Civil Rights Enforcement Efforts in North Dakota

Chapter 6

The Need for a Human Rights Agency in North Dakota 

Federal, State, Tribal, and Local Government Comments

Assistant U.S. Attorney Clare Hochhalter, North Dakota, said he witnessed discrimination directed toward women and other minority groups, most notably Native Americans, all the time.[1] He also saw the effect of discrimination especially on young children with regard to a physical or mental handicap; they do not get the kinds of educational services that the law entitles them to, and consequently many of them grow up to be offenders.[2] He said education and a centralized entity of some kind is definitely at the forefront of what needs to be considered.[3] U.S. Attorney John Schneider said the protection of people’s basic rights should be paramount, and he hoped that North Dakota’s legislators are cognizant of this.[4] He said a State agency is needed in North Dakota where citizens can call and file or report a complaint of discrimination and receive assistance.[5] U.S. Attorney Schneider said that an agency is needed that has the title and staff who can help North Dakotans.[6]

While Governor Schafer did not appear before the North Dakota Advisory Committee, he asked the former executive director of the North Dakota Indian Affairs Commission, Deborah Painte, to represent him again at the Fargo factfinding meeting of the North Dakota Advisory Committee. She stated:

The Governor is reluctant at this point to endorse creation of a separate North Dakota human rights commission.[7] In recent years, North Dakotans have resisted creating new levels of government. They worry about new costs to taxpayers, new burdens of bureaucracy, and the lack of any assurance that an extra layer of government will improve people’s conditions. The Governor and many legislators share those concerns.[8]

Ms. Painte said before the question of a human rights commission is addressed, there is important work to be done at the State level because the nature and extent of discrimination in the State are still unclear.[9] She said, “Your committee will certainly give us a better sense of the situation out there, but there is a State role as well.”[10]  Ms. Painte recapped the failure of a resolution to study the necessity of a human rights commission in North Dakota during the 1995 legislative session, and its approval during the 1997 legislative session. She indicated that legislative action clearly signaled that lawmakers are now willing to step up to this potentially controversial issue.[11] The Interim Judiciary Committee of the North Dakota Legislature is trying to assess not only the number of incidents, but also their exact nature and the various authorities that exist for addressing them.[12] Ms. Painte said that the Indian Affairs Commission and the Governor’s Office are eager to cooperate and work closely with State legislators during the study.[13]

Speaking on behalf of the North Dakota Indian Affairs Commission, Ms. Painte stated that North Dakota citizens have no single place to turn to if they have discrimination complaints; they lack information and are intimidated, frustrated, and confused.[14] She suggested creating a “one-stop shop,” a single place in State government for people to call or visit if they have faced discrimination, and explained that a one-stop type of clearinghouse could be effective and avoid the creation of a complicated and expensive bureaucracy absent of data on the true extent and nature of discrimination complaints in North Dakota. A central point in State government to collect this information would aid in determining what kind of agency or structure would be appropriate.[15]

Former chairman of the Three Affiliated Tribes, Russell Mason, Sr., wrote he did not believe that mechanisms exist in North Dakota to allow civil rights violations to be remedied.[16] He stated, “A state agency charged with the task of providing education about civil rights and the investigation of civil rights complaints, and empowered to bring appropriate actions is certainly the answer.”[17] He also stated one of the most important goals of any human rights commission is to educate, not just employers, but also employees “about how to recognize a discriminatory act and what can be done about it.”[18]

Chairman Mason in closing wrote:

Those . . . who say that no human rights commission is needed have simply not faced discrimination and felt its devastating consequences when no remedy to correct the discrimination was readily available. Without an agency ready to tackle problems of discrimination head on, the true extent to discrimination in North Dakota will never be known.[19]

David Gipp, president of United Tribes Technical College, wrote, “Given the history of treatment of Indian people by our government, it has been difficult for me to understand why our State Legislators do not believe a State human rights commission is necessary . . . .”[20] He said a State human rights commission would essentially be locally controlled, and for United Tribes and its students, it would be immediate access to an agency that could produce relatively quick results.[21]

Erich Longie, president of Cankdeska Cikana Community College in Fort Totten, North Dakota, addressed the North Dakota Advisory Committee and said a commission needs to be established for the sake of all young people in the State.[22] Because of the expanding population on all reservations, more and more Native American children are required to attend schools off the reservation, said President Longie. As a result, reports from Indian children of institutionalized prejudice and racism have increased.[23] He said it is subtle and it needs to be addressed.

William Kretschmar, North Dakota House of Representatives, said he thinks there should be a commission in the State, not only to help individuals, but to remind us all that we have to protect our constitutional rights “if we’re going to continue to be a great Nation and we’re going to continue to be a good place for Americans to live.”[24]

Marv Mutzenberger, North Dakota House of Representatives, said that the lack of resources, enforcement, finances, education, and advocates point to the need for some mechanism, be it a human rights commission or some other entity to look out for the rights of people who are very vulnerable.[25] He said some mechanism definitely is needed, and other people agree.[26]

Representative Mutzenberger also discussed an account of a student who experienced racial discrimination in 1992. The student took his dispute to the Indian Affairs Commission, the North Dakota Advisory Committee to the U.S. Commission on Civil Rights, Bismarck Job Service, Veterans Administration, the Bismarck Tribune newspaper, and one of North Dakota’s U.S. Senators. The only recommendation he was given was to continue communicating with each agency.[27] Representative Mutzenberger said the Bismarck Tribune thinks a human rights commission is necessary, and he would at least advocate studying the issue. He said, “It seems to me there’s some need for enforcement, for education, and for advocacy.”[28] He also said, “I think if there were some mechanism that was very visible, we would have more people accessing that system.”[29]

Cathy Rydell, North Dakota House of Representatives, said if the formation of a human rights commission will take care of discrimination against Native Americans, or at least move the State in the right direction, “I would be for it 100 percent, but I don’t see that at this point.”[30] She said if the mission of a commission was to determine what services exist, if they are coordinated and cost-effective, and if the right people get the right information, it probably would have a great benefit.[31] She said, “If I can learn enough and be convinced that it’s a necessary body that will have a defined role and will help eliminate some of the duplication, misinformation, and financial waste that we see everyday then I can be supportive, but I need to be taught.”[32] She also said the only way to deal with discrimination in North Dakota is one person at a time. “But I will challenge this committee to decide if this is the best mousetrap and it’s not going to duplicate what’s already out there,” she added.[33]

Attorney General Heidi Heitkamp said she thinks that “a commission established to review human rights issues in our State could do a lot of good.”[34] She suggested identifying all existing commissions within State government, possibly reducing the number of commissions, and creating instead a body that has, perhaps, more enforcement authority, but also has a broader mission than just combating gender-based, race-based, or age-based discrimination.[35] Regarding the number of existing commissions (Commission on Aging, Commission on the Status of Women, etc.) she said, “It would be a good idea to combine many of these good groups and begin to take a look at a commission on human rights and give that commission additional enforcement support and investigation ability.”[36] She also noted that the human rights commission would have to be adequately staffed with the right kind of people.[37] If a human rights commission were established, Attorney General Heitkamp said she would also prioritize components of the commission with the most important component being mediation, then public education. One cost-effective method could be a form of binding arbitration, although she did not know if it would be the answer in cases of discrimination.[38] Discrimination is an issue that needs to be addressed, and establishing a human rights commission with the authority to consider the problem and establish effective, preventive, and remedial measures is a good idea, said Attorney General Heitkamp.[39]

Speaking as a private citizen, Commissioner of Labor Craig Hagen said that he would support a resolution to study the issue of discrimination beyond the scope of employment before he would support the creation of a human rights commission.[40] He also agreed with Attorney General Heitkamp’s idea that the consolidation of other commissions would be progressing in the right direction. He said the only way that the concept would succeed in the legislature is to demonstrate that the number of boards and commissions could be reduced and replaced with one body.[41] However, he said that studying the pervasiveness of discrimination and the avenues needed to address it would be more appropriate.[42] He also did not think North Dakota would want to go to the extent that, for example, Montana does in suing in court on behalf of the complainant.[43]

The North Dakota Office of Intergovernmental Assistance, from the results of a Housing Needs Assessment it conducted, recommended, among other things, the creation of a human rights commission to enforce fair housing.[44] Richard Gray, building codes program manager, further elaborated that with the creation of a human rights commission, fair housing could be addressed within such an agency.[45]

Sandi Tabor said she would not, while representing the Gender Fairness in the Courts Commission, take a position on supporting a study, or supporting a human rights commission

It’s just my gut reaction, the Gender Fairness Commission is going to focus more on what the court should be doing specifically, and the chances of them suggesting that a human rights commission be formed is just something that I think is probably outside of the purview of their charge from the supreme court.[46]

Mayor Bruce Furness, City of Fargo, although he did not specifically make a recommendation to establish a human rights agency, stated, “It is something I would certainly entertain based on a need.”[47]

Holly Jeanotte Marion, former director, Office of Community Relations, City of Grand Forks, said there needs to be a resource where people can go and not be afraid but be comfortable.[48] She suggested using terminology such as “human rights” and “disparate treatment” rather than “civil rights” and “discrimination” because such phrases tend to scare people.[49]

Business Community Comments

Dale Anderson, president of the Greater North Dakota Association (GNDA), said the organization believes the State’s discrimination policy, the Human Rights Act, is strong and that there is an effective awareness campaign that will continue to exist.[50] The enactment of a human rights commission would require staffing and budgets, and therefore would generate added pressure on the overall allocation of the general fund dollars. He said all priorities must be carefully examined with respect to limited general fund revenue before any new programs are considered.[51] The GNDA, he said, has a very strong policy to provide equal employment opportunities to employees, and he believes that proper education for employers is the most effective method of providing equal employment opportunities.[52]

He said the GNDA plans to maintain a high priority in the research and education area. The current enforcement mechanisms dealing with discrimination, he said, are doing an effective job and he concluded, “We do not believe that the extent of discriminatory problems warrant a North Dakota human rights commission.”[53]

Francis X. Kartch, Jr., executive director of the North Dakota Small Business Survival Committee, in opposition to a human rights commission, wrote, “What is this human rights commission supposed to do? Investigate and enforce? Change human nature? Educate? Scold?”[54] He stated that discrimination exists; however, “North Dakota already offers several avenues for legal action if somebody breaks the law . . . .”[55] He further wrote, “A commission charged with enforcement will be forced to prove that business owners discriminate to justify the commission’s existence.”[56] In closing his written statement, Mr. Kartch said, “The vast majority of small-business owners have no desire to discriminate . . . no desire of jumping through bureaucratic hoops to prove our innocence . . . [and] our organization will vigorously oppose any legislation to create a North Dakota human rights commission.”[57]

Private/Community Organization Comments

Other individuals in favor of the establishment of a human rights commission included Elizabeth Sweet of the North Dakota Federation of Families for Children’s Mental Health,[58] and Eileene Olson of the Dakota Center for Independent Living.[59]

Keith Elston, director of the American Civil Liberties Union, North Dakota chapter, said recognizing the need for an enforcement agency made the creation of a North Dakota human rights commission a legislative priority.[60] The American Civil Liberties Union was engaged in a comparative study of human or civil rights agencies around the country in order to provide a context for the creation of a human rights commission in North Dakota.[61] Although the study was not complete, Mr. Elston shared information on agencies polled so far.[62] A summary of data collected showed:

Twelve States have mechanisms that operate as independent agencies.[64] Thirty-one States appear to have independent, fully functioning human rights agencies or civil rights agencies created by an act of the State legislature.[65] To that end, the American Civil Liberties Union helped develop a coalition of legal, professional, religious, business, and social justice organizations to spearhead an effort to introduce legislation in the 1997 legislative session.[66] Mr. Elston said to the best of his knowledge there are no agencies, either public or private, that are dedicated to addressing discrimination in the areas of public accommodations, State and local government services, or credit transactions in North Dakota.[67] He went on to say that there is: 

The American Civil Liberties Union strongly believes that the creation of an independent human rights commission by the North Dakota Legislature would go a long way toward fulfilling the promise of equal opportunity made to the residents of North Dakota by the legislature through the North Dakota Human Rights Act.[69] A human rights commission could lessen the load of the courts in North Dakota by being able to settle disputes that probably do not need to go into the courts.[70] A human rights commission also could provide education and develop strategies with employers to create a better environment for employees.[71] Mr. Elston stated that he has experience with the Kentucky Human Rights Commission, and it uses the alternative dispute mechanism frequently. In fact, it litigates very few cases because it is successful with that mechanism.[72]

One of the real advantages of having a human rights commission is the public education work that can be done to let people know what their rights are, how they can go about filing a complaint, and what they can expect to happen as a result of that complaint.[73] In a State as geographically spread out as North Dakota, an education program would require funding. Because there is not an agency in the State that is either willing to provide education or has any authority, there is a huge gap in the services that need to be provided to citizens.[74] The best solution, according to Mr. Elston, is for the legislature to finish the job it started in 1993 and create a human rights commission that has the authority and the funding to do the public education work that is necessary. “Then we can avoid a lot of the problems that people are facing right now,” he said.[75]

Linda Catalano, executive director of Legal Assistance of North Dakota, said there is a tremendous need for public education.[76]

Lynda Johnson, former executive director of the North Dakota Fair Housing Council, said that with the creation of a human rights commission, the State would hear much more about the extent of discrimination, particularly age discrimination, because if people can see that there is some success, that there is an agency that will fight for them, they would be more apt to come forward.[77] She said that many cases of discrimination probably go unheard because people have given up and said, “What’s the use? You know, I can’t afford an attorney, there’s no remedies for me, I guess that’s just a way of life that I need to accept.”[78] Ms. Johnson said that she agrees with the concept of a human rights commission in North Dakota that has enforcement powers to deal with issues that, to this point, have been without remedy.[79]

Dave Boeck, supervising attorney of the Protection and Advocacy Project, said a human rights commission could provide much education and prevent the denial of civil rights. The human rights commission would be a central point to register complaints with experienced staff on civil rights issues and to advise citizens if their complaints are legitimate or not.[80] He also said the success of any human rights commission in North Dakota will depend on what powers it is given under the statute that is created for it, how it is staffed, and its budget. He said, “You can write a great statute, but if you do not have people who are genuinely interested in enforcing the law, hired to put the law in motion, and have limited resources, then we’re just wasting time.”[81] Moreover, the mechanism that is put in place cannot be a governing body that is subject to political pressure.[82]

Mr. Boeck’s vision of a human rights commission included an education component providing information on all forms of discrimination; second, an outreach component that would identify victims of discrimination and inform them of their rights and where they could go for help; and third, a component where investigators could coordinate mediation, resolution, and represent complainants in court.[83]

Myrt Armstrong, former executive director of the North Dakota Mental Health Association, said that a human rights commission would be a place where individuals could go to directly and at least get the process started locally rather than having to go out of State. Having a local agency also means people might obtain a better understanding of what is actually going to happen with their complaint.[84]

Gerard Friesz, executive director of the Public Employees Association, said that a commitment to further explore the establishment of a human rights commission is terribly important.[85] He identified three elements that would be essential to having an effective civil rights mechanism: affordability, accessibility, and expeditiousness.[86] If a human rights or civil rights commission could develop mechanisms such as mediation or arbitration, where there would not be a need for attorneys, that might be more feasible and may be a more accepted option.[87] He said a human rights commission may provide a less cumbersome, less legalistic avenue that might expedite the handling of a grievance. In fact, people may feel when they walk away—win, lose or draw—they had a better chance of success, simply because it did not look as though the cards were all stacked up against them.[88] Mr. Friesz said, from his dealings with State workers, that has clearly been the impression that they have been left with.[89]

Citizen Comments

Cheryl Red Eagle, columnist for the Bismarck Tribune, responded that there is no centralized place to collect statistics on discrimination in the State. “The plain fact of the matter is that people in North Dakota don’t want to know,” she said. They were offered the perfect opportunity during the last (1995) legislative session to fund a study to provide them facts.[90]

Ora Robinson, former chair of the Martin Luther King, Jr. Holiday Commission, said a human rights commission is needed and the people of the State must be proactive instead of reactive. Dollars must be budgeted to fund an agency that will take and maintain a firm position to alleviate discrimination.[91]

Denny Portra, a Native American small business owner, said if a human rights commission were in place, people could at least presumably obtain representation.[92] The commission could probably get answers where as an individual cannot get answers, he said.[93]

Lynn Iverson, a disabled resident of Bismarck, expressed her support for the establishment of a commission in the State for the enforcement of civil rights because discrimination exists and has a profound effect on people’s lives.[94] She said, “I really firmly believe with all my heart that we need an independent, accessible, affordable, and timely agency that can educate, investigate, mediate, and adjudicate claims of discrimination or civil rights violations.”[95] She also said, education is needed, but it is not the total answer. Some kind of enforcement mechanism is required to level the playing field for all people so they can achieve the quality of life that North Dakota has to offer and not be dependent on political whims or on whether there is funding at the State level or the Federal level.[96]

Reverend Lionel Muthiah, chair of the Martin Luther King, Jr. Holiday Commission, speaking on behalf of the need for a human rights committee or commission, said if a commission were in place, it would be reassuring to many people.[97]


[1] 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. 142 (hereafter cited as Transcript 2).

[2] Ibid.

[3] Ibid.

[4] 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. 13 (hereafter cited as Transcript 3).

[5] Ibid., p. 11.

[6] Ibid., p. 12.

[7] Deborah Painte, Transcript 3, vol. 1, p. 30.

[8] Ibid.

[9] Ibid.

[10] Ibid., pp. 30–31.

[11] Ibid., p. 31.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid., pp. 31–32.

[16] Russell D. Mason, Sr., 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, p. 2.

[17] Ibid., pp. 4–5.

[18] Ibid., p. 4.

[19] Ibid., p. 5.

[20] 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, p. 3.

[21] Ibid.

[22] Erich Longie, Transcript 3, vol. 1, pp. 127–28.

[23] Ibid., p. 129.

[24] William Kretschmar, transcript of miniforum conducted by the North Dakota Advisory Committee to the U.S. Commission on Civil Rights in Bismarck, ND, Dec. 3, 1984, p. 115.

[25] Marv Mutzenberger, Transcript 2, p. 118.

[26] Ibid., pp. 118–19. He had also been contacted by the Indian Affairs Commission and David Kipp, president of United Tribes Technical College, both favoring the establishment of a human rights commission.

[27] Ibid., p. 119.

[28] Ibid., pp. 119–20.

[29] Ibid., p. 136.

[30] Cathy Rydell, Transcript 2, p. 124.

[31] Ibid., p. 125.

[32] Ibid., p. 126.

[33] Ibid., pp. 138–39.

[34] Heidi Heitkamp, Transcript 2, p. 281.

[35] Ibid., p. 300.

[36] Ibid.

[37] Ibid., p. 304.

[38] Ibid., pp. 286–87.

[39] Ibid., p. 287.

[40] Craig Hagen, Transcript 2, p. 338.

[41] Ibid.

[42] Ibid.

[43] Ibid., p. 339. Montana’s Human Rights Commission processes employment discrimination complaints, and when necessary, represents the complainant in court.

[44] Richard Gray, Transcript 2, p. 23.

[45] Ibid., pp. 23–24.

[46] Sandi Tabor, Transcript 2, pp. 108–09.

[47] Bruce Furness, Transcript 2, p. 22.

[48] Holly Marion, Transcript 3, vol. 1, p. 55.

[49] Ibid., p. 57.

[50] Ibid., p. 201.

[51] Ibid.

[52] Ibid., pp. 201–02.

[53] Ibid., p. 202.

[54] Francis X. Kartch, Jr., executive director, North Dakota Small Business Survival Committee, letter to John F. Dulles, regional director, Rocky Mountain Regional Office, U.S. Commission on Civil Rights, Denver, CO, Oct. 3, 1997.

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] Elizabeth Sweet, Transcript 2, p. 376.

[59] Eileen Olson, Transcript 2, p. 166.

[60] Keith Elston, Transcript 2, p. 15.

[61] Ibid.

[62] Ibid. Information contained in data submitted at factfinding meeting.

[63] Ibid., pp. 15–16.

[64] Ibid., p. 16. The 12 States are Colorado, Florida, Hawaii, Idaho, Missouri, Montana, New Jersey, New York, North Carolina, Oregon, Utah, and Wyoming.

[65] Ibid., pp. 16–17. The 31 States are Alaska, California, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, New Mexico, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Vermont, Virginia, Washington, West Virginia, and Wisconsin.

[66] Keith Elston, Transcript 2, p. 15.

[67] Ibid., p. 12.

[68] Ibid., pp. 12–13.

[69] Ibid., p. 17.

[70] Ibid., p. 42.

[71] Ibid., pp. 42–43.

[72] Ibid., p. 44.

[73] Ibid., p. 55.

[74] Ibid., p. 56.

[75] Ibid.

[76] Linda Catalano, Transcript 2, p. 76.

[77] Ibid., p. 58.

[78] Ibid.

[79] Ibid.

[80] Dave Boeck, Transcript 2, p. 159.

[81] Ibid., p. 189.

[82] Ibid., pp. 188–89.

[83] Ibid., pp. 192–93.

[84] Myrt Armstrong, Transcript 2, p. 69.

[85] Gerard Friesz, Transcript 2, pp. 81–82.

[86] Ibid., p. 82.

[87] Ibid., pp. 96–97.

[88] Ibid., pp. 97–98.

[89] Ibid., p. 98.

[90] Cheryl Red Eagle, Transcript 2, p. 191. Ms. Red Eagle is now married and continues to write for the Bismarck Tribune as Cheryl Long Feather.

[91] Ora Robinson, Transcript 2, pp. 185–88.

[92] Denny Portra, Transcript 2, p. 355.

[93] Ibid.

[94] Lynn Iverson, Transcript 2, p. 359.

[95] Ibid., p. 363.

[96] Ibid., pp. 363–64.

[97] Lionel Muthiah, Transcript 2, p. 390.