Civil Rights Enforcement Efforts in North Dakota

Chapter 3

Federal, State, Tribal, and Local Government
Perspectives on Discrimination

U.S. Attorney’s Office

John Schneider, United States attorney, District of North Dakota, in his presentation at a planning meeting of the North Dakota Advisory Committee, stated: 

The protection of the civil rights of the citizens of North Dakota is one of the highest callings of the Office of the United States Attorney. It is our task not only to protect the dignity of our citizens, but to elevate the consciousness of our community. Beyond righting these wrongs and promoting healing, our task is to demonstrate that the degradation of our peoples will not be tolerated.[1]

The U.S. attorney prosecutes all Federal crimes that are committed in North Dakota, collects money that is owed the Federal Government, and defends the United States from suits brought against it.[2] Many of the suits are civil rights complaints brought by employees who work for Federal agencies and believe they have suffered employment discrimination.[3] Other civil rights cases are taken by the Civil Rights Division of the U.S. Department of Justice in Washington, D.C., although complaints can be initiated in the local district of North Dakota.[4] Since appointment as U.S. attorney, Mr. Schneider said there have only been two Federal civil rights cases that have gone to trial; one was a fair housing case and the other a freedom of access to entrances case.[5]

As U.S. attorney, it is his responsibility to ensure that everyone’s rights are protected and attainable.[6] U.S. Attorney Schneider provided the Advisory Committee examples of complaints he had received such as no wheelchair accessibility to restrooms in a business, and city of Dickinson court house inaccessibility to people with disabilities.[7] He also stated that there have been many instances of alleged police brutality that have come to his attention. Half of the crimes prosecuted arise out of the four major Indian reservations in the State, and he indicated that he would like to see a change in staffing to include individuals other than white Protestants.[8] His concern from a Federal perspective is that North Dakota citizens are not contacting his office regarding discrimination complaints, and even if they did the U.S. Attorney’s Office is not equipped to handle them. He was also concerned that North Dakota does not have a known and readily accessible means of redress for people who are experiencing discrimination. They have no agency to contact to receive relief or at least a determination concerning their complaint, he said.[9]

Office of the Governor

Deborah Painte, executive director of the North Dakota Commission on Indian Affairs, and a member of the Governor’s cabinet, spoke on behalf of Governor Schafer during both proceedings.[10] Ms. Painte informed the North Dakota Advisory Committee that the Governor had received the invitation to submit a written statement, and it would be forthcoming within the next week or so.[11] She began her presentation by saying, “He [the Governor] believes there is discrimination,” but raised the question to what extent discrimination exists.[12] However, Ms. Painte could not refer to any specific proactive efforts the Governor had taken to try to answer the question, but said that he testified in support of the 1997 interim study resolution enacted by the State legislature to study discrimination in the State and to ascertain if there is a need for a human rights commission.[13] She shared an example of perceived discrimination and how State government acted in a responsible manner:

A vehicle-safety inspection checkpoint located 30 miles north of the Standing Rock Sioux Reservation alarmed a number of Indian people because the checkpoint appeared to be coincidentally set up 4 days before the opening of the United Tribes Pow Wow. The people’s concerns were taken to Tribal Chairman Jesse Taken Alive, who then contacted Governor Schafer’s office. [Ms. Painte also received complaints regarding the checkpoint and responded to questions.][14] Governor Schafer and Highway Patrol Superintendent Jim Hughes met with Chairman Taken Alive on quick notice. In response, and to improve communication and avoid misunderstanding or bad feelings, the patrol agreed to notify tribal headquarters hours before similar safety inspections were conducted on routes near reservations. Chairman Taken Alive, satisfied with the explanation and change in procedure, shared the information with other tribal leaders and members of the Standing Rock Sioux Tribe.[15]

Ms. Painte said that “resolving this incident did not require a formal process or the involvement of some governing agency or commission. It simply required open lines of communication and good will on the sides of all parties.”[16]

She told the Advisory Committee that Governor Schafer is committed to improving State relationships with the tribes, and the Governor believes that progress has been made.[17] She cited further examples of the Governor’s commitment to address discrimination, including his signing a State-tribal accord with the Standing Rock Sioux Tribe and supporting the development of similar accords with the Three Affiliated, Turtle Mountain, and Spirit Lake Tribes.[18] She also mentioned “Capitol for a Day,” which brings all the cabinet directors and Governor’s staff to a single community for a day, to engage in dialogue between citizens and community leaders.[19] Ms. Painte said the Governor realizes that incidents of discrimination can and do occur despite such concerted efforts at improving relationships, and they can happen not only on the basis of race, but for other reasons such as age or marital status.[20] To better address the issue of discrimination, the North Dakota Department of Labor will come under the Governor’s direct administration beginning July 1, 1999.[21] The change will allow the State to look at its responsibilities toward discrimination with new perspectives and ideas.[22] In addition, the Governor’s Office is open to suggestions for improving the handling of those types of cases.[23]  

Concerning housing, she said the U.S. Department of Housing and Urban Development has funds available to contract with agencies to provide housing discrimination complaint processing under State and Federal laws. It might be possible, she said, for the North Dakota Department of Labor to receive additional money by processing housing discrimination complaints.[24]

Office of the Attorney General

Heidi Heitkamp, attorney general, State of North Dakota, explained that, in her professional career, she has not had extensive legal experience in the area of equal protection and that civil rights is not one of her specialties. However, she said she had some ideas on improving the way the State handles discrimination complaints, and thoughts on some important policy initiatives, in addition to strengthening the relationship between community members and the State.[25] Attorney General Heitkamp said that she has come to realize that the Office of Attorney General is the agency that is frequently called when people have problems and do not know where else to turn.[26] For that reason, the office has become somewhat of a clearinghouse for issues. And it also evaluates where there are gaps in providing service.[27]

The attorney general said that as Federal dollars continue to shrink:

it becomes more and more difficult for us to find referral points for the concerns that are expressed to us by citizens in the State. [As] a representative of the people of the State of North Dakota [the Office of Attorney General], must help people who, somehow, have gotten missed and have fallen through the cracks, those who have concerns and complaints regarding situations that they should not have to experience in this country, and certainly not in our State.[28]

The Office of Attorney General is the logical place for North Dakota citizens to turn when they have a legal problem, and for that reason her office fields many calls from private citizens who believe their rights have been violated.[29] By law, the Office of Attorney General can only provide legal advice and assistance to State agencies, officials, and employees in certain political subdivisions; however, not all citizens understand that.[30] The office does not keep statistics on the number and the types of discrimination calls received; however, calls are not infrequent, and based on the information received from those calls, at least some of those complaints appear to have merit.[31] She said a recent report released by the U.S. Department of Housing and Urban Development illustrated that North Dakota does face some discrimination issues.[32] When calls are received, they are referred to the best of the staff’s ability to the appropriate agency or individual. Unfortunately, in many instances, there is little hope that the referral will result in any effective remedial action because of the lack of an effective enforcement mechanism.[33] While North Dakota’s Human Rights Act is quite broad, it provides limited ability for those who experience discrimination to get effective relief. The two mechanisms under the act are:             

  1. The aggrieved individual may bring a lawsuit.

  2. The State labor commissioner may receive complaints about employment practices and attempt to obtain voluntary compliance with the law through informal advice, negotiations, or conciliation.[34]

There are problems with both mechanisms. Attorney General Heitkamp said lawsuits are expensive and time-consuming for all parties involved. Even the first step in pursuing a lawsuit—finding a lawyer—can be formidable due to the lack of or unavailability of attorneys.[35] She further explained:

Victims of discrimination seldom have financial resources to saunter into a law office and obtain a top lawyer of their choice. Instead, [they] have to summon their courage to enter that very foreign environment of the courtroom. Once that hurdle is crossed, the discrimination victim will probably have to be willing to publicly reveal a great deal of private information and endure a long and cumbersome process.[36]

Attorney General Heitkamp said that the process of using the courts to settle a matter like this is also costly for taxpayers, and more cost-effective methods can be devised that will protect petitioners as well as the respondent.

She said the Office of Attorney General is very interested in getting additional help to guarantee that citizens who file complaints are referred to the appropriate agency and have an opportunity for enforcement of human rights laws.[37] There is no requirement that assistance provided by the labor commissioner will bind either party. The problem with relying on this mechanism to prevent and remedy discrimination is that the informal process is purely voluntary.[38]

In concluding her presentation, the attorney general told of a Native American youth who expressed hurt and dismay after she and other Native American youth were followed in a Minot convenience store while purchasing snacks.[39] She said listening to the student tell of that event reminded her, once again, how hateful that kind of message can be to a young person.[40]

North Dakota State Legislature

State legislators made presentations before the North Dakota Advisory Committee during both factfinding meetings, and their views are as follows:

Scot Kelsh of Fargo, North Dakota House of Representatives, said the Americans with Disabilities Act, major civil rights legislation passed this decade, provides access to an entire group of people who previously were denied it. The general population currently sees the civil rights issue as somewhat cloudy, and two things need to happen: (1) address the discrimination problem and (2) prevent the decay of progress already made.[41] Every citizen, as well as noncitizens who come to the United States, should be granted the same rights and opportunities.

William Kretschmar of Venturia, North Dakota House of Representatives, discussed constitutional rights of North Dakota citizens, and said that if North Dakota establishes a commission, it should continually remind us of the great privileges of citizenship and how those privileges can, should, and must be maintained if our form of government is going to continue.[42] Representative Kretschmar explained that emphasis should be placed first on issues such as the failures of cities, school systems, and even parenting to assure a stable society.[43]

Marv Mutzenberger of Bismarck, North Dakota House of Representatives, explained that he represents a highly urban district with 13,000 residents. Within that district, about 600 people are Native American, which is the largest number of Native Americans in any district in the State, except those districts that have reservations within them.[44] There are also 1,400 mobile homes and 1,800 apartments constituting some of the poorest people in the district. Burleigh County Housing Authority has low-income housing in the district for well above 500 people, in addition to a senior facility that houses approximately 100, and another facility under construction.[45] The district also has several total care and independent living facilities. Representative Mutzenberger explained, “What I’m really saying is that we have a very high percentage of very vulnerable people, people who have less voice, people who have less power, people who have less mobility . . . .”[46]

He said to determine the extent of discrimination is very difficult and he knew of no social study that has attempted to determine the amount of discrimination that exists in the part of the State he represents, or any part of the State, for that matter.[47]

Native Americans, women, and people with disabilities absolutely experience some discrimination, Representative Mutzenberger said.[48] But he said he doubted that mechanisms to enforce discrimination regulations exist in North Dakota, and if they do, people do not know about them.[49] The North Dakota Department of Labor has some ears, but probably no teeth; and the Denver District Office of the U.S. Equal Employment Opportunity Commission is a long way away for his constituents, which presents the question of who is responsible for tracking complaints, providing education, and acting as an advocate.[50]

Darrell Nottestad of Grand Forks, North Dakota House of Representatives, said that North Dakotans would like to believe that few violations of civil rights exist in the State. However, the State is not free of problems, and violations do exist. Many do not reach a point of public knowledge because the recipients are often faceless and, thus are not newsworthy in the eyes of the media.[51]

Cathy Rydell of Bismarck, North Dakota House of Representatives, stated that North Dakota is only one of two States that does not have a human rights commission;[52] but there is a bigger issue than that for North Dakota, and that is the State’s uniqueness.[53] Regarding whether that uniqueness should carry over in the fact that North Dakota does not a have a formal commission, she said “I’m not sure that’s a leap I wanted to make either,” and that may be one of the reasons why North Dakota has not followed the other 48 States that have commissions.[54] A good human rights commission could be in place, but unless information gets out to the public, it does not do anyone any good.

Although much of what she has experienced with regard to discrimination in the State is anecdotal, Representative Rydell expressed her ongoing amazement regarding people she knows personally who are intelligent, compassionate, caring, and church-going, but who will make racist or discriminatory statements.[55] When she tries to analyze it, she wonders if it is generational, due to national heritage or family values, or media driven, she said.[56] Representative Rydell experienced firsthand hearing derogatory remarks made about an African American strictly because of that individual’s color, and also noted that discrimination occurs on a regular basis against Native Americans. She also told the Committee she has personally experienced gender discrimination in her own career.[57] Representative Rydell closed her remarks by saying that she thought tools are available to address discrimination through agencies such as the North Dakota Department of Labor, and questioned whether people are aware of services, if the services are coordinated, or duplicative, and if there are enough financial resources to get people to those services.[58]

Two representatives were asked if they were aware of or if they could share with the North Dakota Advisory Committee Governor Schafer’s position on the establishment of a human rights commission in North Dakota. Both stated they had never heard a position coming from the Governor.[59]

Both representatives also agreed that if some form of consolidation of commissions and services could be developed without costing the State another penny, the legislature would be more receptive.[60] There is also the fear that a human rights commission would unfairly go after employers accused of discrimination. Representative Rydell said there would need to be coalition building among organizations, major business interests, and small business owners. These entities have to be brought to the table and have demonstrated to them how they can benefit.[61]

Tribal Leadership of North Dakota

Native Americans work and live in North Dakota cities, rural communities, and on Indian reservations.[62] In each of these settings, they deserve and are entitled to fair and equal treatment; however, many Native Americans in the State have experienced numerous forms of discrimination.

Russell D. Mason, Sr., former chairman of the Three Affiliated Tribes said, “For our tribal populations, civil rights enforcement has been infrequent, at best, in North Dakota.”[63] He said problems have persisted for tribal members in obtaining housing, employment, and credit. Despite the presence of some legal mechanisms for redress under North Dakota law, there is a great reluctance on the part of those harmed to try to do anything about their problems, and few attorneys willing to tackle such cases, which are generally not financially rewarding.[64]

Chairman Mason stated that Indian tribes and nations in North Dakota, including the Three Affiliated Tribes and its members, have suffered from discriminatory treatment. A more detailed view is presented in appendix E.[65]

David Gipp, president of United Tribes Technical College in Bismarck, also shared his experiences and views in his written testimony to the North Dakota Advisory Committee.[66] President Gipp, as expressed in appendix F, said that discrimination against Native Americans in the State has been ongoing. Discrimination ranges from “we do not rent to Indians” notices that appeared over 20 years ago in a Bismarck hotel, to United Tribes Technical College students being followed today by security personnel at the local malls and stores in Bismarck.

It is apparent that incidents of discrimination against North Dakota Native Americans continue in the areas of public accommodations, services, housing, credit, and most critically employment.

Indian Affairs Commission

Deborah Painte, executive director of the North Dakota Indian Affairs Commission, told the North Dakota Advisory Committee that the functions of the commission are very broad. The commission’s role is to improve relationships between State and tribal governments, and Native American and non-Native American communities, and to provide educational awareness activities on culture.[67] In some instances the North Dakota Indian Affairs Commission will serve in an informal capacity, such as a mediator or an advocate. Although she does not directly represent Native American people since she is not directly elected by Native American people, Ms. Painte stated that she does advocate for Indian issues and assists in making State government and others aware of Indian needs, concerns, and perspectives.[68] The Indian Affairs Commission does receive discrimination-related concerns from Indian people who contact the office.[69] Ms. Painte said, “More often than not, others who have called our office generally do not pursue their complaints after they find out that they have to go out of State, in some instances, or for local referrals, they have said they have already talked to them [the referral agency].”[70] She said her impression was that they were not satisfied with local or out-of-State remedies.[71]

The Indian Affairs Commission does not handle discrimination complaints, because it does not have any regulatory or enforcement powers.[72] It receives all types of complaints, which are referred to various agencies as appropriate.[73] The Indian Affairs Commission has compiled a list of resources and agencies, both in-State and out-of-State, that handle various types of discrimination complaints. These agencies are contacted when someone comes to the commission with a complaint, and the list of resources and agencies is also provided to the complainant. The commission does not specifically maintain an official log of complaints; however, complaints received are filed along with background information of the incident.[74] Individuals are also advised to contact their State district legislators to inform them of the nature and type of discrimination that occurred.[75] This action is recommended so that the legislative members will become aware of the discrimination problem in North Dakota and understand the need for a local solution in the State.[76] This step was implemented after the human rights commission enabling legislation failed in the State legislature in 1995. Some legislators said they did not know whether the extent of discrimination justified a human rights commission because there were existing remedies, Federal and State laws, and no one had ever contacted them about discrimination. Unfortunately, since the commission does not compile any statistics, it is difficult and almost impossible to determine the number or types of complaints received annually.[77] Ms. Painte shared examples of discrimination brought to the attention of the Indian Affairs Commission Office: 

The Indian Affairs Commission was actively involved with attempting to resolve these situations and/or follow up with the existing agencies that had authority in those areas. Ms. Painte said it was a very frustrating and long process using the existing Federal and State agencies, because it could take years to obtain a remedy. Further, those discrimination incidents that were shared with the North Dakota Advisory Committee reflect that Federal channels were not adequate.[79]

The commission also serves as a liaison between tribal government and State government, and although she does not represent Native American people as an elected tribal official, her sense is that the dialogue between State and tribal government is generally very good and has remained positive despite extremely sensitive issues and incidents.[80]

North Dakota Supreme Court Commission on Gender Fairness in the Courts      

Sandi Tabor, private attorney and member of the North Dakota Supreme Court Commission on Gender Fairness in the Courts, said that in 1987, North Dakota was one of the first States in the Nation to establish a subcommittee to study gender fairness in the judicial system under the auspices of the Supreme Court Judicial Planning Committee.[81] The commission began its work in March 1994, and each member was challenged under the following premise:  

Decisions made or actions taken based on preconceived notions about the nature, roles, and abilities of women and men rather than upon evaluation of each individual situation strike at the heart of the judicial system that promises fairness and impartiality. Gender inequities frustrate and impugn the struggle by judges, lawyers, and litigants alike to achieve justice.[82]

The Supreme Court Commission began its mission of collecting data using three processes. These included sending a survey to judges, attorneys, and court personnel; conducting public hearings; and coordinating gender fairness in the courtroom seminars for attorneys and judges.[83]

Through the hearings, the commission learned that people were concerned about the impact of court unification on access issues, especially in the area of domestic violence.[84] Others voiced concerns about child support and custody issues. There was also some testimony presented about inappropriate courtroom behavior on the part of attorneys and judges.[85] The subcommittee of lawyers and judges reviewed court records and other related data, including available anecdotal and statistical information concerning gender-related issues.[86]

The purpose of the seminars was to provide an education program for attorneys during the information-gathering phase, which defined bias behavior and provided illustrations, but which might have also encouraged dialogue and insight on the climate of courts today.[87] Ms. Tabor told the North Dakota Advisory Committee that through these seminars, she has witnessed the confusion of attorneys and judges about bias behavior.[88] She also said her belief is that gender bias is far more subtle than it was 15 or even 5 years ago, and consequently, it is far more difficult to resolve.[89]

The Gender Fairness Commission found information pointing to the existence of gender inequities in North Dakota affecting both men and women, but more negatively affecting women.[90] Findings of the subcommittee included differential treatment (1) toward women attorneys in and out of the courtroom, (2) toward women by the court in domestic abuse situations, and (3) toward women in the selection of jurors and foremen.[91] Based on the findings, the subcommittee made recommendations for the formation of a commission to study gender fairness in more detail in North Dakota.[92]

In the past 15 years, those practicing law in North Dakota have seen the number of women in the profession increase. In 1974 there were only 3 women practicing law in North Dakota. In 1980 only 67 women practiced law; but by 1995, the number increased by 260 percent to total 241 women.[93] Ms. Tabor said that with the influx of women entering the profession as officers of the court, many attorneys have discovered the behaviors that were once tolerated will be challenged, and challenges to the status quo create controversy. As a result of these findings, the North Dakota State Bar Association and the North Dakota Supreme Court have established a committee to look at mediation and arbitration and at the different mechanisms to take care of some of the concerns.[94] 

Office of Intergovernmental Assistance

Richard Gray, Americans with Disabilities Act/building codes program manager, North Dakota Office of Intergovernmental Assistance, told the North Dakota Advisory Committee that his agency is involved with several programs, including the Americans with Disabilities Act (ADA), section 504 of the Rehabilitation Act, the Fair Housing Act, the State’s Consolidated Plan for the use of U.S. Department of Housing and Urban Development (HUD) funds for the Community Development Block Grant, and the Emergency Shelter Grant Program.[95] In 1992 the Housing Finance Agency for North Dakota and the Office of Intergovernmental Assistance contracted for a housing needs study to provide information for the State’s Comprehensive Housing Affordability Strategy, now referred to as the Consolidated Plan.[96]

Each State must write a 5-year Consolidated Plan, required by HUD, and the Office of Intergovernmental Assistance is the designated agency responsible for North Dakota.[97] In developing the Consolidated Plan, the Office of Intergovernmental Assistance conducted two public hearings in each of the State’s eight planning regions in 1993 and 1994.[98] Participants in every region, both years, clearly communicated the need for the State to enact a State fair housing law that is substantially equivalent to the Federal Fair Housing Act.[99]

In addition to the Consolidated Plan, each State also has to develop a Fair Housing Plan. Specific components of the Fair Housing Plan include the identification and analysis of impediments to fair housing choice.[100] To develop the Fair Housing Plan, a survey was designed to identify both facts and perceptions about housing discrimination in North Dakota.[101] The results of the survey indicated that most respondents believe Native Americans face the most discrimination, and in fact, most of the actual examples of discrimination received were concerning Native Americans.[102] Large families, low-income persons or families, single mothers, persons with disabilities, families with children, Hispanics, persons below age 30, and the elderly followed Native Americans in experiencing discrimination.[103] Very few respondents believed the elderly face any type of discrimination in housing.[104]

The Housing Needs Assessment conducted in 1992 identified under its Action Area the following needs: 

  1. The need to provide training on the Fair Housing Accessibility Guidelines and enforce mandates requiring accessible housing for people with disabilities.

  2. The need to encourage the creation of a State Fair Housing Act and the creation of a human rights commission to enforce it.

  3. The need to provide training on the Federal Fair Housing Act.[105]

Mr. Gray said the next step would be to identify ways to overcome some of the impediments. Plans are to pursue the housing issue over time as the Office of Intergovernmental Assistance deals with HUD programs.[106] However, he was not in any position to say that any particular agency in North Dakota is responsible for carrying out the recommendations of the Office of Intergovernmental Assistance. The North Dakota Office of Intergovernmental Assistance is responsible for compiling the information and data and making the needs known, working with groups to identify and target the needs, and helping and encouraging organizations to take action.[107] Therefore, when calls are received from individuals and attorneys concerning fair housing and the cost of fair housing investigations, and when complaints are received, Mr. Gray said is office tries to tell people to get the grassroots organizations included, not the State.[108] Mr. Gray also said the grassroots organizations are the ones that have to organize to bring the issue forward.[109] “Unfortunately, the push cannot start from the top down, it has got to start from the bottom up, which creates an awareness and everyone shares a common opinion, a common concern that there is a need for a fair housing law in North Dakota.”[110] He added, “It is time for the grassroots organizations to come together, bring their organizational structures together and take something to the legislature.”[111]

The Office of Intergovernmental Assistance primarily provides technical assistance in terms of educating people on fair housing issues.[112] When a housing complaint is received, the citizen is given the toll-free number to HUD’s, Denver office, and it is up to the individual to make the initial contact.[113]

Mr. Gray said, “If [a] complaint falls under section 504 of the Rehabilitation Act, which addresses disabilities, the Office of Intergovernmental Assistance has a responsibility as a State agency distributing Federal dollars to actually monitor compliance of our grantees with various aspects of the 504 requirements.”[114] The agency provides information and tries to get both parties talking to each other. As a last resort, individuals can complete a 504 complaint form which would be sent to HUD.[115] Mr. Gray said he receives numerous ADA complaints and attempts to provide education for both parties.[116] With regard to section 504 of the Rehabilitation Act and the ADA, the Office of Intergovernmental Assistance receives numerous inquiries from rural areas, but people generally are afraid to do anything official because they live and work in those small communities and they do not want to rock the boat, he said.[117] To summarize, the Office of Intergovernmental Assistance’s links are either the U.S. Department of Justice, for ADA issues concerning agencies that receive Federal funds; HUD’s Office of Community Planning and Development Office for issues concerning program and facility accessibility discrimination; and HUD’s Fair Housing Equal Opportunity Office for housing discrimination complaints.[118]

Office of the Mayor, City of Fargo

Fargo Mayor Bruce Furness addressed the North Dakota Advisory Committee at the Fargo factfinding meeting stating that cultural diversity is not viewed as a problem in the city of Fargo as evidenced by the low number of discrimination complaints.[119] “We want to think of it as a positive and welcome these people into our community and to understand their cultures and celebrate our differences and learn from them.”[120] Mayor Furness was particularly aware of discrimination against Native Americans and said that discrimination is probably still occurring.[121] He explained that he was not saying that discrimination does not exist, but complaints are not coming into his office.[122] He admitted that the opportunity for discrimination to occur is escalating because Fargo’s minority population is increasing.[123] In 1980 approximately 2 percent of Fargo’s population were minorities; and by 1990 about 4 percent or 4,400 residents were minorities.[124] The city has reacted to the increased minority population by trying to accept it and work with the various minority populations who now live in Fargo; and part of that acceptance, said Mayor Furness, “is to try to understand their needs . . . and to try to help them understand our needs and work together so that we can really celebrate the cultural diversity that we have in our community rather than consider it to be a problem.”[125]

To illustrate their efforts, Mayor Furness explained the city’s use of the Cultural Diversity Project, a nonprofit organization that conducts diversity and multiethnic leadership training, in an attempt to educate people about the various cultures in the Fargo community, and to make people aware of the changes going on in the community. The Cultural Diversity Project is also an attempt to get people to work together so that everyone can live in harmony in the community.[126] Some specific efforts include a translation service that enhances communication between new minority residents, other organizations within the community, and agencies such as the city Department of Health and the police department.[127] A second initiative of the Cultural Diversity Project involves bringing together city government department heads and representatives of various cultures within the Fargo community to promote understanding and determine if the city government was putting up hurdles, and if so, what the city could do to minimize or limit them.[128] Mayor Furness told the North Dakota Advisory Committee that the city has not addressed the gang issue or cultural diversity training within the ranks of the police department as they specifically relate to Hispanics.[129] However, some city departments have gone through cultural diversity training provided through the U.S. Department of Justice, and there is a goal for every employee to participate in a training class.[130]

However, when asked how an individual would file a complaint with the City of Fargo, Mayor Furness said the city does not have a formal mechanism in place.[131] He explained that the City of Fargo had no plans to set up a function of government to handle complaints at the city level, but if some type of function were established at the State level, Fargo would establish a similar operation.[132] He added that during the discussions with various ethnic groups, the question of a vehicle to file a complaint was not raised, nor did a suggestion come up, and conceded that he could envision where a conclusion might be, “there’s no place to register a complaint, then it doesn’t do any good to have a complaint.”[133]

Office of Community Relations, City of Grand Forks

Holly Jeanotte Marion, director, Office of Community Relations,[134] City of Grand Forks, stated that she works with individuals who have experienced disparate treatment.[135] The Office of Community Relations was established to protect not only the rights of individuals who fall within the government’s definition of protected classes,[136] but to address sexual harassment, disability, social, economic, and public assistance issues where people may be treated differently. For the past 4 1/2 years, the Office of Community Relations has been the only local government office in the State to respond to various discrimination complaints, except for employment discrimination complaints which are handled by the North Dakota Department of Labor.[137]

Due to the North Dakota Flood of 1997, funds were reallocated and the office was closed in December 1997. Ms. Marion was the office’s only staff member. The Office of Community Relations had served all four Native American reservations in North Dakota, and additional inquiries and complaints were received from Fargo, Bismarck, Devils Lake, Williston, and Jamestown. Because of the office’s ability to assist people, many former college students who continued to have ties with the Grand Forks community contacted the office. Those calls came from places as far away as Georgia, Texas, South Dakota, and Montana.

In 1992 Ms. Marion investigated 31 complaints and responded to and referred 75 to 100 telephone inquiries. Between 1992 and 1996, the number of complaints received rose dramatically, from 31 to 167. In 1997 (January through September) the office received 71 complaints (see table 3). The complaints primarily concerned housing discrimination, sexual harassment, and racial discrimination. But the Office of Community Relations accepted discrimination complaints in a broad range of categories as also shown in table 3. The myriad and number of complaints clearly demonstrates that people desperately need assistance, information, and an agency equipped to receive, process, and enforce the rights of North Dakota citizens. She also attributed the growth of the number of complaints filed to the fact that people were becoming more aware of the Office of Community Relations.[138]

Ms. Marion said statistics surrounding disabled issues would be tenfold if people were not afraid of losing their housing or employment once they complained. Many people with disabilities are told that the system is doing them a favor and they should be grateful; therefore, they do not file complaints.[139] Table 3 clearly shows that complaints are growing. Ms. Marion also said she has seen a difference in treatment of minority citizens. She said the City of Grand Forks has over 2,000 minorities, but her data indicate that single mothers with children suffer the most discrimination.

Ms. Marion explained that her duties are to mediate, conciliate, and refer. Obstacles for relief are numerous, such as attorneys who will not sue businessmen and long and tedious litigation for disparate treatment or discrimination. She shares one case:

An African American woman, employed in Grand Forks, was approached by her supervisor who wore a bed sheet and a cross, and called her “Buckwheat” when he wanted her attention, while in the presence of customers. A comment was made to her by the supervisor, “If Lincoln hadn’t freed the slaves, what would you have done?” The employee was subsequently fired and the incident was referred to the North Dakota Department of Labor. The case was investigated (which took about 10 months), and a no-cause determination was issued. The complaint was appealed to the North Dakota Job Service, and at the hearing, an attorney represented the employer, while no one represented the employee. The case was denied because the employee was not specifically called black and there was no direct proof that she was fired because of her race. Fortunately, before another appeal took place, the EEOC overturned the North Dakota Department of Labor’s decision. The young lady accepted a settlement and moved away.[140]

Ms. Marion had requested that as part of the settlement, the incident be published in the newspaper; however, that request was denied. Ms. Marion said these are not isolated cases and similar ones occur in other cities throughout the State.[141]

She summarized that resources and staff are sorely needed to do followup, and mediation and conciliation are effective. Education and avenues or litigation should be major priorities. She concluded that the majority of minorities are satisfied with the status quo because they have to be. If they speak up, they will “rock the boat and fall off,” and consequently, they are reluctant to come forward and will not indicate their need for assistance. The reality is that North Dakota is a rural State, and when discussion ensues concerning civil rights, people align it with Martin Luther King, Jr., and blacks, not rights for all, she concluded.[142]

Table 3  Office of Community Relations, City of Grand Forks, Discrimination Complaints Filed 1992–97  









Bases of complaints  













Familial status3















Indian child welfare






Inappropriate behavior




Policy compliance4
































Housing accessibility
















Sexual harassment






























Source: Holly Jeanotte Marion, director, Office of Community Relations, City of Grand Forks.
Note: An additional 42 nondiscrimination-related inquires were received. 

1 Data compiled for months January through September. The office was inoperable for 5 months and staff were reassigned due to the North Dakota Flood of 1997. If the office had been fully operational, staff expected the total to exceed 200 for 1997.
2 Persons considered low income seeking assistance in housing, employment, and social services.
3 Familial status refers to families with children.
4 Persons who believe that a city, county agency, or business is not following its own policies.
5 The following do not fit in a category. Examples include dental services and educational neglect and truancy.




[1] John Schneider, statement before the North Dakota Advisory Committee to the U.S. Commission on Civil Rights, at its planning meeting in Fargo, ND, Dec. 7, 1995, p. 1. Mr. Schneider has held the position of U.S. attorney since October 1993.

[2] John Schneider, transcript of factfinding meeting conducted by the North Dakota Advisory Committee to the U.S. Commission on Civil Rights in Fargo, ND, Sept. 24, 1997, vol. 3, p. 5 (hereafter cited as Transcript 3).

[3] Ibid., pp. 5–6.

[4] Clare Hochhalter, transcript of factfinding meeting conducted by the North Dakota Advisory Committee to the U.S. Commission on Civil Rights in Bismarck, ND, May 16, 1996, p. 127 (hereafter cited as Transcript 2).

[5] John Schneider, Transcript 3, vol. 3, p. 6. The U.S. Attorney’s Office in North Dakota, the smallest in staffing in the country, is an agency of the U.S. Department of Justice.

[6] Ibid., p. 10.

[7] Ibid., p. 8.

[8] Ibid., p. 13. Staff of the U.S. Attorney’s Office include clerical workers; attorneys; FBI drug enforcement or alcohol, firearms and tobacco clerks; judges; U.S. Marshals, etc. However, none of the staff was Native American.

[9] Ibid., p. 11.

[10] Deborah Painte represented the Governor at both the Bismarck and Fargo factfinding meetings conducted by the North Dakota Advisory Committee.

[11] Deborah Painte, Transcript 2, p. 207.

[12] Deborah Painte, Transcript 3, vol. 1, p. 40.

[13] Ibid., p. 40.

[14] Ibid., pp. 27–28. This incident occurred on Sept. 2, 1997, along Highway 1806, south of Mandan, ND. The majority of traffic on the road is local, although tribal members do travel the route on their way to the Bismarck area. Travel of tribal people increases significantly during the Pow Wow. Patrols had been conducted in that vicinity for 20 years without any complaints.

[15] Ibid., pp. 28–29. Safety checkpoint procedures require patrol officers to check every 5th or 10th car, the exact number is determined beforehand. This procedure avoids singling out any one individual or a class of people.

[16] Ibid., p. 29.

[17] Ibid.

[18] Ibid.

[19] Ibid., p. 29. The next “Capitol for a Day” was scheduled for New Town where leaders of the Three Affiliated Tribes would have an opportunity to meet with members of the Governor’s cabinet.

[20] Ibid., p. 30.

[21] Ibid., p. 32. The 1995 legislature passed legislation to make the commissioner of labor an appointee of the Governor, once the current term has expired. North Dakota Department of Labor, 1995–1997 Biennial Report, released Dec. 1, 1997, p. 1.

[22] Ibid.

[23] Ibid., p. 30.

[24] Ibid., pp. 32–33.

[25] Heidi Heitkamp, Transcript 2, p. 278.

[26] Ibid.

[27] Ibid.

[28] Ibid., pp. 278–79.

[29] Ibid., p. 282.

[30] Ibid.

[31] Ibid.

[32] Ibid.

[33] Ibid., p. 283.

[34] Ibid., p. 284.

[35] Ibid., p. 285.

[36] Ibid.

[37] Ibid., p. 289.

[38] Ibid., pp. 284–85.

[39] Ibid., pp. 279–80.

[40] Ibid., pp. 280–81.

[41] Scot Kelsh, Transcript 3, vol. 2, pp. 118–119. Representative Kelsh serves on the Interim Judiciary Committee currently studying discrimination in the State.

[42] William Kretschmar, Transcript 2, p. 112.

[43] Ibid., p. 113.

[44] Marv Mutzenberger, Transcript 2, pp. 116–17. Mr. Mutzenberger became a State senator in 1997.

[45] Ibid., p. 117.

[46] Ibid.

[47] Ibid., pp. 117–18.

[48] Ibid., p. 118.

[49] Ibid. He said his constituents do not know what to do or where to go.

[50] Ibid.

[51] Darrell Nottestad, Transcript 3, vol. 2, p. 115.

[52] Cathy Rydell, Transcript 2, p. 120.

[53] Ibid., pp. 120–21. One unique aspect of North Dakota is that it is the only State that does not have voter registration. Ibid., p. 121.

[54] Ibid., p. 121.

[55] Ibid., p. 122.

[56] Ibid.

[57] Ibid., p. 124.

[58] Ibid., pp. 124–25.

[59] Cathy Rydell and William Kretschmar, Transcript 2, p. 149.

[60] Ibid., pp. 154–55.

[61] Cathy Rydell, Transcript 2, p. 156.

[62] Four Indian reservations—Fort Berthold, Spirit Lake, Standing Rock, and Turtle Mountain—and the Trenton Indian Service Area, are located in North Dakota.

[63] Russell D. Mason, Sr., chairman, Three Affiliated Tribes, Fort Berthold Indian Reservation, letter to John F. Dulles, regional director, U.S. Commission on Civil Rights, Rocky Mountain Regional Office, Sept. 16, 1997.

[64] Ibid.

[65] Russell D. Mason, chairman, Three Affiliated Tribes, Fort Berthold Indian Reservation, New Town, ND, written statement to the North Dakota Advisory Committee to the U.S. Commission on Civil Rights, Sept. 24, 1997, pp. 1–5.

[66] David Gipp, president, United Tribes Technical College, Bismarck, ND, written testimony to the North Dakota Advisory Committee to the U.S. Commission on Civil Rights, Sept. 24, 1997, pp. 1–3.

[67] Deborah Painte, Transcript 3, vol. 1, pp. 37–38.

[68] Ibid., p. 46. Ms. Painte was not elected to this position but was originally appointed executive director of the Indian Affairs Commission in October 1992 by former Governor George Sinner and subsequently reappointed in 1993 by current Governor Edward Schafer. Tribal governments are sensitive to those persons who state they represent Indian people if they are not elected and/or appointed directly by Indian people. Tribal councils or other tribally elected officials legally represent their respective tribal memberships and speak on their behalf.

[69] Deborah Painte, Transcript 2, p. 207.

[70] Ibid., p. 213.

[71] Ibid., pp. 213–14.

[72] Ibid., p. 208.

[73] Deborah Painte, Transcript 3, vol. 1, p. 33. Complainants are referred, for example, to the North Dakota Department of Labor or to a Federal agency located in Denver.

[74] Ibid., p. 33.

[75] Ibid., p. 34.

[76] Deborah Painte, additional comments to clarify her statements made to the North Dakota Advisory Committee to the U.S. Commission on Civil Rights, at both factfinding meetings (May 16, 1996 in Bismarck and Sept. 24, 1997 in Fargo), correspondence, Mar. 10, 1999 (hereafter cited as Deborah Painte letter).

[77] Deborah Painte, Transcript 3, vol. 1, p. 35. The number of complaints filed with the Indian Affairs Commission can be counted, but any reports tallying those numbers would misrepresent the pervasiveness of the problem because of the low number actually received in the Indian Affairs Commission Office. Most Indian people do not report discrimination complaints for several reasons, such as they do not know who to report them to, or they believe nothing can be done. Some, however, report their complaints to an existing agency such as the North Dakota Department of Labor. Ms. Painte believes discrimination complaints are greatly underreported.

[78] Deborah Painte, Transcript 2, pp. 209–12.

[79] Deborah Painte letter.

[80] Deborah Painte, Transcript 3, vol. 1, pp. 38, 46.

[81] Sandi Tabor, Transcript 2, p. 85. Ms. Tabor is now executive director of the North Dakota State Bar Association.

[82] Ibid., pp. 89–90. Supreme Court Commission work was conducted under the direction of Chief Justice Gerald VandeWalle. The commission consists of 26 members broken into five working committees established to evaluate specific tasks and issues in various areas of substantive law. Ibid., p. 90.

[83] Ibid., pp. 90–91. The survey involved the development and distribution of three formats, one for each group. 1,301 surveys were sent to attorneys, 211 to court personnel, and 144 to judges. The surveys were divided into several categories, including judicial intervention, courtroom interaction, professional conduct, domestic violence, family law, criminal law, and courtroom styles. Ibid., p. 91.

[84] Ibid., p. 92. In 1991 legislation was enacted unifying the existing two court systems, county court judges and district court judges, into one system. The legislation eliminated county court judges and reduced the number of district court judges to 42 by 2001. Citizens were concerned that their access to the court system would be even more limited, particularly with regard to requesting emergency orders for domestic violence, etc.

[85] Ibid., pp. 92–93.

[86] Ibid., p. 85. The committees included domestic law, criminal and juvenile law, professional conduct, jury service, judicial system demographics, and data collection (the heart of the commission). Ibid., p. 90.

[87] Ibid., p. 93.

[88] Ibid. Ms. Tabor said that although the information gathered is not available now, the final report will be submitted for publication by the North Dakota Law Review in the fall of 1995, Ibid., p. 92. The report “A Difference in Perceptions: The Final Report of the North Dakota Commission on Gender Fairness in the Courts,” was published in North Dakota Law Review, vol. 72, no. 4, 1996.

[89] Ibid., p. 93.

[90] Ibid., p. 85.

[91] Ibid., pp. 85–86.

[92] Ibid., p. 86. In the late 1980s, the North Dakota Supreme Court provided money in its budget for the establishment of a commission, but because of a tax referral initiative, funds were eliminated. In March 1994, however, the North Dakota Supreme Court did establish a Commission on Gender Fairness in the Courts, which has been meeting regularly since that date.

[93] Ibid., pp. 88–89.

[94] Ibid., pp. 89, 100.

[95] Richard Gray, Transcript 2, p. 22.

[96] Ibid., pp. 22–23.

[97] Ibid., p. 23.

[98] Ibid. The State is divided into eight sections that make up the eight planning regions.

[99] Ibid.

[100] Ibid., p. 24. In January and February 1996, a statewide survey was conducted of State agencies, cities with populations over 2,500, public housing authorities, and numerous nonprofit entities.

[101] Ibid., p. 24.

[102] Ibid.

[103] Ibid., pp. 25–26.

[104] Ibid., p. 25.

[105] Ibid., pp. 23–24. An Action Area refers to a specific part of town or a community where housing issues need to be addressed.

[106] Ibid.

[107] Ibid., p. 61.

[108] Ibid., pp. 61–62.

[109] Ibid., p. 62.

[110] Ibid.

[111] Ibid.

[112] Ibid., p. 47.

[113] Ibid.

[114] Ibid. Grantees are organizations that receive Federal funds through the State.

[115] Ibid.

[116] Richard Gray, Transcript 2, p. 48. The Office of Intergovernmental Assistance has received a few title II complaints which pertain to governmental entities and accessibility of public buildings, and actually provided some guidance, in addition to assisting in the filing of complaints under title III (accessibility to business facilities). Mr. Gray said he was not sure if any of the complaints had gone through because the office has no way of tracking that.

[117] Ibid., p. 51.

[118] Ibid., p. 49.

[119] Bruce Furness, Transcript 3, vol. 1, pp. 9–10.

[120] Ibid., p. 13.

[121] Ibid.

[122] Ibid., p. 10.

[123] Ibid.

[124] Ibid.

[125] Ibid., p. 11.

[126] Ibid. The Cultural Diversity Project, in its 4th year, was sponsored the first 3 years by funds of the Pew Charitable Trusts Foundation. The Pew Foundation makes grants available for civic, arts, education, and other issues. Currently, the project is funded wholly by city government and private contributions.

[127] Ibid., p. 12. The translation service puts individuals who speak a certain language with someone from the community who speaks the same language.

[128] Ibid., p. 13. The project was conducted by North Dakota State University, Fargo, ND.

[129] Ibid., p. 23.

[130] Ibid., pp. 25–26.

[131] Ibid., p. 17. The question was asked by a North Dakota Advisory Committee member.

[132] Ibid.

[133] Ibid.

[134] Holly Marion, Transcript 3, vol. 1, p. 47. The Office of Community Relations was established in May 1992, the result of a citizen march on City Hall demanding that the city address discrimination.

[135] Ibid. Disparate treatment occurs when a person is treated differently from the main population based on a characteristic that he or she may have. Ms. Marion preferred to use the term disparate treatment rather than discrimination because she has found that “discrimination” scares people away.

[136] Ibid., p. 48. Protected classes include women, ethnic minorities, and people with disabilities.

[137] Ibid.

[138] Ibid., pp. 51–52.

[139] Ibid., pp. 57–58.

[140] Ibid., pp. 52–54.

[141] Ibid., p. 54.

[142] Ibid., pp. 55–56.