,
how hateful that kind of message can be to a young person.
Dakota State Legislature
State legislators made
presentations before the North Dakota Advisory Committee during both factfinding
meetings, and their views are as follows:
Scot Kelsh of Fargo, North Dakota
House of Representatives, said the Americans with Disabilities Act, major civil
rights legislation passed this decade, provides access to an entire group of
people who previously were denied it. The general population currently sees the
civil rights issue as somewhat cloudy, and two things need to happen: (1)
address the discrimination problem and (2) prevent the decay of progress already
Every citizen, as well as noncitizens who come to the United States, should be
granted the same rights and opportunities.
William Kretschmar of Venturia,
North Dakota House of Representatives, discussed constitutional rights of North
Dakota citizens, and said that if North Dakota establishes a commission, it
should continually remind us of the great privileges of citizenship and how
those privileges can, should, and must be maintained if our form of government
is going to continue.
Representative Kretschmar explained that emphasis should be placed first on
issues such as the failures of cities, school systems, and even parenting to
assure a stable society.
Marv Mutzenberger of Bismarck,
North Dakota House of Representatives, explained that he represents a highly
urban district with 13,000 residents. Within that district, about 600 people are
Native American, which is the largest number of Native Americans in any district
in the State, except those districts that have reservations within them.
There are also 1,400 mobile homes and 1,800 apartments constituting some of the
poorest people in the district. Burleigh County Housing Authority has low-income
housing in the district for well above 500 people, in addition to a senior
facility that houses approximately 100, and another facility under construction. The district also has
several total care and independent living facilities. Representative
Mutzenberger explained, “What I’m really saying is that we have a very high
percentage of very vulnerable people, people who have less voice, people who
have less power, people who have less mobility . . . .”
He said to determine the extent of
discrimination is very difficult and he knew of no social study that has
attempted to determine the amount of discrimination that exists in the part of
the State he represents, or any part of the State, for that matter.
Native Americans, women, and
people with disabilities absolutely experience some discrimination,
Representative Mutzenberger said.
But he said he doubted that mechanisms to enforce discrimination regulations
exist in North Dakota, and if they do, people do not know about them.
The North Dakota Department of Labor has some ears, but probably no teeth; and
the Denver District Office of the U.S. Equal Employment Opportunity Commission
is a long way away for his constituents, which presents the question of who is
responsible for tracking complaints, providing education, and acting as an
Darrell Nottestad of Grand Forks,
North Dakota House of Representatives, said that North Dakotans would like to
believe that few violations of civil rights exist in the State. However, the
State is not free of problems, and violations do exist. Many do not reach a
point of public knowledge because the recipients are often faceless and, thus
are not newsworthy in the eyes of the media.
Cathy Rydell of Bismarck, North
Dakota House of Representatives, stated that North Dakota is only one of two
States that does not have a human rights commission; but there is a bigger
issue than that for North Dakota, and that is the State’s uniqueness. Regarding whether that
uniqueness should carry over in the fact that North Dakota does not a have a
formal commission, she said “I’m not sure that’s a leap I wanted to make
either,” and that may be one of the reasons why North Dakota has not followed
the other 48 States that have commissions.
A good human rights commission could be in place, but unless information gets
out to the public, it does not do anyone any good.
Although much of what she has
experienced with regard to discrimination in the State is anecdotal,
Representative Rydell expressed her ongoing amazement regarding people she knows
personally who are intelligent, compassionate, caring, and church-going, but who
will make racist or discriminatory statements. When she tries to analyze
it, she wonders if it is generational, due to national heritage or family
values, or media driven, she said.
Representative Rydell experienced firsthand hearing derogatory remarks made
about an African American strictly because of that individual’s color, and
also noted that discrimination occurs on a regular basis against Native
Americans. She also told the Committee she has personally experienced gender
discrimination in her own career.
Representative Rydell closed her remarks by saying that she thought tools are
available to address discrimination through agencies such as the North Dakota
Department of Labor, and questioned whether people are aware of services, if the
services are coordinated, or duplicative, and if there are enough financial
resources to get people to those services.
Two representatives were asked if
they were aware of or if they could share with the North Dakota Advisory
Committee Governor Schafer’s position on the establishment of a human rights
commission in North Dakota. Both stated they had never heard a position coming
from the Governor.
Both representatives also agreed
that if some form of consolidation of commissions and services could be
developed without costing the State another penny, the legislature would be more
There is also the fear that a human rights commission would unfairly go after
employers accused of discrimination. Representative Rydell said there would need
to be coalition building among organizations, major business interests, and
small business owners. These entities have to be brought to the table and have
demonstrated to them how they can benefit.
Leadership of North Dakota
Native Americans work and live in
North Dakota cities, rural communities, and on Indian reservations.
In each of these settings, they deserve and are entitled to fair and equal
treatment; however, many Native Americans in the State have experienced numerous
forms of discrimination.
Russell D. Mason, Sr., former
chairman of the Three Affiliated Tribes said, “For our tribal populations,
civil rights enforcement has been infrequent, at best, in North Dakota.”
He said problems have persisted for tribal members in obtaining housing,
employment, and credit. Despite the presence of some legal mechanisms for
redress under North Dakota law, there is a great reluctance on the part of those
harmed to try to do anything about their problems, and few attorneys willing to
tackle such cases, which are generally not financially rewarding.
Chairman Mason stated that Indian
tribes and nations in North Dakota, including the Three Affiliated Tribes and
its members, have suffered from discriminatory treatment. A more detailed view
is presented in appendix E.
David Gipp, president of United
Tribes Technical College in Bismarck, also shared his experiences and views in
his written testimony to the North Dakota Advisory Committee.
President Gipp, as expressed in appendix F, said that discrimination against
Native Americans in the State has been ongoing. Discrimination ranges from “we
do not rent to Indians” notices that appeared over 20 years ago in a Bismarck
hotel, to United Tribes Technical College students being followed today by
security personnel at the local malls and stores in Bismarck.
It is apparent that incidents of
discrimination against North Dakota Native Americans continue in the areas of
public accommodations, services, housing, credit, and most critically
Deborah Painte, executive director
of the North Dakota Indian Affairs Commission, told the North Dakota Advisory
Committee that the functions of the commission are very broad. The
commission’s role is to improve relationships between State and tribal
governments, and Native American and non-Native American communities, and to
provide educational awareness activities on culture. In some instances the
North Dakota Indian Affairs Commission will serve in an informal capacity, such
as a mediator or an advocate. Although she does not directly represent Native
American people since she is not directly elected by Native American people, Ms.
Painte stated that she does advocate for Indian issues and assists in making
State government and others aware of Indian needs, concerns, and perspectives. The Indian Affairs
Commission does receive discrimination-related concerns from Indian people who
contact the office.
Ms. Painte said, “More often than not, others who have called our office
generally do not pursue their complaints after they find out that they have to
go out of State, in some instances, or for local referrals, they have said they
have already talked to them [the referral agency].”
She said her impression was that they were not satisfied with local or
The Indian Affairs Commission does not handle discrimination complaints, because it does not have any regulatory or enforcement powers. It receives all types of complaints, which are referred to various agencies as appropriate. The Indian Affairs Commission has compiled a list of resources and agencies, both in-State and out-of-State, that handle various types of discrimination complaints. These agencies are contacted when someone comes to the commission with a complaint, and the list of resources and agencies is also provided to the complainant. The commission does not specifically maintain an official log of complaints; however, complaints received are filed along with background information of the incident. Individuals are also advised to contact their State district legislators to inform them of the nature and type of discrimination that occurred. This action is recommended so that the legislative members will become aware of the discrimination problem in North Dakota and understand the need for a local solution in the State. This step was implemented after the human rights commission enabling legislation failed in the State legislature in 1995. Some legislators said they did not know whether the extent of discrimination justified a human rights commission because there were existing remedies, Federal and State laws, and no one had ever contacted them about discrimination. Unfortunately, since the commission does not compile any statistics, it is difficult and almost impossible to determine the number or types of complaints received annually. Ms. Painte shared examples of discrimination brought to the attention of the Indian Affairs Commission Office:
against a Native American contractor who was the low bidder on a project,
but a nonminority was informed of the contractor’s bid and allowed to
underbid him by $6.
discrimination occurred where an individual was passed over for promotions
and was subject to racial slurs in the workplace. Some comments included,
“Go back to the reservation to your squaw,” “Go back to the
reservation and eat dog,” and “All Indian women are whores.” The
employee informed his supervisors about these comments and it was decided
the problem would be handled quietly through education. A few days later,
the employee found animal feces in his waste basket. He was harassed and
charged with infractions he did not commit. His complaint was investigated
by the EEOC; however, after his supervisor was contacted by the EEOC, he was
terminated 3 days later. In all, the process took well over 2 years before
it was resolved. The employee received minimal compensation and suffered
frustration and personal humiliation, and the employer accepted no
American students expressed to their parents that one non-Native American
student continually harassed them with racial slurs. When they voiced their
complaints to the school administration, they were made to feel that they
had somehow antagonized the situation and were the instigators. The Indian
Affairs Commission was contacted and asked to attend a parent meeting to
identify solutions. Two meetings were held, one with a U.S. Department of
Justice investigator, and the final outcome was that a racial harassment
policy was implemented by the school district.
Indian Affairs Commission was actively involved with attempting to resolve these
situations and/or follow up with the existing agencies that had authority in
those areas. Ms. Painte said it was a very frustrating and long process using
the existing Federal and State agencies, because it could take years to obtain a
remedy. Further, those discrimination incidents that were shared with the North
Dakota Advisory Committee reflect that Federal channels were not adequate.
The commission also serves as a
liaison between tribal government and State government, and although she does
not represent Native American people as an elected tribal official, her sense is
that the dialogue between State and tribal government is generally very good and
has remained positive despite extremely sensitive issues and incidents.
Dakota Supreme Court Commission on Gender Fairness in the Courts
Sandi Tabor, private attorney and
member of the North Dakota Supreme Court Commission on Gender Fairness in the
Courts, said that in 1987, North Dakota was one of the first States in the
Nation to establish a subcommittee to study gender fairness in the judicial
system under the auspices of the Supreme Court Judicial Planning Committee.
The commission began its work in March 1994, and each member was challenged
under the following premise:
Decisions made or actions taken based on preconceived notions about the nature, roles, and abilities of women and men rather than upon evaluation of each individual situation strike at the heart of the judicial system that promises fairness and impartiality. Gender inequities frustrate and impugn the struggle by judges, lawyers, and litigants alike to achieve justice.
Supreme Court Commission began its mission of collecting data using three
processes. These included sending a survey to judges, attorneys, and court
personnel; conducting public hearings; and coordinating gender fairness in the
courtroom seminars for attorneys and judges.
Through the hearings, the
commission learned that people were concerned about the impact of court
unification on access issues, especially in the area of domestic violence.
Others voiced concerns about child support and custody issues. There was also
some testimony presented about inappropriate courtroom behavior on the part of
attorneys and judges.
The subcommittee of lawyers and judges reviewed court records and other related
data, including available anecdotal and statistical information concerning
The purpose of the seminars was to
provide an education program for attorneys during the information-gathering
phase, which defined bias behavior and provided illustrations, but which might
have also encouraged dialogue and insight on the climate of courts today.
Ms. Tabor told the North Dakota Advisory Committee that through these seminars,
she has witnessed the confusion of attorneys and judges about bias behavior.
She also said her belief is that gender bias is far more subtle than it was 15
or even 5 years ago, and consequently, it is far more difficult to resolve.
The Gender Fairness Commission
found information pointing to the existence of gender inequities in North Dakota
affecting both men and women, but more negatively affecting women.
Findings of the subcommittee included differential treatment (1) toward women
attorneys in and out of the courtroom, (2) toward women by the court in domestic
abuse situations, and (3) toward women in the selection of jurors and foremen. Based on the findings,
the subcommittee made recommendations for the formation of a commission to study
gender fairness in more detail in North Dakota.
In the past 15 years, those
practicing law in North Dakota have seen the number of women in the profession
increase. In 1974 there were only 3 women practicing law in North Dakota. In
1980 only 67 women practiced law; but by 1995, the number increased by 260
percent to total 241 women.
Ms. Tabor said that with the influx of women entering the profession as officers
of the court, many attorneys have discovered the behaviors that were once
tolerated will be challenged, and challenges to the status quo create
controversy. As a result of these findings, the North Dakota State Bar
Association and the North Dakota Supreme Court have established a committee to
look at mediation and arbitration and at the different mechanisms to take care
of some of the concerns.
of Intergovernmental Assistance
Richard Gray, Americans with
Disabilities Act/building codes program manager, North Dakota Office of
Intergovernmental Assistance, told the North Dakota Advisory Committee that his
agency is involved with several programs, including the Americans with
Disabilities Act (ADA), section 504 of the Rehabilitation Act, the Fair Housing
Act, the State’s Consolidated Plan for the use of U.S. Department of Housing
and Urban Development (HUD) funds for the Community Development Block Grant, and
the Emergency Shelter Grant Program.
In 1992 the Housing Finance Agency for North Dakota and the Office of
Intergovernmental Assistance contracted for a housing needs study to provide
information for the State’s Comprehensive Housing Affordability Strategy, now
referred to as the Consolidated Plan.
Each State must write a 5-year
Consolidated Plan, required by HUD, and the Office of Intergovernmental
Assistance is the designated agency responsible for North Dakota.
In developing the Consolidated Plan, the Office of Intergovernmental Assistance
conducted two public hearings in each of the State’s eight planning regions in
1993 and 1994. Participants in every
region, both years, clearly communicated the need for the State to enact a State
fair housing law that is substantially equivalent to the Federal Fair Housing
In addition to the Consolidated
Plan, each State also has to develop a Fair Housing Plan. Specific components of
the Fair Housing Plan include the identification and analysis of impediments to
fair housing choice.
To develop the Fair Housing Plan, a survey was designed to identify both facts
and perceptions about housing discrimination in North Dakota.
The results of the survey indicated that most respondents believe Native
Americans face the most discrimination, and in fact, most of the actual examples
of discrimination received were concerning Native Americans.
Large families, low-income persons or families, single mothers, persons with
disabilities, families with children, Hispanics, persons below age 30, and the
elderly followed Native Americans in experiencing discrimination.
Very few respondents believed the elderly face any type of discrimination in
The Housing Needs Assessment
conducted in 1992 identified under its Action Area the following needs:
need to provide training on the Fair Housing Accessibility Guidelines and
enforce mandates requiring accessible housing for people with disabilities.
need to encourage the creation of a State Fair Housing Act and the creation
of a human rights commission to enforce it.
need to provide training on the Federal Fair Housing Act.
Mr. Gray said the next step would
be to identify ways to overcome some of the impediments. Plans are to pursue the
housing issue over time as the Office of Intergovernmental Assistance deals with
However, he was not in any position to say that any particular agency in North
Dakota is responsible for carrying out the recommendations of the Office of
Intergovernmental Assistance. The North Dakota Office of Intergovernmental
Assistance is responsible for compiling the information and data and making the
needs known, working with groups to identify and target the needs, and helping
and encouraging organizations to take action.
Therefore, when calls are received from individuals and attorneys concerning
fair housing and the cost of fair housing investigations, and when complaints
are received, Mr. Gray said is office tries to tell people to get the grassroots
organizations included, not the State.
Mr. Gray also said the grassroots organizations are the ones that have to
organize to bring the issue forward.
“Unfortunately, the push cannot start from the top down, it has got to start
from the bottom up, which creates an awareness and everyone shares a common
opinion, a common concern that there is a need for a fair housing law in North
He added, “It is time for the grassroots organizations to come together, bring
their organizational structures together and take something to the
The Office of Intergovernmental
Assistance primarily provides technical assistance in terms of educating people
on fair housing issues.
When a housing complaint is received, the citizen is given the toll-free number
to HUD’s, Denver office, and it is up to the individual to make the initial
Mr. Gray said, “If [a] complaint
falls under section 504 of the Rehabilitation Act, which addresses disabilities,
the Office of Intergovernmental Assistance has a responsibility as a State
agency distributing Federal dollars to actually monitor compliance of our
grantees with various aspects of the 504 requirements.”
The agency provides information and tries to get both parties talking to each
other. As a last resort, individuals can complete a 504 complaint form which
would be sent to HUD.
Mr. Gray said he receives numerous ADA complaints and attempts to provide
education for both parties.
With regard to section 504 of the Rehabilitation Act and the ADA, the Office of
Intergovernmental Assistance receives numerous inquiries from rural areas, but
people generally are afraid to do anything official because they live and work
in those small communities and they do not want to rock the boat, he said.
To summarize, the Office of Intergovernmental Assistance’s links are either
the U.S. Department of Justice, for ADA issues concerning agencies that receive
Federal funds; HUD’s Office of Community Planning and Development Office for
issues concerning program and facility accessibility discrimination; and HUD’s
Fair Housing Equal Opportunity Office for housing discrimination complaints.
of the Mayor, City of Fargo
Fargo Mayor Bruce Furness
addressed the North Dakota Advisory Committee at the Fargo factfinding meeting
stating that cultural diversity is not viewed as a problem in the city of Fargo
as evidenced by the low number of discrimination complaints.
“We want to think of it as a positive and welcome these people into our
community and to understand their cultures and celebrate our differences and
learn from them.”
Mayor Furness was particularly aware of discrimination against Native Americans
and said that discrimination is probably still occurring.
He explained that he was not saying that discrimination does not exist, but
complaints are not coming into his office.
He admitted that the opportunity for discrimination to occur is escalating
because Fargo’s minority population is increasing.
In 1980 approximately 2 percent of Fargo’s population were minorities; and by
1990 about 4 percent or 4,400 residents were minorities.
The city has reacted to the increased minority population by trying to accept it
and work with the various minority populations who now live in Fargo; and part
of that acceptance, said Mayor Furness, “is to try to understand their needs .
. . and to try to help them understand our needs and work together so that we
can really celebrate the cultural diversity that we have in our community rather
than consider it to be a problem.”
To illustrate their efforts, Mayor
Furness explained the city’s use of the Cultural Diversity Project, a
nonprofit organization that conducts diversity and multiethnic leadership
training, in an attempt to educate people about the various cultures in the
Fargo community, and to make people aware of the changes going on in the
community. The Cultural Diversity Project is also an attempt to get people to
work together so that everyone can live in harmony in the community.
Some specific efforts include a translation service that enhances communication
between new minority residents, other organizations within the community, and
agencies such as the city Department of Health and the police department.
A second initiative of the Cultural Diversity Project involves bringing together
city government department heads and representatives of various cultures within
the Fargo community to promote understanding and determine if the city
government was putting up hurdles, and if so, what the city could do to minimize
or limit them.
Mayor Furness told the North Dakota Advisory Committee that the city has not
addressed the gang issue or cultural diversity training within the ranks of the
police department as they specifically relate to Hispanics.
However, some city departments have gone through cultural diversity training
provided through the U.S. Department of Justice, and there is a goal for every
employee to participate in a training class.
However, when asked how an
individual would file a complaint with the City of Fargo, Mayor Furness said the
city does not have a formal mechanism in place.
He explained that the City of Fargo had no plans to set up a function of
government to handle complaints at the city level, but if some type of function
were established at the State level, Fargo would establish a similar operation.
He added that during the discussions with various ethnic groups, the question of
a vehicle to file a complaint was not raised, nor did a suggestion come up, and
conceded that he could envision where a conclusion might be, “there’s no
place to register a complaint, then it doesn’t do any good to have a
of Community Relations, City of Grand Forks
Holly Jeanotte Marion, director,
Office of Community Relations,
City of Grand Forks, stated that she works with individuals who have experienced
The Office of Community Relations was established to protect not only the rights
of individuals who fall within the
government’s definition of protected classes,
but to address sexual harassment, disability, social, economic, and public
assistance issues where people may be treated differently. For the past 4 1/2
years, the Office of Community Relations has been the only local government
office in the State to respond to various discrimination complaints, except for
employment discrimination complaints which are handled by the North Dakota
Department of Labor.
to the North Dakota Flood of 1997, funds were reallocated and the office was
closed in December 1997. Ms. Marion was the office’s only staff member. The
Office of Community Relations had served all four Native American reservations
in North Dakota, and additional inquiries and complaints were received from
Fargo, Bismarck, Devils Lake, Williston, and Jamestown. Because of the
office’s ability to assist people, many former college students who continued
to have ties with the Grand Forks community contacted the office. Those calls
came from places as far away as Georgia, Texas, South Dakota, and Montana.
In 1992 Ms. Marion investigated 31
complaints and responded to and referred 75 to 100 telephone inquiries. Between
1992 and 1996, the number of complaints received rose dramatically, from 31 to
167. In 1997 (January through September) the office received 71 complaints (see
table 3). The complaints primarily concerned housing discrimination, sexual
harassment, and racial discrimination. But the Office of Community Relations
accepted discrimination complaints in a broad range of categories as also shown
in table 3. The myriad and number of complaints clearly demonstrates that people
desperately need assistance, information, and an agency equipped to receive,
process, and enforce the rights of North Dakota citizens. She also attributed
the growth of the number of complaints filed to the fact that people were
becoming more aware of the Office of Community Relations.
Ms. Marion said statistics
surrounding disabled issues would be tenfold if people were not afraid of losing
their housing or employment once they complained. Many people with disabilities
are told that the system is doing them a favor and they should be grateful;
therefore, they do not file complaints.
Table 3 clearly shows that complaints are growing. Ms. Marion also said she has
seen a difference in treatment of minority citizens. She said the City of Grand
Forks has over 2,000 minorities, but her data indicate that single mothers with
children suffer the most discrimination.
Ms. Marion explained that her
duties are to mediate, conciliate, and refer. Obstacles for relief are numerous,
such as attorneys who will not sue businessmen and long and tedious litigation
for disparate treatment or discrimination. She shares one case:
An African American woman, employed in Grand Forks, was approached by her supervisor who wore a bed sheet and a cross, and called her “Buckwheat” when he wanted her attention, while in the presence of customers. A comment was made to her by the supervisor, “If Lincoln hadn’t freed the slaves, what would you have done?” The employee was subsequently fired and the incident was referred to the North Dakota Department of Labor. The case was investigated (which took about 10 months), and a no-cause determination was issued. The complaint was appealed to the North Dakota Job Service, and at the hearing, an attorney represented the employer, while no one represented the employee. The case was denied because the employee was not specifically called black and there was no direct proof that she was fired because of her race. Fortunately, before another appeal took place, the EEOC overturned the North Dakota Department of Labor’s decision. The young lady accepted a settlement and moved away.
Marion had requested that as part of the settlement, the incident be published
in the newspaper; however, that request was denied. Ms. Marion said these are
not isolated cases and similar ones occur in other cities throughout the State.
She summarized that resources and staff are sorely needed to do followup, and mediation and conciliation are effective. Education and avenues or litigation should be major priorities. She concluded that the majority of minorities are satisfied with the status quo because they have to be. If they speak up, they will “rock the boat and fall off,” and consequently, they are reluctant to come forward and will not indicate their need for assistance. The reality is that North Dakota is a rural State, and when discussion ensues concerning civil rights, people align it with Martin Luther King, Jr., and blacks, not rights for all, she concluded.
Table 3 Office of Community Relations, City of Grand Forks, Discrimination Complaints Filed 1992–97
Bases of complaints
Holly Jeanotte Marion,
director, Office of Community Relations, City of Grand Forks.
Data compiled for
months January through September. The office was inoperable for 5 months
and staff were reassigned due to the North Dakota Flood of 1997. If the
office had been fully operational, staff expected the total to exceed 200
John Schneider, statement before the North Dakota Advisory Committee to the
U.S. Commission on Civil Rights, at its planning meeting in Fargo, ND, Dec.
7, 1995, p. 1. Mr. Schneider has held the position of U.S. attorney since
John Schneider, transcript of factfinding meeting conducted by the North
Dakota Advisory Committee to the U.S. Commission on Civil Rights in Fargo,
ND, Sept. 24, 1997, vol. 3, p. 5 (hereafter cited as Transcript
Ibid., pp. 5–6.
Clare Hochhalter, transcript of factfinding meeting conducted by the North
Dakota Advisory Committee to the U.S. Commission on Civil Rights in
Bismarck, ND, May 16, 1996, p. 127 (hereafter cited as Transcript 2).
John Schneider, Transcript 3, vol.
3, p. 6. The U.S. Attorney’s Office in North Dakota, the smallest in
staffing in the country, is an agency of the U.S. Department of Justice.
Ibid., p. 10.
Ibid., p. 8.
Ibid., p. 13. Staff of the U.S. Attorney’s Office include clerical
workers; attorneys; FBI drug enforcement or alcohol, firearms and tobacco
clerks; judges; U.S. Marshals, etc. However, none of the staff was Native
Ibid., p. 11.
Deborah Painte represented the Governor at both the Bismarck and Fargo
factfinding meetings conducted by the North Dakota Advisory Committee.
Deborah Painte, Transcript 2, p.
Deborah Painte, Transcript 3, vol.
1, p. 40.
Ibid., p. 40.
Ibid., pp. 27–28. This incident occurred on Sept. 2, 1997, along Highway
1806, south of Mandan, ND. The majority of traffic on the road is local,
although tribal members do travel the route on their way to the Bismarck
area. Travel of tribal people increases significantly during the Pow Wow.
Patrols had been conducted in that vicinity for 20 years without any
Ibid., pp. 28–29. Safety checkpoint procedures require patrol officers to
check every 5th or 10th car, the exact number is determined beforehand. This
procedure avoids singling out any one individual or a class of people.
Ibid., p. 29.
Ibid., p. 29. The next “Capitol for a Day” was scheduled for New Town
where leaders of the Three Affiliated Tribes would have an opportunity to
meet with members of the Governor’s cabinet.
Ibid., p. 30.
Ibid., p. 32. The 1995 legislature passed legislation to make the
commissioner of labor an appointee of the Governor, once the current term
has expired. North Dakota Department of Labor, 1995–1997
Biennial Report, released Dec. 1, 1997, p. 1.
Ibid., p. 30.
Ibid., pp. 32–33.
Heidi Heitkamp, Transcript 2, p.
Ibid., pp. 278–79.
Ibid., p. 282.
Ibid., p. 283.
Ibid., p. 284.
Ibid., p. 285.
Ibid., p. 289.
Ibid., pp. 284–85.
Ibid., pp. 279–80.
Ibid., pp. 280–81.
Scot Kelsh, Transcript 3, vol. 2,
pp. 118–119. Representative Kelsh serves on the Interim Judiciary
Committee currently studying discrimination in the State.
William Kretschmar, Transcript 2,
Ibid., p. 113.
Marv Mutzenberger, Transcript 2,
pp. 116–17. Mr. Mutzenberger became a State senator in 1997.
Ibid., p. 117.
Ibid., pp. 117–18.
Ibid., p. 118.
Ibid. He said his constituents do not know what to do or where to go.
Darrell Nottestad, Transcript 3,
vol. 2, p. 115.
Cathy Rydell, Transcript 2, p.
Ibid., pp. 120–21. One unique aspect of North Dakota is that it is the
only State that does not have voter registration. Ibid., p. 121.
Ibid., p. 121.
Ibid., p. 122.
Ibid., p. 124.
Ibid., pp. 124–25.
Cathy Rydell and William Kretschmar, Transcript
2, p. 149.
Ibid., pp. 154–55.
Cathy Rydell, Transcript 2, p.
Four Indian reservations—Fort Berthold, Spirit Lake, Standing Rock, and
Turtle Mountain—and the Trenton Indian Service Area, are located in North
Russell D. Mason, Sr., chairman, Three Affiliated Tribes, Fort Berthold
Indian Reservation, letter to John F. Dulles, regional director, U.S.
Commission on Civil Rights, Rocky Mountain Regional Office, Sept. 16, 1997.
Russell D. Mason, chairman, Three Affiliated Tribes, Fort Berthold Indian
Reservation, New Town, ND, written statement to the North Dakota Advisory
Committee to the U.S. Commission on Civil Rights, Sept. 24, 1997, pp. 1–5.
David Gipp, president, United Tribes Technical College, Bismarck, ND,
written testimony to the North Dakota Advisory Committee to the U.S.
Commission on Civil Rights, Sept. 24, 1997, pp. 1–3.
Deborah Painte, Transcript 3, vol.
1, pp. 37–38.
Ibid., p. 46. Ms. Painte was not elected to this position but was originally
appointed executive director of the Indian Affairs Commission in October
1992 by former Governor George Sinner and subsequently reappointed in 1993
by current Governor Edward Schafer. Tribal governments are sensitive to
those persons who state they represent Indian people if they are not elected
and/or appointed directly by Indian people. Tribal councils or other
tribally elected officials legally represent their respective tribal
memberships and speak on their behalf.
Deborah Painte, Transcript 2, p.
Ibid., p. 213.
Ibid., pp. 213–14.
Ibid., p. 208.
Deborah Painte, Transcript 3, vol.
1, p. 33. Complainants are referred, for example, to the North Dakota
Department of Labor or to a Federal agency located in Denver.
Ibid., p. 33.
Ibid., p. 34.
Deborah Painte, additional comments to clarify her statements made to the
North Dakota Advisory Committee to the U.S. Commission on Civil Rights, at
both factfinding meetings (May 16, 1996 in Bismarck and Sept. 24, 1997 in
Fargo), correspondence, Mar. 10, 1999 (hereafter cited as Deborah Painte
Deborah Painte, Transcript 3, vol.
1, p. 35. The number of complaints filed with the Indian Affairs Commission
can be counted, but any reports tallying those numbers would misrepresent
the pervasiveness of the problem because of the low number actually received
in the Indian Affairs Commission Office. Most Indian people do not report
discrimination complaints for several reasons, such as they do not know who
to report them to, or they believe nothing can be done. Some, however,
report their complaints to an existing agency such as the North Dakota
Department of Labor. Ms. Painte believes discrimination complaints are
Deborah Painte, Transcript 2, pp.
Deborah Painte letter.
Deborah Painte, Transcript 3, vol.
1, pp. 38, 46.
Sandi Tabor, Transcript 2, p. 85.
Ms. Tabor is now executive director of the North Dakota State Bar
Ibid., pp. 89–90. Supreme Court Commission work was conducted under the
direction of Chief Justice Gerald VandeWalle. The commission consists of 26
members broken into five working committees established to evaluate specific
tasks and issues in various areas of substantive law. Ibid., p. 90.
Ibid., pp. 90–91. The survey involved the development and distribution of
three formats, one for each group. 1,301 surveys were sent to attorneys, 211
to court personnel, and 144 to judges. The surveys were divided into several
categories, including judicial intervention, courtroom interaction,
professional conduct, domestic violence, family law, criminal law, and
courtroom styles. Ibid., p. 91.
Ibid., p. 92. In 1991 legislation was enacted unifying the existing two
court systems, county court judges and district court judges, into one
system. The legislation eliminated county court judges and reduced the
number of district court judges to 42 by 2001. Citizens were concerned that
their access to the court system would be even more limited, particularly
with regard to requesting emergency orders for domestic violence, etc.
Ibid., pp. 92–93.
Ibid., p. 85. The committees included domestic law, criminal and juvenile
law, professional conduct, jury service, judicial system demographics, and
data collection (the heart of the commission). Ibid., p. 90.
Ibid., p. 93.
Ibid. Ms. Tabor said that although the information gathered is not available
now, the final report will be submitted for publication by the North Dakota
Law Review in the fall of 1995, Ibid., p. 92. The report “A Difference in
Perceptions: The Final Report of the North Dakota Commission on Gender
Fairness in the Courts,” was published in North
Dakota Law Review, vol. 72, no. 4, 1996.
Ibid., p. 93.
Ibid., p. 85.
Ibid., pp. 85–86.
Ibid., p. 86. In the late 1980s, the North Dakota Supreme Court provided
money in its budget for the establishment of a commission, but because of a
tax referral initiative, funds were eliminated. In March 1994, however, the
North Dakota Supreme Court did establish a Commission on Gender Fairness in
the Courts, which has been meeting regularly since that date.
Ibid., pp. 88–89.
Ibid., pp. 89, 100.
Richard Gray, Transcript 2, p. 22.
Ibid., pp. 22–23.
Ibid., p. 23.
Ibid. The State is divided into eight sections that make up the eight
Ibid., p. 24. In January and February 1996, a statewide survey was conducted
of State agencies, cities with populations over 2,500, public housing
authorities, and numerous nonprofit entities.
Ibid., p. 24.
Ibid., pp. 25–26.
Ibid., p. 25.
Ibid., pp. 23–24. An Action Area refers to a specific part of town or a
community where housing issues need to be addressed.
Ibid., p. 61.
Ibid., pp. 61–62.
Ibid., p. 62.
Ibid., p. 47.
Ibid. Grantees are organizations that receive Federal funds through the
Richard Gray, Transcript 2, p. 48.
The Office of Intergovernmental Assistance has received a few title II
complaints which pertain to governmental entities and accessibility of
public buildings, and actually provided some guidance, in addition to
assisting in the filing of complaints under title III (accessibility to
business facilities). Mr. Gray said he was not sure if any of the complaints
had gone through because the office has no way of tracking that.
Ibid., p. 51.
Ibid., p. 49.
Bruce Furness, Transcript 3, vol.
1, pp. 9–10.
Ibid., p. 13.
Ibid., p. 10.
Ibid., p. 11.
Ibid. The Cultural Diversity Project, in its 4th year, was sponsored the
first 3 years by funds of the Pew Charitable Trusts Foundation. The Pew
Foundation makes grants available for civic, arts, education, and other
issues. Currently, the project is funded wholly by city government and
Ibid., p. 12. The translation service puts individuals who speak a certain
language with someone from the community who speaks the same language.
Ibid., p. 13. The project was conducted by North Dakota State University,
Ibid., p. 23.
Ibid., pp. 25–26.
Ibid., p. 17. The question was asked by a North Dakota Advisory Committee
Holly Marion, Transcript 3, vol.
1, p. 47. The Office of Community Relations was established in May 1992, the
result of a citizen march on City Hall demanding that the city address
Ibid. Disparate treatment occurs when a person is treated differently from
the main population based on a characteristic that he or she may have. Ms.
Marion preferred to use the term disparate treatment rather than
discrimination because she has found that “discrimination” scares people
Ibid., p. 48. Protected classes include women, ethnic minorities, and people
Ibid., pp. 51–52.
Ibid., pp. 57–58.
Ibid., pp. 52–54.
Ibid., p. 54.
Ibid., pp. 55–56.