Americans in South Dakota:
An Erosion of Confidence in the Justice System
The Rapid City community forum, “Native Americans and the Administration of Justice,” consisted of seven panels of speakers and a 4-hour public session. The South Dakota Advisory Committee heard perspectives from Federal, State, and tribal law enforcement, as well as from members of the American Indian community. A summary of the proceedings follows. It is not, however, intended to cover all the statements and opinions expressed at the forum. A transcript of the proceedings will be made available at a later date and contains a myriad of assessments on the state of criminal justice in South Dakota.
Advisory Committee Chairperson Marc Feinstein opened the forum by introducing fellow Committee members in attendance: Vice Chair Dorothy Butler, Amy Arndt, C. Rae Burnette, Bang Ja Kim, James Popovich, Alys Lafler-Ratigan, J. “Mutch” Usera, and William Walsh. After outlining the ground rules for the proceedings, he invited Mary Frances Berry, Chairperson of the Commission on Civil Rights, to make a statement. She introduced other Commissioners present, and then discussed the scope of the national Commission. Although the Commission does not have enforcement powers, it can make recommendations to other Government agencies, including the Justice Department, on ways to strengthen their civil rights enforcement functions. Acknowledging that a 1-day forum is not sufficient to learn everything about issues of justice affecting Native Americans, Chairperson Berry said the Commissioners hoped to learn enough to draw conclusions based on the Advisory Committee’s recommendations.
Overview and Background
Charles Abourezk, an attorney in Rapid City with a lengthy record of advocacy on behalf of Native Americans, presented an overview of race relations in South Dakota and treatment of Native Americans within the judicial system. Racial polarization, although improving in some segments of society, has long been a reality in South Dakota, he said. Acts of racial violence are as much a part of South Dakota’s history as they are for the South, he told the Committee. Referring to the 1998 dragging death of a black man in Texas, Abourezk said, “Our James Byrds often appear with little notice here in our region, and their killers often get probation rather than the death penalty or do not get charged at all.” He noted that an act of violence against one Native American, whether racially motivated or not, spreads fear throughout Indian communities. When minorities react to these deaths, he continued, it is they who “appear excitable and prone to exaggeration while the rest of society looks on with calm reasonableness as if they are disconnected from it all.”
Equal application of the law, while it cannot cure far-reaching racial and economic inequalities, is needed before constructive dialogue between Indians and non-Indians can take place, Abourezk told the Committee. As to whether there are pervasive inequalities throughout South Dakota’s judicial system, Abourezk said that statistically he was uncertain but noted the importance of perception. Clearly, many Native Americans perceive the system to be unfair, but steps can be taken to repair this image. First, he said, for Native Americans to begin to trust the judicial process, they must have greater representation as jurists and judges. Native American perceptions of inequity often derive from being judged by people who are not part of their “milieu” or their “way of life,” he said. No Native American judges serve within South Dakota State courts, he noted. Second, he said because much of the tension between Indians and non-Indians is in the area of tribal-State relations, the State must maintain ongoing communication with tribal courts. Third, in response to a question from Commissioner Edley, Abourezk said citizen review boards could provide recourse for American Indians who believe they have been treated unfairly by law enforcement. But he said he was unaware of any review boards in the State.
Abourezk also commented on the availability of adequate legal representation, which poor Americans often have a problem obtaining. He said public defenders do a “valiant job” of trying to provide quality representation but are overloaded with cases. He noted that a new Federal public defender system was being implemented but that he was concerned because only two positions are funded in Rapid City, two in Pierre, and one in Sioux Falls. In Rapid City’s Federal courts, 80 percent of the criminal defendants are Native American, he said.
Abourezk is currently representing the families of Wilson Black Elk, Jr., and Robert Many Horses, and although he was unable to divulge details of the cases, he was able to comment generally on the progress of the investigations. Regarding Black Elk’s death, Abourezk said it remains unclear whether his murder was racially motivated. For this case, the FBI’s special agent in charge has kept him and Black Elk’s family informed, he said. Conversely, in the Robert Many Horses case, Abourezk alleged local authorities have been “totally unresponsive” to his foster mother’s request for information (she did not receive an autopsy report until 3 weeks after his death) and he has not heard from Federal authorities, who have reportedly assumed the investigation.
The first of three panels of community members followed Charles Abourezk’s overview. Darlene Renville Pipe Boy of Peever, South Dakota, and Ted Means of Porcupine made up this panel.
Darlene Renville Pipe Boy, Peever
Native Americans, according to Darlene Renville Pipe Boy, are denied fundamental human rights granted other Americans. When considering human rights issues in China, the United States should look at its own policy toward Native Americans, who have been subjected to a history of genocide and oppression, she said. “I believe the burden of the United States of America is that it has not accepted the truth of its past, and we’re [Native Americans] very much a part of that past,” she said. Although the recent murders of Indian people have received much media attention, she alleged that many more deaths on reservations have gone unreported.
Renville Pipe Boy, who is from the Lake Traverse Reservation, also discussed racial profiling by law enforcement. She said that, like black people, officers stop Native American drivers without just cause and described experiences she and her son have had being pulled over by highway patrol officers. These seemingly minor occurrences, she said, culminate into larger incidents between the races. Committee Vice Chair Butler suggested that the term “driving while black” be expanded to include other people of color.
The pervasive stereotype of Indian people as alcoholics contributes to the inequities they face in the judicial system, Renville Pipe Boy told the Committee. “I have non‑Indian friends and when I talk to them, the comment that always comes up is, ‘Alcohol was part of that crime, wasn’t it, alcohol?’ Or ‘They were alcoholics, weren’t they?’ ” she said. Commission Chairperson Berry, noting that most crimes committed by and against Native Americans somehow involve alcohol, asked Renville Pipe Boy if it was appropriate to consider alcohol’s role in criminal acts. Renville Pipe Boy responded that alcohol use should not be a factor in the provision of equal protection of the law. “I think you’re . . . dealing with issues of justice here and are we treated equally. That’s what you’re looking at. It’s not the issue of alcoholism.”
Concluding her remarks, Renville Pipe Boy recommended that the Commission on Civil Rights visit each reservation in South Dakota to hear the experiences of Indian people not present at the community forum.
Ted Means, Porcupine
For Ted Means, a member of the American Indian Movement, racism in South Dakota has become more subtle over the years. But, he said, “Every Indian in this State will tell you that they have experienced racism, be it in the stores and restaurants, be it in the judicial system, or having to deal with the police forces of this State.” Education, he said, is the key to reducing racism; only if young people are taught about racism—how it starts and its effect on people—can race relations improve. He recommended a “continuous dialogue” on racism, bringing in perspectives from the education and judicial systems, police departments, and religious communities. Means also noted the dearth of attention paid to the history of Indian people in children’s textbooks.
Racism, Means said, was evident after the death of his daughter in 1981. Kimberly Means was killed by a drunken driver while participating in a spiritual run from Porcupine to Sioux Falls. The driver, he said, was only charged with drunken driving and served 15 days in jail. “Had the situation been reversed and I ran over and killed his daughter, I’d still be in prison today,” Means added.
In response to questions from the Advisory Committee, Means discussed race relations in towns bordering reservations. Racism, he said, is more pervasive in towns on the fringes of Pine Ridge Reservation, like Martin, Gordon, Nebraska, and, of course, White Clay—areas where people confront intolerance on a daily basis. Renville Pipe Boy had earlier referred to the presence of a “border town mentality” neighboring the Lake Traverse Reservation.
Federal Enforcement Panel
Ted McBride, U.S. Attorney, South Dakota
Federal prosecution of criminal cases on Indian land is handled by the U.S. Attorney’s Office. As Ted McBride told the Committee, U.S. attorneys are, in effect, the trial lawyers for the Federal Government. Typically, when an American Indian is the victim or perpetrator of a serious crime in Indian Country, the U.S. attorney assumes jurisdiction. The 14 crimes implicating Federal jurisdiction are outlined in the Major Crimes Act. Further, the U.S. attorney prosecutes cases where a non-Indian has committed a misdemeanor assault on an Indian person. McBride said these nonfelony crimes have been handled federally since the early 1990s, when the South Dakota Supreme Court ruled in State v. Larson that the State did not have jurisdiction over non-Indians committing offenses against Indian persons. On civil rights cases, McBride said, the U.S. Attorney’s Office regularly consults with headquarters staff in the Justice Department’s Civil Rights Division.
Whether criminal jurisdiction falls under tribal, State, or Federal authority depends in large part on the Indian status of the victim and offender, as well as the location of the crime. McBride pointed out that being ethnically a Native American does not necessary mean one is legally an Indian for Indian Country jurisdiction. For example, a Canadian Indian who commits a crime on a South Dakota reservation would be prosecuted by a State’s attorney because he is not a member of a “federally recognized tribe.” To meet the legal definition of an Indian, a person must not only have identifiable Indian ancestry but, simply put, he or she must be recognized by his or her tribe as being Indian. McBride also noted the difficulty in some parts of South Dakota in determining exactly what is Indian Country. Unlike Pine Ridge Reservation, which has contiguous borders, some of the State’s reservations are “checkerboarded”—that is, through various allotment acts, their original land was broken up into many noncontiguous sections. The trust land of the Sisseton-Wahpeton Sioux Tribe, for example, lies within five counties in northeastern South Dakota. In Sisseton, McBride said, the “checkerboard jurisdiction situation . . . complicates the ability of the State, tribal, and Federal law enforcement officers in providing services,” because jurisdiction must be established before an agency takes over law enforcement or prosecutorial responsibilities.
McBride also discussed concerns that the U.S. Attorney’s Office withholds information on criminal proceedings from the community. From a Federal prosecutor’s standpoint, he said, there is a difficult balance to maintain. The Justice Department recognizes that the public does have a right to know, but the Federal Rules of Criminal Procedures put severe constraints on information that can be released by prohibiting disclosure of grand jury testimony. Further, the defendant’s right to a fair trial must be upheld. Because of these factors, McBride said, the Justice Department has “very strict rules about not revealing much of anything in precharge or nonpublic documents.” The U.S. Attorney’s Office does, however, take some steps to inform the Indian community on the status of criminal cases. The annual Indian Country Report, published by the office, is presented to each tribal council and shows a breakdown of charges by reservation that the office has filed according to type of violation. McBride also noted that his office met with the families of Ronald Hard Heart and Wilson Black Elk, Jr., who were murdered outside White Clay. And, he said, in his short tenure as U.S. attorney he has visited all reservations in the State except Standing Rock.
In response to a question from Committee member Burnette, McBride discussed the effect of the 1987 Federal sentencing guidelines on Native American defendants. Because cases originating in Indian Country are often tried in Federal court, Native American defendants are frequently subject to the guidelines. Burnette noted the widespread perception that if someone commits a crime on the reservation, because of the strictness and inflexibility of the guidelines he or she will receive a harsher prison sentence than a person who commits a similar crime off the reservation. McBride said he had heard it said anecdotally that Federal sentences are typically longer than State sentences, but a study would be needed to determine if that is true. “I think it would take a very specific number-driven, empirical study before any of us could really say you get hit harder if you do the crime in Pine Ridge than if you do it in Rapid City.”
James Burrus, Jr., Assistant Special Agent in Charge, Federal Bureau of Investigation, Minneapolis Division
James Burrus began his presentation by introducing two FBI agents at his side who would be available later to answer questions from the Committee: Mark Vukelich, supervisory special agent from the FBI’s Rapid City office; and David Heller from the Sioux Falls office.
The FBI is responsible for investigating major crimes that occur within the nine Indian reservations in South Dakota. The FBI has offices in Rapid City, Pierre, Sioux Falls, and Aberdeen, all of which report to the central office in Minneapolis. Approximately 23 FBI agents are assigned to South Dakota, none of whom are Native American, Burrus said. Efforts to recruit Indian agents have been unsuccessful. Since January 1995, the Minneapolis Division has opened more than 1,100 cases on reservations in Minnesota, North Dakota, and South Dakota, with the bulk of investigations taking place in South Dakota, Burrus said. Currently, he said, the FBI has more than 300 Indian Country investigations underway in South Dakota; of these investigations about 34 percent are assault cases, 34 percent child sexual abuse, 9 percent are death investigations, 8 percent embezzlements, 6 percent burglaries, 5 percent assaulting a Federal officer, and 4 percent involve controlled substances.
According to Burrus, FBI investigators work hand-in-hand with tribal and Bureau of Indian Affairs officers, local police and sheriff’s departments, and State law enforcement personnel. “On all of [South Dakota’s] reservations, the FBI interacts with our partners on a daily basis locating and interviewing witnesses, collecting evidence, and working with Mr. McBride and his office for prosecution.” The FBI’s involvement with tribal police goes beyond investigations, Burrus said. At the request of tribal departments, the FBI provides training on such topics as crime scene preservation, child molestation investigations, and report-writing skills. Later, in response to a question from Chairperson Berry, Burrus admitted that some tribal police lack experience and knowledge on conducting criminal investigations.
One of the most noteworthy accomplishments highlighting the cooperation among agencies, he said, is the Northern Plains Safe Trails Task Force aimed at reducing drugs on reservations. Formed a few years ago, the task force made up of tribal, local, State, and Federal officers works to identify drug kingpins, collects evidence against them, and presents the cases for prosecution. Commissioner Meeks noted Burrus’ earlier statement that drug crimes account for only 4 percent of FBI investigations in Indian Country, whereas assault, sexual abuse, and death investigations are at the top, and asked why there were not task forces for the bigger problems. Burrus responded that the 4 percent figure underestimates the extent of drugs on reservations. And, he said, case-specific task forces are sometimes formed, particularly for murder investigations.
Burrus discussed general FBI practices for civil rights investigations, along with the FBI’s investigation of the Many Horses case and the White Clay murders. Allegations that a crime involves civil rights violations are reviewed by agents, and if a case is opened, notice must be given to Justice Department headquarters within 5 days, and a report must be issued within 21 days, he said. The Justice Department and the U.S. attorney then decide whether to file charges. Regarding the Robert Many Horses case in Mobridge, Burrus noted that since Many Horses’ death occurred off reservation land, the State had primary jurisdiction. The FBI, however, began a concurrent investigation to determine if Many Horses’ death violated Federal civil rights laws, and the investigative report was forwarded to the Justice Department for review, he said.
For the Black Elk and Hard Heart case, the FBI has assigned two of its most experienced agents, he said. The day of their murders, the Bureau had four agents on the crime scene, has subsequently interviewed more than 300 people, deployed search dogs and evidence response teams, conducted aerial surveys, expedited forensics evidence testing, and offered a $20,000 reward for information, he told the Committee. During the question and answer period, Chairperson Berry asked Burrus if the Commission should recommend that the Attorney General set up a task force to assist the FBI since the case remains unsolved 6 months after the murders. Burrus responded that a task force was not needed at this time.
In closing his presentation, Burrus said whether there are disparities or discrimination in justice and law enforcement systems within South Dakota is a judgment “best left to others.” Disparities or discrimination, he said, would “undermine the trust placed in us by the residents.” He added, “The FBI’s been a fixture on the reservation for more than 60 years. . . . I believe reservation residents want the FBI to be involved in Indian Country law enforcement, but we must continue to earn their trust by working every day for justice.”
After Burrus’ presentation, Committee members and Commissioners pressed him for specific details on the numbers of open FBI cases and how long they have remained unsolved. Committee member Burnette said, “I would like to know, did I misunderstand you, but you cannot tell us out of your 60-year history of FBI presence on the reservations and in doing investigations, that you cannot tell us how many unsolved crimes there are remaining, are out there on the books?” Burrus responded, “No, ma’am, not off the top of my head.” But regarding death investigations he told the Committee:
In response to some community concern that there were hundreds of unsolved murders in Indian Country, we did go back and specifically canvass our files for exact numbers, and I can tell you that as far as murders go, there are less than 10 that are unsolved from the FBI’s standpoint. If anyone has a list of 60 or 100, I would certainly like to see them because clearly we don’t have that type of information.
In a January 14, 2000, followup letter to the Commission, Senior Supervisory Agent Mark Vukelich provided information on the number of ongoing cases and how long they have been open. As of January 14, FBI agents were investigating 315 cases in South Dakota’s Indian Country. The letter provides the following breakdown:
1 month or less
6 years or more
Of the 315 cases, 145 are considered to be in the “investigative status.” In 51 of the cases, the investigation is “totally or partially complete,” and in 110 cases individuals have been charged in Federal court and the agent “follows the prosecution with the U.S. Attorney’s Office.”
Chairperson Berry and Commissioner Edley expressed concern that the testimony of Burrus and the other Federal panelists lacked recognition of the longstanding mistrust and lack of confidence Native Americans hold for Federal law enforcement agencies. Regarding the image of the FBI, Commissioner Edley said:
I’m not overwhelmed with a sense of you all having depths of self-awareness about the credibility problem that’s pretty apparent to us as visitors in terms of just the magnitude, the number of comments, the vehemence of the comments, the pain that comes across in the comments with people not trusting that the FBI is investigating aggressively and effectively.
Burrus acknowledged he was aware that many American Indians mistrust the FBI and said “we work to try to improve that every single day.”
Committee member Usera asked Burrus if the FBI had a process in place to inform people living on reservations about the status of its investigations. Without communication frustration mounts, especially when cases are lasting a year or more, Usera noted. Burrus responded that no formal procedures exist but that some information is relayed by the Bureau’s victim witness coordinators, through press releases, and sometimes by the agents themselves. He noted, however, that FBI agents are restricted in how much information they are allowed to release. Agent Heller said in his region of eastern South Dakota, agents attend monthly meetings on reservations with tribal attorneys, other tribal officials, and representatives from the U.S. Attorney’s Office to discuss new cases and the status of ongoing ones. Sometimes, Heller said, tribal members and crime victims speak at these meetings.
Julie Fernandes, Special Assistant to Bill Lann Lee, Assistant Attorney General for Civil Rights, Department of Justice
In her presentation, Julie Fernandes discussed the functions of the Justice Department’s Civil Rights Division. The Division is responsible for enforcing the Nation’s civil rights laws prohibiting discrimination on the basis of race, color, national origin, sex, disability, citizenship status, and religion. The Criminal Section of the Division investigates and prosecutes alleged violations of Federal civil rights statutes, including 18 U.S.C. § 245, the hate crimes statute; 18 U.S.C. § 242, which prohibits excessive use of force by law enforcement officers; and 18 U.S.C. § 241, which proscribes conspiring to deprive any person of his or her federally protected rights. Recently, the Civil Rights Division successfully prosecuted defendants who, in an effort to intimidate, burned a cross in front of the home of a Native American family, Fernandes said. Criminal Section investigations are launched as a result of a complaint from the victim, a third party, or from indirect notice such as through a news article. The Division investigates all allegations it receives regarding abuses by public officials and allegations that appear to fall under the hate crimes statute, she said.
Fernandes noted that the Civil Rights Division maintains a “close, cooperative working relationship” with the 93 U.S. attorneys, with whom the Division often shares overlapping jurisdiction. The U.S. Attorney’s Office and the Division may investigate cases and indict alleged offenders either together or separately. However, in two circumstances, she said, the role of the Civil Rights Division is particularly directive: First, all decisions to prosecute a crime under the hate crimes statute require prior written approval of the Associate Attorney General at Justice Department headquarters. Second, in criminal civil rights cases that are of “national interest”—a term of art defined on a case-by-case basis—the U.S. Attorney’s Office must obtain approval before either seeking or declining to seek an indictment.
Fernandes also discussed the role of the Division’s Civil Section, which has taken on more cases in the past few years. Here, alleged violations often involve title VI of the 1964 Civil Rights Act, which prohibits discrimination by entities receiving Federal funds. For example, the Civil Section investigates title VI complaints filed against recipients of Department of Justice funds originating from the COPS program, which allocates money to local law enforcement, Fernandes said. Another statute often implicated in Civil Section cases is 42 U.S.C. § 14141, provided in the 1994 Crime Act. This statute gives the Civil Rights Division authority to investigate allegations that State or local law enforcement departments are engaged in a pattern or practice of violating people’s civil rights. Types of conduct covered by the statute include excessive force, false arrest, and unlawful stops and searches, Fernandes told the Committee.
In her concluding remarks, Fernandes mentioned two Justice Department divisions that are “instrumental” in the Department’s effort to protect the civil rights of Native Americans. First, the Office of Tribal Justice coordinates Indian policy matters and promotes government-to-government relationships between the Department and the tribes. It serves as a tribal advocacy entity within the Department, Fernandes said. Second, the Community Relations Service (CRS) is an arm of the Department that works with the FBI, local law enforcement, and the U.S. attorney, providing mediation services to help resolve racial conflict. For instance, during recent demonstrations and marches at White Clay, CRS arranged for meetings between Nebraska law enforcement and protest organizers. CRS has also been on site in Mobridge and provided assistance in the Sisseton incident. Chairperson Berry later noted that due to a lack of resources CRS has been unable to place a much-needed representative in South Dakota, and Congress did not increase CRS’ budget for fiscal year 2000.
During the question and answer period, Chairperson Berry requested more information from Fernandes on the status of the Robert Many Horses investigation and on her division’s overall caseload. As Agent Burrus told the Committee earlier, the FBI forwarded its final investigative report on the Many Horses case to the Civil Rights Division for review. Acknowledging that Fernandes was perhaps not at liberty to disclose whether the Justice Department was going to pursue civil rights charges, the Chairperson asked that Fernandes at least provide a time line for the Department’s response. Fernandes said she that was currently unable to give a time line, but that she would inform the Commission later.
The Justice Department subsequently confirmed that the FBI has sent its final report to the Civil Rights Division and that the Division, along with the U.S. Attorney’s Office in South Dakota, is reviewing the FBI report to decide whether further action is warranted. In a letter to the Commission, Albert Moskowitz, the Division’s section chief, wrote, “You may be assured that this office and the United States Attorney’s Office will carefully assess all pertinent information in a timely fashion and that if this review reveals the existence of a prosecutable violation of the federal criminal civil rights laws, appropriate action will be taken.”
Moskowitz provided a breakdown of the Division’s fiscal year 1999 caseload. During this period, the Criminal Section received more than 12,000 complaints alleging violations of Federal criminal civil rights statutes. Violations include excessive force and other criminal misconduct by local and Federal law enforcement officials, and racially or religiously motivated violence, among other acts, he wrote. Approximately 3,600 of these complaints were sufficiently specific to civil rights statutes to justify a preliminary investigation by the FBI. But most of these investigations failed to uncover sufficient corroborating evidence to warrant prosecution. Nevertheless, in the past year, 72 new investigations were presented to the grand jury and 89 cases were filed, charging 138 defendants with violations of the Federal criminal civil rights laws. Convictions were obtained against nearly 100 defendants, Moskowitz wrote.
State Prosecutors Panel
South Dakota’s 66 counties each have an elected State’s attorney who is responsible for prosecuting crimes occurring within his or her county. In written testimony submitted to the Commission a few days before the forum, the Attorney General for South Dakota, Mark Barnett, noted the prosecutorial discretion granted to State’s attorneys:
The decisions to prosecute are distributed among 66 independently elected state’s attorneys. The decision whether and what to charge also involves a considerable amount of discretion and judgment based upon the quality of the evidence, experience, training, and talent of the prosecutor. Each locally elected state’s attorney makes his or her charging decision independent of every other state’s attorney, and independent of this Office.
The attorney general also said that “no statewide policies or protocols (other than statutory and constitutional law) govern prosecutorial decision making,” but some State’s attorneys’ offices may have internal policies.
Two of South Dakota’s State’s attorneys spoke at the community forum: Daniel Todd, who serves Walworth County; and Kerry Cameron from Roberts County. These counties were the scenes of the Robert Many Horses and Justin Redday deaths—cases that spurred the Advisory Committee’s decision to hold a forum.
Daniel Todd, State’s Attorney, Walworth County
Early in his presentation Daniel Todd responded to the question the community forum sought to answer: whether disparity or discrimination against Native Americans exists in the administration of justice in South Dakota. As for the entire State, Todd said, he lacked information to make an assessment but, he said, “I can respond without hesitation that there is no disparity or discrimination of treatment by law enforcement of Native Americans or in the prosecution of Native Americans in Walworth County.”
Todd told the Committee that every case has unique facts and circumstances, and for this reason determining whether discrimination exists is difficult. Many factors, he said, influence both the prosecutor’s decision to bring forth charges and the harshness of those charges, including whether the crime was violent; if a firearm was used; if there was a victim, and if so, if he or she was injured; if there were witnesses who could testify clearly; and if there was physical evidence. Also important, Todd continued, is the defendant’s prior criminal record, the involvement of drugs or alcohol, and the probability of successful prosecution. “Nonetheless,” he said, “it seems there is an irresistible urge by many to make an assessment of possible disparities or discrimination in cases based solely on only a selected number of factors.”
To determine whether disparity or discrimination exists in South Dakota’s judicial system, all cases, or a random sample, would have to be reviewed accounting for facts and circumstances of each case, Todd said. Before one can conclude Indian status to be a factor in prosecuting or sentencing, an analysis must compare identical, or at least very similar, cases to see whether outcomes differ according to race. “Anything less,” he said, “is nothing more than an opinion poll.” Todd encouraged a future examination and said that although his office files were not public records, he would make them available for an agreed-upon entity to review.
During the question and answer period, Commission Chairperson Berry asked Todd if his records show variations in guilty versus not guilty findings and the length of sentences imposed of Native Americans as compared with non-Native Americans for specific offenses and outcomes. From these data, one could draw inferences about whether Native Americans face disparate treatment. Todd replied “yes and no”; his office’s case tracking system lists the defendant’s name, whether charges were pursued, and gives a short synopsis of the sentence imposed by the court. From that list Todd said he can estimate “who were Native Americans and who were not,” but to determine the average penalties for Native Americans convicted of aggravated assault, for example, would require an empirical study. For simple assaults, he remarked, the State’s court has a standard sentence “and it will almost inevitably follow that sentence to the T for every defendant.” On the equity of murder sentences, he said he could not make a definitive conclusion, and on sentences for burglary, he said, “without going through a case-by-case assessment, my opinion is that they’re consistent.” Chairperson Berry responded to this statement, asserting, “How do you know this if you can’t give me any data? That’s precisely my point. On what basis do you conclude and tell this panel that you know for a fact that there is no disparate treatment and there is no discrimination in any part of law enforcement or prosecution in your county?” Todd replied, “I can tell you that’s my opinion.”
In a December 17, 1999, followup letter to Advisory Committee Chairperson Feinstein, Todd provided a cursory breakdown of charges filed by the Walworth County State’s Attorney’s Office. In 1998 the office prosecuted 270 class 1 misdemeanors and 46 felony cases. Of those 316 cases, it appears at least 142 of those persons were Native American. In 1999 (up until December 17) the office had prosecuted 296 class 1 misdemeanors and 57 felony cases. Of those 353 cases, at least 145 were Native American. But Todd said that “this accounting does not say very much” for the following reasons: (1) nationality is not recorded in case statistics, so the figures are based solely on a name review; (2) sentences imposed were not examined; and (3) specific factors involved in the investigation or prosecution of cases were not considered. During his presentation at the forum, Todd said prosecutions in Walworth County are “significantly alcohol related, and a huge number of those are DWIs.”
Committee member Popovich asked Todd during the question and answer session to elaborate on the Robert Many Horses case, which he was responsible for prosecuting. Todd summarized the case: Many Horses was picked up around 2:00 in the morning by four juveniles. Apparently everyone, including Many Horses, had been consuming alcohol and together they drove outside of town to drink more. Many Horses ultimately became unconscious and was brought back to Mobridge and put headfirst into a garbage can. Many Horses’ body was found around 7:00 a.m., and the four juveniles were arrested later that day. The body was sent for autopsy, and the results showed Many Horses had died of alcohol poisioning. Consequently, at a preliminary hearing the court dismissed all charges filed against the youths, which included manslaughter and aggravated assault, on the grounds that the elements of the offenses were not proven. Chairperson Berry asked Todd, as prosecutor, whether he could not find a charge that would hold in court. There are some offenses, probably misdemeanor offenses, Todd replied, that his office could prove. And a decision has not been made whether to pursue those. But, he said, “charging someone with underage consumption and the result is Mr. Many Horses died sounds like a slap in the face.”
Commissioner Meeks noted that the one component of the case that people in South Dakota have most struggled with is that Many Horses was found upside down in the garbage can. How, she asked, can an autopsy report conclude that being upside down did not contribute to his death, the fact on which the case hinges. Todd said he too had that concern, but the autopsy specialist could not give a definitive answer—only a medical opinion. But, nevertheless, the court ruled that Many Horses’ position in the garbage can was immaterial, he said.
Throughout his testimony Todd maintained there is no prosecutorial discrimination in Walworth County, but he acknowledged that the perception is sometimes otherwise. And, he said, “If the community believes that we have a race problem, then we probably have a race problem, whether there’s equal treatment or not.”
Kerry Cameron, State’s Attorney, Roberts County
Kerry Cameron’s presentation focused on the Justin Redday case, the only controversy, he said, that could have led to his invitation to the forum. The case, he said, does not involve an unsolved or unexplained death. An autopsy report indicated that Redday was lying face down near the center of the road with a blood-alcohol level of 0.22 when he was struck by a Ford F-150 pickup. “My conclusion here,” he said, “is that alcohol is responsible for the death of Justin Redday.”
As the Roberts County State’s attorney for the past 25 years, Cameron first met Redday in 1997 when he was arrested for his second DWI. Cameron remembers him as an “articulate, soft spoken, very nice young man.” At that time, Justin Redday’s mother convinced her son to seek help through an alcohol treatment program. (A summary of Peggy Redday’s statement begins on page 29.) Cameron said he next saw Redday in March 1998, and this time he was charged with third-degree burglary and grand theft, with 20 years in the penitentiary a looming possibility. Believing that Redday had potential and deserved another chance, Cameron said he made him a deal: If he would agree to complete another alcohol treatment program at the Human Services Center, Cameron said he would request that the court suspend his sentence. Redday accepted the offer, went to treatment, and was placed on probation.
In a small community much of a prosecutor’s job entails social work, Cameron said. His “door is always open” to help people find treatment for alcohol or drug abuse, or to get their driver’s license back so they can keep their jobs. But, he said, “I’m afraid that the publicity from this matter is going to indicate to them that I don’t care about them and that I’m not available to help them.” Particularly troublesome to Cameron was a front page picture in a Watertown newspaper. It showed Peggy Redday, Justin Redday’s mother, at an October 1999 rally for Justin holding a sign reading “State’s attorney grooms our Indian youths for prison. Protect our youth,” he reported.
Cameron told the Committee that the Redday case was investigated and prosecuted properly. Within a half-hour of Redday’s arrival at the hospital, Cameron said he along with the county sheriff and a State trooper were searching the accident scene for evidence. Over the 4-month investigation, Cameron said, Peggy Redday grew increasingly dissatisfied because “we weren’t finding that anyone had intentionally killed her son.” Normally, when a person is killed lying in the road, it is a “fairly cut-and-dried” case, he said. But for the Redday case a Division of Criminal Investigation agent was called in to assist in the investigation and all findings were presented before a grand jury, two events that are not commonplace. Although he had been criticized in the press for not doing a complete investigation, Cameron said, “I don’t know what else we could have done.”
The grand jury indicted the driver, Mark Appel, then 17, for motor vehicle homicide, and his case ended up in juvenile court. South Dakota State law prohibits anyone from divulging information on juvenile court proceedings, but 2 days before the community forum Appel gave Cameron permission to discuss his case. His family wanted the Commission to know what happened to their son, Cameron said. As newspapers reported, believing the evidence did not support manslaughter, Cameron dismissed the grand jury’s charge, and on September 14, 1999, Appel pled guilty to DWI. What the newspapers could not report, Cameron said, is that the plea bargain dismissing the manslaughter charge was conditioned on Appel being confined to the Department of Corrections until he was 21 for violating a standing probation order forbidding him from consuming alcohol. The sentence Mark Appel received was the same as it would have been if he had been convicted of manslaughter, Cameron said.
In his closing remarks, Cameron made the following recommendation: “I suspect that alcohol or drugs are responsible for most of the deaths that we’re discussing here today. I think that we should stop bickering among ourselves and work together to do everything we can to eliminate the drug and alcohol problems in our community. . .”
After his presentation, Committee member Burnette asked Cameron to comment on the differences between the Redday case and the Melanie Seaboy case, which he prosecuted a year earlier. Seaboy, an 18-year-old Native American, received a 14-year prison sentence (out of a maximum of 15 years) for causing an accident while driving drunk that killed a non-Indian motorist. After the accident, Seaboy’s family requested a personal recognizance bond so that she could remain at home until her court date, which Cameron then recommended to the judge. Unfortunately, Cameron said, Seaboy violated the bond within a couple of weeks when she was caught drinking in an automobile. “The judge chewed me out for recommending a PR bond for her, and it was obvious from that point in time that any input from me was going to be ignored on that case,” he said. Unlike the Redday case, which lingered on, Seaboy, charged with manslaughter, began serving her sentence immediately because “she took her medicine like an adult” and pled guilty, he said.
For those who think Seaboy received an unusually harsh sentence, Cameron provided confirmation. At the request of Seaboy’s father, he said he recently examined court records to compare the sentences of as many similar cases as he could find. The longest sentence for a comparable offense was 3 years, he said. (A summary of David Seaboy’s statement begins on 30.)
Differences between the circumstances of Melanie Seaboy and Mark Appel preclude comparisons, chiefly that Seaboy turned 18 just prior to the accident, whereas Appel was treated as a juvenile, Cameron said. And he said he thought Seaboy’s “demeanor at her arraignment had quite a bit to do with her sentence.” Nevertheless, he acknowledged understanding why some Native Americans, because of Seaboy’s sentence, perceive the justice system to be unfair.
Chairperson Berry commented that Cameron’s testimony did not reflect the role he played in Seaboy’s 14-year sentence. To both State’s attorneys she said, “You as prosecutors have discretion to determine what charges you bring. . . . Your testimony, both of you, gave no sense of that to people who did not know better.” To Cameron, she said, “You were the one who decided to prosecute Ms. Seaboy, right?” And he responded, “That’s correct. I made that decision . . . I could have charged her with a simple assault or something on that, but it was not called for.” Manslaughter, he maintained, was the appropriate charge for the offense.
Addressing the general question of whether judicial discrimination exists in Roberts County, Cameron said he had sensed a racial divide in terms of perception. But he also noted “great division” among Native Americans as to whether or not there is disparity. As far as the percentage of total prosecutions of Indians and non-Indians in the county, Cameron said his office did not have those figures. But he did estimate that 90 percent of the prosecutions are alcohol related.
Law Enforcement Panel
Robert Dale Ecoffey, Superintendent, Bureau of Indian Affairs, Pine Ridge
Dale Ecoffey has more than 15 years of law enforcement experience, time mostly spent in Indian communities. He is the first American Indian to serve as a U.S. marshal in the 207-year history of the Marshals Service. Over the past 25 years, he said, there has been “some improvement” in the administration of justice for American Indians in South Dakota. However, Indian people “are often subject to unfair treatment in decisions to prosecute when the Indian is either a victim or subject in a case.” And, he continued, “Often there appears to be disparity in sentencing between Indian and non-Indian defendants.”
Historically, Ecoffey said, the Bureau of Indian Affairs has been responsible for providing all law enforcement services on the Pine Ridge Reservation. But, over time, Indian people have gained more autonomy, and now hiring and firing of tribal officers are in the hands of local residents. Commissioner Meeks, who visited Pine Ridge the day before the forum, commented that many of the complaints she heard were directed at the tribe’s own Public Safety Commission and asked Ecoffey how the commission’s performance could be improved. Ecoffey noted the difficulties tribal police officers face, with low salary, long hours, and lack of resources, all contributing to a very high turnover rate. The Public Safety Commission has taken steps to improve its service by sending officers to an Indian Police Academy in New Mexico for training, he remarked. He said he is optimistic that future improvements will be made through additional funding the commission is slated to receive from the Justice Department’s Circle Project.
Ecoffey also discussed the border town of White Clay, Nebraska, neighboring the Pine Ridge Reservation. Every year, White Clay merchants sell more than $4 million of beer, and most customers come from Pine Ridge, he said. The State of Nebraska provides “little or no” law enforcement in White Clay, which leads to assaults and other crimes being committed against Indian people, he alleged. Nebraska’s unwillingness to provide police protection is “a direct violation of civil rights of Indian people who are faced with the sorrow and poverty which exist on the Pine Ridge Indian Reservation,” he concluded. Merchants are also culpable, making money at the expense of Indian people on the reservation, who suffer disproportionately from fatal car crashes, suicide, and health-related problems associated with long-term drinking, according to Ecoffey.
In relation to White Clay and generally, Ecoffey discussed alcohol abuse among Native Americans and the availability of detoxification centers. Vice Chair Butler remarked that several earlier panelists had suggested that if alcohol use could be curbed, a reduction in crime committed by and against Indian people would follow. Ecoffey contended that until economic conditions on the reservation improve, Native Americans will continue to turn to alcohol. He told the Committee:
Just simply, in this country a 75 to 95 percent unemployment rate in any area is totally unacceptable. And until we have opportunities for our Indian people to work in meaningful jobs so that they can adequately support their family, so they can buy simple things that are needed in life, then often we’re going to have our Indian people turn in a sense of hopelessness and despair to alcohol and drugs. So the crux of the problem is helping create a better economy in Indian Country across the Nation.
There is no detoxification facility on the Pine Ridge Reservation; the reservation’s new 46-bed hospital, to the amazement of many, was constructed without detoxification ability. A treatment referral service called Project Recovery exists, Ecoffey said, but it is greatly underfunded and has a long waiting list. Some discussion has taken place on the feasibility of redirecting Project Circle funds to build a detoxification center, he said. Under the project, the reservation is to receive $1.2 million to renovate two of its jails, but many believe a detoxification center is needed more than refurbished jails. Further, no detoxification services are available in White Clay. (The closest facility, Northeast Panhandle Substance Abuse Center is 40 miles away in Gordon, Nebraska. Sixty percent of its clients are Native American and the facility does serve South Dakota residents, depending on income, for as little as 50 cents per day. But the 6-bed center consistently has a 1–2 month waiting list, and because of funding restraints can only provide social-setting detoxification, not the medical detoxification that so many White Clay “participants” need.)
Ecoffey made several recommendations to the Advisory Committee. First, civil rights offices should be set up on reservations to provide advocacy and redress for Indian people who believe they have been discriminated against. “It’s not a fact,” he said, “that the FBI or the U.S. attorney or Justice Department does a bad job when it comes to a civil rights complaint, but there is a total lack of communication and timeliness of response when it comes to a response to either the victim or the victim’s family.” Ecoffey agreed with Committee member Walsh that with increased funding perhaps the BIA could assign staff to such an office to receive and respond to complaints. Second, the Committee should recommend that Congress increase funding for the BIA and the Department of Justice’s Community Relations Service, which he said has only two or three staff members working out of Denver for the entire Rocky Mountain region. Third, the Advisory Committee or the Commission should examine other issues in addition to the administration of justice, including equal access to housing and bank lending practices, specifically redlining. “Even with 90 percent and 100 percent loan guarantees, you simply cannot get [banks] to lend money in Indian Country,” he said.
Rosalie Little Thunder, Rapid City
Rosalie Little Thunder has lived in the Rapid City area for over 20 years. Racism is a problem in the community, she said, but an even bigger issue is the denial of its existence. “We have heard different people sitting up here saying there is no discrimination, there is no racism. I’ve seen that to extremes here. And when we deny it, we don’t recognize it. We don’t recognize it, we don’t deal with it.” Racism, she continued, is not merely prejudice but the power to exercise that racism; and for that reason reverse racism is impossible. “The gentlemen sitting up here saying there is no discrimination, they hold the power. Law enforcement, most of all, holds the power. The judicial system holds a lot of power over Native people,” she said.
Before racism can subside, she said, those in power must confront their attitudes toward Native Americans. Police officers, in particular, need some type of sensitivity training because of the control they exert over others. A few years ago the Rapid City Police Department offered cultural sensitivity training to its officers, but she contended “it did not go well,” erupting in friction.
Alleging racism exists throughout South Dakota’s judicial system—by judges and juries, even by defense attorneys—Little Thunder recommended to the Advisory Committee that a study be done on sentencing patterns.
Eileen Iron Cloud, Porcupine
Eileen Iron Cloud sees “obvious injustice in the State’s criminal justice system toward Native Americans.” She began her presentation by describing two court cases she believes exemplify widespread disparity. On November 15, 1999, she said her niece, having no prior criminal record, was sentenced to 2 years in the South Dakota prison for women after pleading guilty to felony forgery in Pennington County. The mother of four children, ages 8, 6, 3, and 17 months, she was taken immediately from the courtroom without time to make arrangements for their care, Iron Cloud said. Conversely, non-Indian perpetrators of crime, even violent crime, usually receive lenient prison sentences or just probation in Pennington County, she alleged. For proof, the Commission should examine the county’s sentencing records, she said. The second case Iron Cloud discussed involved a Pine Ridge high school girls’ basketball team participating in a 1995 tournament. A lawsuit was filed and subsequently thrown out in court claiming that some team members were illegally strip searched by tournament officials. Other high school teams were not subjected to the search, she said.
Iron Cloud also discussed legislation engineered by Governor Bill Janklow and Senator Tom Daschle transferring about 96,000 acres of Missouri River shoreline to the State. The move, she said, violates the 1868 Fort Laramie Treaty. And as long as State leaders work against the Great Sioux Nation, there will be no justice for Native Americans in South Dakota, she concluded.
Iron Cloud finished her presentation by making recommendations to the Advisory Committee and the Commission on Civil Rights. For the Committee, an indepth report of the day’s proceedings, along with recommendations for change, should be forwarded to the Commission. And the Commission in turn should hold full-fledged hearings on the administration of justice in the eastern and western parts of the State.
Faith Taken Alive, McLaughlin
Faith Taken Alive called on the Commission to examine investigation, sentencing, and prosecution practices in South Dakota, particularly in Walworth County. She discussed several cases that for her illustrate disparate treatment of Native Americans.
Taken Alive lives on the Standing Rock Indian Reservation, once home to Robert Many Horses. Before Many Horses was put into the garbage can, Taken Alive alleged that he was “slapped up and thrown into a ditch.” Native American people knew from day one that Many Horses was killed and then stuffed in the trash can—that he did not die merely from alcohol poisoning, she told the Committee. And she questioned why Walworth County State’s Attorney Daniel Todd did not use “the discretion that he holds in the palm of his hand” to prosecute the four teenagers involved, particularly given that Many Horses was mentally disabled.
A case similar to Many Horses’ divided the Mobridge community a few years ago, when charges were reduced against two white men who had raped and killed a young Lakota woman. In August 1980 Candace Rough Surface disappeared, and 9 months later her badly decomposed body was found in a Missouri River bay. At the time, Nicholas Sherr and James Stroh were questioned by police but released. Then, 15 years later in 1996, Stroh’s estranged wife informed police of his involvement, and both men were charged with murder. But the complaint against Stroh was reduced to second-degree manslaughter when he agreed to testify against his cousin. And the State dropped the murder charge against Sherr in exchange for his guilty plea of first-degree manslaughter. Again, Taken Alive said, the State’s attorney did not exercise his discretion. “As a result of inadequate prosecution, inadequate investigation, her killers’ sentences and their charges were greatly reduced because of the lack of investigation in Walworth County,” Taken Alive contended.
Another case Taken Alive discussed was that of Jeremy Thin Elk. In the summer of 1999, Thin Elk spent 30 days in the South Dakota State penitentiary for killing a dog. He also had to pay $300 in court costs, make a public apology to the dog’s owner, and do community service, she said. Later, during the public session, Brad Peterson, an attorney with Dakota Plains Legal Services, referenced this case and noted that two other juveniles also faced felony charges over the dog’s death.
In addition to perceived prosecutorial and sentencing disparities, Taken Alive discussed treatment of Native Americans by law enforcement. She told the Committee that she fears law enforcement, not tribal police but white officers. And she claimed in Mobridge, police harass Indian motorists by pulling them over for having items like medicine wheels and dream catchers hanging from rearview mirrors.
Scott German, Agency Village
Except for time spent in the military, Scott German has lived all his 31 years on the Lake Traverse Reservation of the Sisseton-Wahpeton Sioux Tribe. From his perspective, he said, South Dakota does not provide equal justice for all its citizens. But his word, and that of other panelists before him, is not enough, he said. The Commission must subpoena arrest records.
German, like Taken Alive, said he is not fearful of law enforcement as a whole—only of non-Indian officers patrolling the reservation’s perimeters. “I don’t feel that I have to worry about our tribal police. In fact, it’s a comfort to me as a citizen to know that should I be pulled over for some infraction, that the tribal police will probably be notified, because there’s somebody there to ensure my safety in that situation,” he said. In Roberts County, German alleged, an examination of records would show “patrol routes encompass the Indian portion of the county significantly more than they encompass the non-Indian section,” which means more arrests of Indian people, he said. Law enforcement also sets up traffic checkpoints between Indian communities, he added.
It is at the police officer level, not the sentencing phase, that the Commission should focus its future efforts, he said. Because of sentencing guidelines, a judge’s discretion is often limited and the sentence imposed is frequently a “foregone conclusion,” he said. Conversely, officers have leeway in how they treat people.
Toward the end of his presentation, German recommended that the Commission audit the distribution of Federal funds throughout the State’s justice system. (Title VI of the 1964 Civil Rights Act prohibits discrimination by entities receiving Federal funds.) South Dakota, he said, receives more Federal assistance than it pays out in Federal taxes, making it one of the “premiere welfare States” in the country.
Local and Tribal Law Enforcement Panel
William Brewer, Director, Department of Public Safety, Oglala Sioux Tribe
William Brewer has been director of Pine Ridge’s police department for the past 7 months. Brewer told the Committee that he was unaware he was going to present on a panel, so he did not have remarks prepared. But he said he would be free to answer any questions. The Department of Public Safety has 88 officers, some of whom are female and nontribal members. But he did not have a precise breakdown.
During the question and answer period, he acknowledged receiving some complaints of officer misconduct from community members. An internal review committee, composed of nine representatives from each district on the reservation and two officers, investigates these complaints, he said. All civil rights violations are forwarded to the FBI, he added. Brewer also admitted that some tribal officers are not adequately trained to conduct criminal investigations, specifically for murder and assault cases. “It’s something we’re working on,” he said. In January 2000, 12 officers are leaving for a police academy, and he said he is trying to get two of his criminal investigators into a criminal investigation class offered in Quantico, Virginia. Because of insufficient funding not all officers can be trained at once. But by the end of 2000 he hopes that every officer will have completed some training, he said.
Brewer agreed with earlier community panelists that police officers sometimes engage in racial profiling. “A lot of [residents] are simply afraid to drive to the next town come first of the month when they have any money. Chances are they’re going to get pulled over,” he said.
Thomas Hennies, Chief of Police, Rapid City
Thomas Hennies has been a Rapid City police officer for 35 years, and for the past 16 years he has been chief of the 101-member force. Recently he was elected to the South Dakota State Legislature. He told the Committee, “I personally know that there is racism and there is discrimination and there are prejudices among all people and that they’re apparent in law enforcement.” But, he said, great strides have been made over the past 35 years. “When I first became a policeman here, if you found a drunk Indian downtown, you’d put him in a garbage can. And when he got out, he was sober enough to leave, and that’s just the way things were.” But people in charge are committed to change, he said. “I can tell you if those things do occur [today], and I’m not so naïve as to say never, but if they do occur, they will be dealt with because we are trying to make a difference.”
Sensitivity training, Chief Hennies said, simply does not work. Instead, police departments need to recruit officers to reflect the racial makeup of the community, which in turn will increase cultural awareness among officers. To make this point, he said, he often tells the following story:
When you have one or two Indian people on your department, you will hear your officers say that there are only two good Indians in Rapid City and they both work for the Rapid City Police Department. And then when you get three or four, they’ll go on to say that these people are a little bit different than the other Indians that we deal with. You get 6 or 8 or 10, and pretty soon they start realizing, after they’ve spent 8 hours in the car, that they talk about religion and politics and food and family and their history and their culture, and pretty soon through osmosis, your white officers begin to understand Indian officers or minority people. And they have greater sensitivity through that learning of culture that’s not forced on them.
Chief Hennies estimated that his police department has between 15 and 20 minority officers, including women; and of those, around 10 or 12 are Native American. But he added, “Just hiring or promoting or moving people because of skin color or culture is wrong. And I’ll tell you this: Every employee I have is qualified.” The Rapid City Police Department recruits potential officers from colleges and technical schools on reservations, and goes all the way to Michigan to recruit minority applicants, he said.
Hennies responded to a comment from an earlier panelist, Rosalie Little Thunder, that a sensitivity course at his department “did not go well.” He agreed with her assessment and explained what happened: During a discussion on the Fort Laramie Treaty, which gave Indian people the Black Hills, an officer stood up and said he did not steal the land and he was tired of being accused of it. An argument between him and the moderator ensued, and the class had to be terminated at noon. (The officer is no longer on the police force, Hennies said.) Although his department has abandoned sensitivity training and focused instead on recruitment, it still provides annual cultural training, he said. For example, Little Thunder was called in to teach officers the Lakota language.
Committee member Popovich, noting that Rapid City is a reservation border town, asked Hennies whether his department shares information on crimes with tribal police. “Unfortunately, no, we don’t share a lot,” he responded. But he said his department, and presumably tribal police too, would like to see communication improve.
Don Holloway, Sheriff, Pennington County
Don Holloway started his law enforcement career in 1968 as a deputy sheriff in Pennington County. He was elected sheriff of the 52-member force in 1983. His department has one Native American deputy sheriff and five to seven female officers, he said.
Sheriff Holloway discussed the Rapid Creek deaths, which his office, along with the Rapid City Police Department, is investigating. Since May 21, 1998, eight men have drowned in the creek that runs through Rapid City. (The last death was on July 8, 1999.) The cases, all unsolved, have some similarities. Six of the men were Native American, seven out of the eight had a very high blood-alcohol level, and the bodies were found in relatively close proximity to one another. “I think after a period of time we started seeing a pattern, something that was not familiar or not consistent with what we had seen happening along the creek in the past. We refocused our investigation,” the sheriff said.
Currently, the deaths are being investigated as homicides. But whether they are all ruled homicides and if they are indeed connected, remains to be seen, the sheriff said. The Mid-States Organized Crime Information Center has assisted with evidence analysis, and the sheriff’s department asked the FBI to do a criminal profile based upon information gathered so far, he said.
An obstacle to solving these cases, the sheriff said, is the mistrust Native Americans hold for law enforcement. He told the Committee:
You’ve heard here today from Rosalie and other people about prejudice and the perception of prejudices in our community, and I think that those are true or accurate descriptions. Obviously, that does create a problem for us in gaining the trust and confidence of the people that we really need to help us with these cases.
The sheriff believes there are witnesses who have not come forward.
To bolster confidence in his department’s efforts, the sheriff said he has held meetings with community members and attended rallies on behalf of the victims. “We do have some working relationship with some of the local Native American people who live here and share our concern for trying to find the people responsible for these cases,” he said.
Woodrow Starr, Tribal Police Chief, Standing Rock Sioux Tribe
Woodrow Starr is the supervisory criminal investigator for the Bureau of Indian Affairs (BIA) and is stationed on the Standing Rock Reservation. All 12 of Standing Rock’s police officers are enrolled tribal members and 1 is female.
Beginning his presentation, Chief Starr remarked that panelists before him had focused on negative encounters with non-Indian officers. But, by and large, he has not had “bad dealings” with white officers. “There’s a lot of issues in the past, and a lot is gone,” he said. One problem he has faced, however, is racial profiling. And his own officers are sometimes the ones pulled over. He told the Committee:
Some of the younger law enforcement officers out there, they even stop some of our Indian police officers. We see each other. Then when they stop us, they realize it’s us. They don’t recognize us out of uniform. . . . It’s not done, I believe, intentionally towards the individual officer. I believe it’s because he’s an Indian driving a nice vehicle or something and he just happened to be in the wrong place at the wrong time.
Crime levels on reservations like Standing Rock and Rosebud are as high as in the community of Rapid City, Chief Starr said. But his department’s resources are not adequate to handle the caseload, and tribal people and the officers themselves often suffer the consequences. With only 12 officers, “a lot of people’s calls for help never get answered.” And because they are overworked, “a lot of officers after a period of time experience burn out and sometimes give into the stress and hurt some of the tribal people,” he acknowledged. Allegations of excessive force and officer misconduct are forwarded to BIA’s internal affairs unit and the FBI. But “a lot of allegations” never get prosecuted and the only recourse is internal disciplinary action, he said.
Chief Starr admitted that some Indian police officers do not receive the training they need. Some BIA criminal investigators cannot perform requisite investigatory tasks such as preparing evidence to send to the crime lab or the FBI and writing letters and affidavits to present to judges, he said. But others actually have to assist the FBI on the reservation because the agents “haven’t seen a felony crime.” There is a gamut of abilities.
Chief Starr concurred with Rapid City Police Chief Hennies that communication between tribal police and county and city law enforcement is limited and said he welcomed increased communication.
Floyd Hand, Pine Ridge
Racism, Floyd Hand said, can be combated with education. Children need to be taught about racism at an early age, and outdated school curricula, with its stereotypical descriptions of Indian people, must be revised. Parents also need to be educated, because by example they determine their child’s attitude, he said.
Because of racism people are suffering on Pine Ridge Reservation, Hand said. Agreeing with other panelists, he said a civil rights office on the reservation would be helpful, with one caveat: The office should not employ members of the Oglala Tribe. Everyone is related on the reservation, he said, and because of the extended family concept, people from other reservations or nontribal people should be in charge of processing grievances to ensure neutrality. Earlier he claimed that nepotism and discrimination against full-blooded Indians by other tribal people exist on Pine Ridge.
Elaine Holy Eagle, Rapid City
Elaine Holy Eagle is an enrolled member of the Cheyenne River Sioux Tribe and has lived in Rapid City for more than 40 years. In those years, some people have drowned accidentally in the creek, but the number of recent deaths is unprecedented. “I can’t understand how eight men drowned in Rapid Creek, and in December 1998 four men drowned in 4 days,” she said. Holy Eagle questioned why people are not outraged over their deaths. “Is it because people are conditioned to believe it’s okay if an Indian person is killed?” she asked.
Disparate treatment of Native Americans is pervasive in South Dakota, according to Holy Eagle. “There is definitely a dual justice system, one for white people and one for Native Americans.” Some Native Americans have reported incidents of discrimination to the police department and the mayor’s office, but many others are unaware of the proper procedures for filing a complaint, and some remain silent, fearing retaliation, she alleged. Further, cultural factors discourage Indian people from coming forward. Native Americans, particularly “full bloods,” Holy Eagle said, are taught to respect authority, and out of this respect, they do not stand up for their rights.
To reduce prejudice among law enforcement officers, Holy Eagle recommended that the police and sheriff’s departments continue cultural and sensitivity training. Responding to Chief Hennies’ comments that some officers have resisted sensitivity training, she said, “It brings back to my mind how some of our ancestors and relatives, they didn’t want to go to boarding school either. They didn’t want to give up their language.” In addition to training, the departments should implement a policy against racism and discrimination, she said.
Native Americans would trust law enforcement agencies more if they would simply communicate with local people, she said. Currently, “there’s no communication. We don’t know what’s going on—what the police are doing; they haven’t given us any update.” But if communication were to improve, she said, “some kind of healing . . . will be going on in the Native American community because so far we as Native American people feel like we’re not being heard.”
In response to a question of how Native Americans could lure money onto the reservation—through casinos or other ventures—which in turn would increase their economic power and reduce the impact of prejudice, Holy Eagle concluded her remarks by saying, “I think we as Indian people have rights to respect and dignity just because we’re people . . . regardless of whether we have 2 cents or no money at all.”
Tom Poor Bear, Pine Ridge
In response to the June 1999 murders of Wilson Black Elk, Jr., and Ronald Hard Heart, Tom Poor Bear, a relative of both men, set up an encampment called Camp Justice near the culvert where the bodies were found. With four tipis, a half-dozen more comfortable tents, and a sweat lodge for traditional worship, Camp Justice is home to about 20 Native Americans who have vowed to remain there until the murders are solved. In addition to bringing the killers to justice, camp organizers want the tiny, unincorporated Nebraska border town of White Clay shut down. They blame White Clay, with its four beer stores, for rampant alcoholism on the dry reservation and for violence against Indian people, including the recent murders, that alcohol use brings.
Poor Bear said if Black Elk and Hard Heart had been white, the response by law enforcement would have been much different. “If those were two white people that were found, the FBI would have been there in full force the day they found my little brother and Ron. Last week, the FBI did come to Camp Justice and did a sweep and they brought a dog—6 months later.” Both the FBI and the tribe’s Department of Public Safety are guilty of inadequate investigation and lack of communication with family members, he alleged.
Sheridan County, Nebraska, law enforcement—the sheriff’s department and its criminal investigators—should be investigated, Poor Bear said. “I personally hold that county responsible for these deaths, as many of our Lakota people do,” he said. Over the years, Sheridan County, which encompasses White Clay, has been the scene of many American Indian deaths, he alleged. And, he said, “Every time, they say our people die of natural causes, but when they are identified by family members, they are beaten.”
Since the Black Elk and Hard Heart murders, Camp Justice, together with the American Indian Movement, has organized weekly protest marches into White Clay. Protesters maintain that according to the 1868 Fort Laramie Treaty White Clay actually sits on reservation land and belongs to the Sioux. And they want the town, with its 22 residents and beer stores, to vanish. The first march, in late June 1999, turned violent and VJ’s Market was vandalized. “It wasn’t the intent of the walk for justice, but you have to look at the years and years of frustration, of racial abuse—physically and verbally—by the people that are in White Clay,” Poor Bear explained. The next weekend, Poor Bear said, marchers were greeted by more than 100 riot-clad State troopers with tear gas and attack dogs. By closing White Clay, not only will crime against Indian people lessen but money will stay on the reservation, where it is desperately needed. Ninety-nine percent of the millions of dollars White Clay store owners reap is “Lakota money,” Poor Bear contended.
Peggy Redday, Sisseton
Peggy Redday said that in his presentation before the Committee the Roberts County State’s attorney had “sugarcoated” the facts surrounding her son’s case. She has known Kerry Cameron all her life, Redday wrote in a supplemental statement to the Committee. And when meeting with him shortly after Justin’s death, she said, “I told him that I didn’t think anything would be done because Justin was Indian and the driver was white. He kept assuring me that it didn’t make any difference.”
Justin was walking home from a party when he was struck by Mark Appel’s pickup truck. His blood-alcohol level was 0.2—high but not high enough to cause him to pass out in the road, his mother said. Appel had also been drinking, and because he was on probation, he should not have even been out at 1:00 in the morning, she said. After the accident, Appel was placed on house arrest, but she said, he was arrested again for DUI in Codington County. “I had been telling Mr. Cameron he’s out partying every weekend,” she said.
Nearly 3 months after Justin was killed, on August 12, 1999, a grand jury indicted Appel on vehicular homicide, DUI, probation violation, and underage consumption. Redday said she was told the lesser charges would be dropped and in exchange the State would pursue the vehicular homicide charge. “We were very happy about that,” she said. Instead, the next morning the State’s attorney did the opposite and requested that the judge throw out the grand jury’s ruling and only charge Appel with DUI and probation violation, Redday wrote in her written submission. The driver “got absolutely nothing for the death of my son,” she told the Committee. For Redday, her son’s case sends a message that justice is not guaranteed for Native Americans. She wrote:
In my opinion, the message the courts are sending to our community is that its okay to kill someone as long as it [is] an Indian in this county and state. This state treats Native Americans just like blacks are treated in Mississippi. Why wasn’t something done when [Mark Appel] was caught the second time? Why did my son have to die because this white boy seems to have the right to drive around drunk. My son, Justin Redday, is dead. The court system leaves a family with no closure, no justice, and peace of mind for our Native American community.
David Seaboy, Sisseton
On July 29, 1998, a car driven by David Seaboy’s daughter Melanie plowed into a Jeep Cherokee, killing the other motorist instantly. Melanie, who had just turned 18, had been drinking. Seaboy said Melanie accepted her responsibility, pled guilty to vehicular homicide, and put herself at the mercy of the court. And “the mercy of the court was that out of a maximum of 15 years, she would serve 14 years in the South Dakota State penitentiary for women,” he said.
During his presentation, Seaboy listed the sentences for 10 comparable cases in the fifth judicial circuit, where his daughter was sentenced. (He also gave a letter to the Committee providing case citations.) Melanie’s sentence was nearly 3 times more severe than any other sentence handed down in the circuit for a comparable offense, he discovered. The harshest sentence for vehicular manslaughter or homicide was 5 years, and some defendants served no time at all, he said. The only female defendant among the 10 cases pled guilty to vehicular homicide, like Melanie, but received a suspended sentence of 5 years, he added.
A newly hired attorney for the Sisseton-Wahpeton Sioux Tribe has taken on Melanie Seaboy’s case and petitioned the court for a reduced sentence. The same judge who sentenced Melanie to 14 years agreed to hear the re-sentencing motion on December 15, David Seaboy said. (The sentence reduction hearing was held at the Roberts County courthouse on December 15, 1999, at which time Judge Larry Lovrien allowed parties to submit supplementary pleadings until January 3, 2000. Both Melanie Seaboy and the attorney for the victims provided pleadings. But on January 21 the court dismissed the motion to amend the sentence.)
Mark White Bull, Kenel
Mark White Bull is an American Indian Movement leader and organizer of a committee seeking justice for Robert Many Horses. After charges were dropped against the teenagers who stuffed Many Horses in the garbage can, White Bull said he began his own investigation. He interviewed several people, whites and Indians, to “trace Robert’s footsteps” that night. The information he unearthed was then sent to the FBI, which, in turn, started its own investigation, he told the Committee. “Initially we felt relieved that the FBI was going to come in,” he said. But that feeling soon changed when he realized that “the FBI investigation was not in the spirit of determining that there was any wrongdoing.” White Bull concluded, “The FBI has absolutely no credibility with the Native American community.”
White Bull claimed he and his investigative partner, Ron Oxford, discovered that, like the FBI, the local police department did not aggressively investigate the Many Horses case. Investigators failed to uncover crucial facts, including how much alcohol Many Horses had consumed that night, White Bull alleged. Some police officers, he charged, were “racially biased” and one was a relative of one of the defendants, which clouded objectivity.
Commissioner Meeks, noting that attorney Charles Abourezk is now representing Many Horses’ mother, asked White Bull if justice for Many Horses is imminent. Pursuing civil charges against the chief suspect in Many Horses’ death gives his mother some redress, but others should be charged as well, he said. “If the Mobridge Police Department and the State’s attorney were made part of the settlement then I think Mobridge is going to start thinking about what they did and also exercising more equal justice for American Indians.”
A public session followed the scheduled panels. More than 50 people signed up to speak before the Advisory Committee, and because of the large turnout each person was allotted 3 minutes. Nearly all the speakers were Native American, which prompted one man to say, “I don’t see anybody from Rapid City or Sioux Falls or any non-Indian communities here, and they should be here also.” The remarks heard during the public session largely mirrored earlier comments by panelists. Racism, uneven prosecution, disparate sentencing, mistrust of the FBI, and officer misconduct were all mentioned by community members. Additionally, several speakers noted the historical underpinnings of racial tension in the area, namely broken treaties and bellicose FBI tactics. Perhaps most important, community members offered the Advisory Committee and the Commission several recommendations for promoting fairness throughout the State’s judicial system.
As some speakers noted, exactly 23 years earlier, on December 6–7, 1976, the South Dakota Advisory Committee held a factfinding forum in Rapid City on the quality of criminal justice for American Indians. Although many people expressed gratitude for the Committee’s return, Selena Wolf Black and others also remarked that the situation for Native Americans in South Dakota has gotten worse, not better, over the years. Charmaine White Face, a writer and columnist, who also spoke at the first forum, said, “It is deplorable that there had to be so many deaths before these hearings were held.” And others, including Robert Milo Yellow Hair, worried that the Committee’s current effort would prove fruitless. “We don’t want you to go away and we don’t hear from you again. I don’t want to be sitting here 26 years from today asking for justice again,” he said.
Many speakers at the public session discussed cases of family members who, in their view, have been unfairly prosecuted or received unusually harsh prison sentences. Others discussed complaints of police brutality that have gone unheard. Chairperson Berry told the audience the Commission would send a transcript of the proceedings to the regional FBI office so that agents could follow up on specific allegations. And throughout the evening, an agent stood by to offer assistance and did meet with a few speakers in an adjacent room.
The public session began with presentations by American Indian Movement (AIM) representatives, including its founders, Dennis Banks and Clyde and Vernon Bellecourt. Earlier in the day, AIM held a well-attended press conference outside the meeting room and called on the Advisory Committee to set aside time for its members to testify. During their presentation, members explained to the Committee the role AIM has played in South Dakota since its founding in 1968. “Almost a week after we were formed . . . we started getting requests to go to different parts of the country because [Native Americans] felt nothing was being done to resolve crimes against Indian people,” Clyde Bellecourt noted. And over the past 30 years, Banks claimed, hundreds of American Indians have been murdered and law enforcement has not aggressively investigated the crimes. “It is perfectly legal yet in America to kill an Indian,” Clyde Bellecourt concluded.
AIM board member Michael Haney, who is also executive director of AIM’s splinter-group National Coalition on Racism in Sports and Media, discussed an issue not previously addressed at the forum. He spoke of items sacred to Indian people—eagle feathers, Native headdresses, and traditional dances—being exploited by high school, college, and professional sports teams. “When they reduce us to mascots or dehumanize us, it is easy to commit crimes against us,” he said. Therefore, Native images, nicknames, mascots, and symbols should be taken out of the public domain, he maintained.
AIM members asked the Commission to support their request for a Federal inquiry into the recent deaths of Indian people in Mobridge, Rapid City, and White Clay, as well as the “many unsolved deaths” that occurred on Pine Ridge Reservation during and after the FBI occupation of Wounded Knee. AIM, Vernon Bellecourt said, has appealed to the Senate Judiciary Committee to hold hearings on Pine Ridge and to appoint a special investigator. Clyde Bellecourt said, “We need a special Federal inquiry, and that’s what we’re requesting here today. We are asking this Commission to back us and support us in that effort to bring forth a Judiciary Committee with subpoena power to subpoena and do a full-scale investigation as they do in Mexico and other places when American citizens are kidnapped and murdered.” The Committee “must investigate what role the FBI and their admitted extremist agent informants and other U.S. Government agencies played during the reign of terror in 1973 and thereafter in South Dakota,” Vernon Bellecourt said. Further, he added, the investigation should encompass the 1975 shoot-out on Pine Ridge that claimed the lives of two FBI agents and the resultant prosecution of Leonard Peltier, who remains in prison.
South Dakota’s history has, to a large extent, shaped current race relations, many speakers contended. “The Civil Rights Commission needs to know the history of this area which will help, in part, to explain the reasons for the racism in this part of the country with the subsequent prejudice, discrimination, and hate crimes coming from that racism,” Charmaine White Face said. Charles Fast Horse remarked that the historical relationship between indigenous Indian people and European colonists was “characterized by administrative oppression [and] entitlement to our lands.” In particular, several people mentioned the abrogation of the 1868 Fort Laramie Treaty, which had given Indian people sole possession of a large chunk of western South Dakota, including the mineral rich Black Hills. In 1980, the Supreme Court affirmed what Indian people had been saying for more than a century: that the treaty was broken in violation of Federal law. And with the advent of Native American newspapers and radio stations, “non-Indian people residing in western South Dakota are constantly reminded that they are living on stolen land,” White Face said. Catherine Yellow Hawk expressed a sentiment held by many at the forum: “This land here in Rapid City is Lakota territory. This is our land here, and all we’re asking for is a place for our future, our children.”
A few speakers, including Jesse Taken Alive and Lionel Bordeaux, said the Commission should press the Federal Government to comply with Sioux treaty rights. Marvin Kammerer, one of the few non-Indians to testify at the public session and a self-described “squatter on treaty land,” said, “You have to tell our congressional crowd to quit stealing water, quit stealing the treaty resources, to deal with them as a nation because they are a nation.”
Racism is widespread in South Dakota, according to some speakers. “As far as racism goes, it’s so terrible, I would say it is similar to what the Ku Klux Klan used to do to black people,” Gordon Spotted Horse said. Rick Grey Buffalo Quinn said, as a child on the reservation “there was nothing but peace.” But of moving to Rapid City, he remarked, “I have never felt so hated, so degraded and so mistreated and so stepped on in my entire life.” As a non-Indian who married an Indian person, Lise Balk King said she has gained a new perspective on race relations. “I’m treated very differently than I was before because people see me as being part of the Indian community,” she said.
Two speakers noted past undertakings initiated in the State to ease racial tensions. Gary Loudner, president of Black Hills Satellite Communications and a State senate candidate, said that from 1968 to 1995 there was a Rapid City Indian/White Relations Committee, on which he served for many years, that tackled the same issues heard all day at the Advisory Committee’s forum. Representatives from the Rapid City Police Department participated in the meetings and fielded complaints from community members. But in 1995 the committee was dissolved for lack of interest, he said. Tom Katus, director of the Rural Ethnic Institute, informed the Advisory Committee about the institute’s 60-page report, Western Dakota’s Pilot Project of the Evolving Roles of Tribal People in Nation States. The report is the result of 26 State and community leaders engaged in a yearlong dialogue (1996–1997) on race relations. In 17 sessions, the participants, about half of whom were Native American, deliberated on 53 policy issues they identified. Eventually, by a two-thirds majority vote, 42 policy recommendations were included in the final report, showing a commitment to reconciliation, Katus said.
Speakers at the public session concurred with earlier panelists that Native Americans are targeted by overzealous, and sometimes abusive, law enforcement officers. However, unlike previous statements which primarily focused on misconduct by white officers from local police and sheriffs’ departments, in the public session the finger pointing was often at tribal police. Some speakers accused tribal police officers of brutally assaulting their family members and getting off scot-free.
Katie Hill from the Sisseton-Wahpeton Sioux Reservation spoke on behalf of her 90-year-old mother, Josephine Lapointe, who sat at her side. On June 3, 1998, Hill said her mother was assaulted by an officer from the tribe’s Police Commission. He “grabbed her right wrist with both hands and twisted her wrist.” After the incident, she said she drove her mother to the emergency room at the public health hospital in Sisseton. She filed a formal complaint with the tribe’s Elder and Disabled Affairs Office, contacted the tribal chairman and tribal secretary, and followed up with the Sisseton-Wahpeton Police Commission. Not only were her efforts rebuffed, but 2 months after the formal complaint, criminal charges of disorderly conduct were brought against her mother in tribal court, Hill told the Committee. “She became the perpetrator and the other people became the victims,” she said.
Celia Martin from Porcupine on the Pine Ridge Reservation said her grandson had just been accepted into the Marines when he was pulled over by officers from the tribe’s Public Safety Department. He was charged with drunken driving and while getting into the squad car to go to the station, an officer slammed the door on his ankle, breaking it in three places, Martin alleged. Because of the injury, his offer from the Marines was rescinded. The officers are still at Pine Ridge, and, in fact, have been promoted, she said. Faith White Dress, also from Pine Ridge, said her oldest daughter was raped by off-duty tribal officers at a party. “They exonerated themselves before my daughter was even out of the hospital,” she said. The director of Public Safety eventually agreed to reinvestigate but soon after was fired by the tribal council’s executive board. And the investigation was never reopened, she said.
Because of alleged tribal police misconduct, two residents of Pine Ridge questioned the prudence of redirecting Justice Department Circle Project funds to the tribal police department—a proposal that was discussed by panelists earlier in the day. Shirlee Bettelyoun said, “Tribal Public Safety brutality, excessive force, harassment, rapes, drive-by shootings, and nepotism occurs often. I sit and listen to testimony by authorities concerning the Circle Fund—that it is the answer. More money? Our problems still exist as long as directors, chief of police on down the line stand with their heads in the sand and choose not to listen to complaints made against them by members.” Faith White Dress concurred: “I hear the police are asking for more money . . . I don’t think any amount of money will buy a conscience. We need officers that are good.”
In addition to tribal officers, some speakers discussed practices of officers from Rapid City and Walworth County. Complaints ranged from harassment to assault. Young Native American drivers in Rapid City are pulled over for playing Lakota music too loudly or simply for driving an “expensive” car, Sheryl Lu said. In Walworth County, Brad Peterson, an attorney for Dakota Plains Legal Services, said Native American drivers are stopped for such minor infractions as having air freshener hanging from rearview mirrors and having bent license plates. He added, “I find it hard to believe that investigation of these types of charges would show many non-Indian people being arrested for these types of charges.” Geraldine Jackson said she was chased out of the Rapid City Police Department after inquiring about her grandson’s arrest. An officer, she alleged, told her he would “throw her in jail and throw away the key” if she came back. Linda Johnson said a Rapid City officer slammed her daughter face-first onto the trunk of a squad car. A panel set up by the mayor exonerated the officer, she said. Roberta Crazy Horse described another encounter with Rapid City officers: When she refused to let officers who did not have a search warrant into her house to look for a reported gun, they dragged her out by her legs, she alleged. As a result, she suffered a spinal injury, a broken arm, and severe bruises, she said. She asked the Commission to investigate the department.
Several speakers suggested ways to curb officer misconduct. First, Brad Peterson said the Commission should review arrest records for the hard data needed to prove Native Americans are targeted by officers. He recommended starting with Walworth County. Second, Peterson and Faith White Dress said officers need to be more diverse—both in terms of race and gender—to better serve the community. Peterson said there are no Native American police officers, sheriffs, or deputy sheriffs in Walworth County. And White Dress said the Pine Ridge Public Safety Department must hire more female criminal investigators and officers. Third, Geraldine Jackson said a review board to monitor police departments’ policies and practices, specifically in Rapid City, would be useful.
High arrest and prosecution rates necessarily translate into prison sentences for many Native Americans. And numerous speakers perceived the sentences of Indian defendants to be disproportionately tough. Racism, Federal sentencing guidelines, and racially unbalanced juries were among the top reasons cited for the disparity.
To illustrate disparity, many people discussed specific cases of family members and friends, including Marletta Panceco, who told the Committee that her daughter is serving a 30-year sentence for conspiracy to distribute methamphetamines, while a white man who shot her niece to death was merely ordered to put money into a trust fund for her orphaned children. Alice Bear Shield informed the Committee about a young Indian man, who while drunk, held up a convenience store. No one was harmed in the robbery, and he was apprehended peacefully in the store. Nevertheless, she said, he received a 55-year sentence. “You have non-Indians killing Indians and, at the most, getting 2 years’ probation . . . and somebody that doesn’t hurt anyone, doesn’t even make any attempt to get out of a place [gets] 55 years. That’s the difference in what’s happening,” she said.
Federal sentencing guidelines, some speakers contended, are primarily to blame for sentencing disparities between Indians and non-Indians. Promulgated in 1987, the guidelines dictate, within a narrow range, the sentences judges must give for specific offenses. Because cases originating in Indian Country are often tried in Federal court, Native American defendants are frequently sentenced under the guidelines. As discussed earlier in the forum, the perception among many Native Americans is that Federal sentences are typically harsher than sentences handed down in State court. U.S. District Judge Charles Kornmann of Aberdeen, who has been an outspoken critic of the guidelines, agrees. People prosecuted in the State’s Federal court system often receive tougher sentences than those convicted of the identical crime in State courts, he told reporters. “Does it make any sense that these Indians are subject to greater penalties than the rest of us?” the judge asked. “It’s ridiculous.”
State Senator Paul Valandra, who lives on the Rosebud Reservation, spoke at the public session and told the Committee, “The main thing I wanted to get up here today and talk about is Federal sentencing guidelines that we’re subject to on the reservations and how they are ripping our families apart.” In addition to being locked away for years, many young Indian men have permanently lost their voting rights because of felony convictions, he added. Later, Cedric Goodhouse said the judge who presided over his son’s trial was forced to hand down an excessively tough sentence. At the sentencing hearing, Goodhouse said the judge told his son, “The sentencing guidelines leave no discretion or precious little discretion to the courts. I am adamantly against them. I have always been against them, but they are here, and until Congress in their infinite wisdom changes them, they will remain in.” Senator Valandra asked the Commission to work toward getting the guidelines changed. For his part, he said he would solicit involvement of tribal governments to help judges regain the discretion and flexibility they once had.
Disparate sentencing, for some speakers, often stems from Native American defendants not being judged by a jury of their peers. Statements such as “she could not stand a chance in court because it would be an all-white jury” and “it was 10 white people versus 1 Indian,” were common. Jessie Taken Alive said, “American Indian people sit in front of juries of all non-Indian people when we are supposedly economically disadvantaged and yet they are sitting in judgment with all the stereotypical messages that they have received throughout the years.” Brad Peterson, a Legal Services attorney, provided data to back up what other speakers had alleged. Noting earlier testimony by the Walworth County State’s attorney that about 65 percent of his prosecutions are Native American, Peterson said the county’s fall 1999 list of potential jurists for that 65 percent included only three Native Americans.
Unreasonable bonds are also responsible for high incarceration rates among Native Americans, Peterson reported. The average length of stay in the Walworth County jail is much higher for Native Americans because often they cannot afford to put up the bond needed to be released. And when the county court sets a high bond, it has a policy of not allowing bondsmen to be used, he said.
Three parents discussed the devastating effect incarceration has on Native American children, particularly those in the State’s boot camp, and on families collectively. Mary Moran, a member of the Cheyenne River Sioux Tribe, told the Committee, “I can’t understand how they can take our children that we raised. We fought to get them where they are, and the justice system takes them and puts them away like animals that have no rights. And there is nothing, there is nowhere that we can turn, nobody that would help us.” Marletta Panceco echoed similar concerns: “We have a right to be with our families. We have a right to some kind of peace and happiness here without the fear of them taking away our children all the time.”
Jean Roach said her daughter has been confined to the Department of Corrections on petty theft charges for 2 years due to the department’s discretion in setting release dates based on good behavior. She also broached the subject of boot camps, which recently have sparked much controversy in the State because of the July 1999 death of a 14-year-old girl at the State Training School in Plankinton. After being forced to complete a 2.7-mile run, Gina Score, who was overweight and out of shape, collapsed and was left lying on the ground for 3 hours frothing at the mouth. She eventually died of hyperthermia. Two staff members, who said they thought Score was feigning symptoms, were charged with felony abuse and manslaughter. (On January 13, 2000, a circuit court judge threw out the manslaughter charges but agreed to try the defendants for child abuse.) Following Score’s death, the South Dakota Department of Corrections asked the Justice Department to review conditions at the juvenile facility. And on January 18, 2000, the Department released a report concluding the school overemphasizes physical conditioning, needs better trained staff, and must improve medical services. Between 30 and 40 percent of the children in the facility’s boot camp program are Native American, who, according to Jean Roach endure belittlement and racist attitudes from staff in addition to physical abuse.
In response to perceptions of inequitable sentencing, some speakers called on the Commission to initiate a study on sentencing patterns. As Brad Peterson said, “Numbers can’t lie, they can’t be sugarcoated, they can’t be modified or changed.” A few years ago, participants in the Rural Ethnic Institute’s project voted overwhelmingly (80 percent) that a study was needed. Finding 6.1.1 in their final report states, “The [South Dakota] Legislature should authorize a study commission on why South Dakota incarcerates more than twice the number of criminals as its neighboring state and why Native Americans comprise 4 times the prison population compared to their percentage in the State’s total population.”
While many speakers described being targeted by overzealous officers, prosecutors, and judges, they also spoke of being disregarded by the justice system when they most needed help. Frances Zephier summed up the view of many at the forum: “Our people are regulated by how many institutions? . . . They are regulated by city, county, tribes, State, Federal, BIA. All these agencies, but not one can protect us, but yet they regulate us and they prosecute us when there is a crime against a non-Indian.”
A few people said their children had been assaulted by non-Indian men, but when they sought assistance from authorities, help never came. One speaker said that after his daughter was abused, “We went through the proper chain of command and nothing happened. Everybody, BIA all the way up to the State’s attorney, they stopped everything. It never even went to a grand jury or anything. They never even investigated.”
Shawn Bordeaux from the Rosebud Reservation told the Committee of his frustration in seeking justice for his wife and unborn child who were killed in a drive-by shooting. Jurisdictional complications have hindered the investigation, with the Bureau of Indian Affairs and the tribe recognizing different boundaries, he said. Further, he said, he has not been able to get assistance from the FBI. “I don’t understand how easy we can get FBI agents to come to [the forum], but for some reason on my case in Kansas, we can’t get any FBI agents to assist us.” And, he added, whenever “a little bit of marijuana” is found on a juvenile, several agents come to the reservation.
Despite hours of testimony pointing to inequities in South Dakota’s justice system, many speakers remained optimistic that the situation for Native Americans could improve. “I think all of us know what the solutions are. We have to have the courage to say it. It’s going to take self-sacrifice from the top to the bottom,” Scott Herron said. And several people recommended courses of action to the Committee. Many people, recognizing deep inequities outside the justice system that also must be addressed, recommended additional funding for schools, housing, and health care as well as programs to lure jobs into Indian Country. Selena Wolf Black, representing the Memorial Walk Committee, asked the Commission to initiate a 3- to 5-year study in the Rapid City community on racism in areas of housing, employment, education, and local government, in addition to the judicial system. Other recommendations were specific to the administration of justice, including examining sentencing patterns and changing Federal sentencing requirements that were mentioned above.
From testimony, it is clear many people do not know who to contact when they believe their civil rights have been violated. Avenues for redress are not widely available, and resources that do exist are not well publicized, some speakers said. A civil rights office in South Dakota, perhaps several on the reservations, is essential according to many people. Charmaine White Face said that “such an office would have the ability to document thousands of complaints . . . and could assist greatly in disintegrating the racism that is growing in South Dakota.” Lise Balk King suggested compiling a list of resources. “One of the most simple things that could be done would be to put together some kind of list of organizations or resources that are available to address specific problems.”
In addition to increasing the number of Native American police officers, judges and jurists, one community speaker said the Governor’s office must promote diversity among the many State committees. Robert Demery of the Standing Rock Lakota Nation said the board that monitors State correctional facilities—the Board of Charities and Corrections—has no Native American members. Further, he said, “There’s never been an Indian on the Board of Regents. There’s never been an Indian on the Finance Board, the Board of Agriculture, or and other board in this State.”
Many speakers simply asked the Commission on Civil Rights to come back to South Dakota. A 1-day forum can only touch the surface of problems facing Native Americans in the State. Roberta Crazy Horse said, “I would like to request that you people come back here and help us out. There is a lot of discrimination going on here . . . A lot of our people are getting killed.”
455 N.W.2d 600 (1990).
Mark Vukelich, Federal Bureau of Investigation, letter to Mary Frances
Berry, Chairperson, U.S. Commission on Civil Rights, Jan. 14, 2000, pp.
Philip Arreola, regional director, Rocky Mountain Region of the Community
Relations Service, written statement submitted to John F. Dulles, director,
U.S. Commission on Civil Rights, Rocky Mountain Regional Office, December
Dan Marcus, Acting Associate Attorney General, U.S. Department of Justice,
telephone conversation with Mary Frances Berry, Chairperson, U.S. Commission
on Civil Rights, Feb. 2, 2000.
Albert N. Moskowitz, Criminal Section, Civil Rights Division, U.S.
Department of Justice, letter to Mary Frances Berry, Chairperson, U.S.
Commission on Civil Rights, Jan. 21, 2000, p. 2.
Ibid., p. 1.
Mark Barnett, attorney general, Office of Attorney General of South Dakota,
written statement submitted to John F. Dulles, director, U.S. Commission on
Civil Rights, Rocky Mountain Regional Office, Dec. 3, 1999, p. 3.
Ibid., p. 5.
Daniel Todd, Walworth County State’s attorney, letter to Marc S. Feinstein,
Chairman, South Dakota Advisory Committee to the U.S. Commission on Civil
Rights, Dec. 17, 1999, p. 1.
Jane Morgan, director, Northeast Panhandle Substance Abuse Center, Gordon
NE, telephone conversation with Dawn Sweet, U.S. Commission on Civil Rights,
Dec. 20, 1999.
Tom Poor Bear, supplementary written statement to the U.S. Commission on
Civil Rights, Rocky Mountain Regional Office, Dec. 6, 1999, p. 3.
Peggy Redday, supplementary written statement to the U.S. Commission on
Civil Rights, Rocky Mountain Regional Office, Dec. 6, 1999, p. 3.
Ibid., p. 3.
Ibid., p. 4.
State of South Dakota v. Melanie Seaboy, 98-312 Memorandum Decision, Fifth
Judicial Circuit, Jan. 26, 2000.
Joe Kafka, “Crimes on Reservations Get Tougher Sentences,” Rapid
City Journal, Apr. 23, 1999.
See U.S. Department of Justice, Office of Juvenile Justice and
Delinquency Prevention, Assessment of
Medical and Program Issues Related to Conditions of Confinement at the South
Dakota State Training School and Juvenile Prison, Jan. 18, 2000.
 Rural Ethnic Institute, Western Dakota’s Pilot Project of the Evolving Roles of Tribal People in Nation States, December 1997, p. 28.