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American Indians and justice studied

LOWER BRULE, S.D. - The state of South Dakota will look more closely at what happens to cases of American Indians in the state's judicial system.

Steve Feimer, a researcher at the University of South Dakota in Vermillion, has visited with tribal members across the state in a series of meetings gathering comments about what a study should include in looking at the disposition of cases involving American Indians.

Feimer, who met with tribal members at Lower Brule during a Sentencing Disparity Forum July 20, said the university's Government Research Bureau, has a state contract to study cases between 1994 and 2000. Researchers will look at between 50,000 to 70,000 cases to determine if those of American Indians are treated differently than white offenders.

While the study may serve as an indicator of racial profiling for future studies, it isn't a racial profiling study, Feimer noted.

It will focus on adult criminals, those charged with felonies that fall under jurisdiction of South Dakota courts.

While other studies have looked at the justice system across the nation, few looked specifically at what is happening with American Indians. The study will be the first in the state, he said.

"The focus has been traditionally on blacks with a few of them on Hispanics. Very few of them on Native Americans."

Feimer said a team of six researchers will look at regional differences in the state to see if American Indians are treated differently than other populations in bordertown areas.

Even regional differences between the eastern and western parts of the state will be studied to determine if American Indians face tougher circumstances East River or West River, he said.

Defining American Indians will be another task researchers will have to consider since racial issues stretch far beyond the bounds of tribal enrollment. They will have to determine if they will look at cases involving non-enrolled tribal members who might also be treated differently in the South Dakota justice system because of their appearance.

Further complicating the matter in defining who is an American Indian by South Dakota's standards, is the differences in how each tribe views who is a tribal member.

Feimer said the study will look at a broader definition since appearance and cultural differences may play a role in how cases are disposed of in the state's courts.

"We're going to look at it, at whether you are perceived as Native American," he said.

A small group of tribal members, including academics, civil rights and treaty rights defenders, suggested the study may need a broader scope to help the state's population deal with racial issues.

Feimer said it will assist in helping to tackle at least some of the problems tribal leaders have said exist.

"Once we know what's out there, we will be in the position to make some recommendations so we can solve all these problems. In a way, what we are all here for is to try to understand things to the point to where we can solve all these problems and not have them continue year after year."

Feimer said there have been similar meetings in more populated centers in the state including Rapid City and Sioux Falls where more people attended and were willing to make comments about how the state should approach the study. "We've gotten tremendous help in working on this study. There are only a handful of research pieces like this.

"What we are going to be doing is a comparison between Indians and whites going through the state justice system."

Compiling the information will be a daunting task and has already required programmers to design a computer program to decipher information from three separate record keeping areas all listing the data differently, he said.

Some issues to be studied are age of arrest, race, gender, type of criminal charge at the time of the arrest, whether bond was granted, pre-trial documentation, if the offender was a state resident, charges at arraignment, date of appearance which will be used to calculate the length of time from arrest to the individual's first court appearance, geographic variables, prior arrest records, race of the victim, educational levels, length of sentences imposed and marital status.

Variables, including dates of admission to prison and crime sentence descriptions, will be examined to detect any historical differences in sentence length between whites and American Indians.

The disposition of cases and how what pleas were entered instead of individuals facing the original charges will be carefully looked at, he said.

In some cases, the researchers may find individuals accepted lesser charges in a plea bargain rather than face a conviction on a more serious charge. The researchers will also look at how individuals were represented by legal counsel.

"Once this study is finished there is an interest in doing a study on federal jurisdiction and are American Indians sentenced more severely for federal crimes."

The state study will be used for data to look at a broader picture of how American Indians fare in the state and federal systems. It will serve as a comparative database against similar statistics in the federal system, he said.

Victor Douville, a professor at Sinte Gleska University, asked about including the composition of juries as a part of the study. Douville indicated many tribal members facing charges in state courts stand trial by white juries.

Feimer said records concerning racial distribution of juries isn't available and in many cases jury lists are not included in court records.

"I think we could look at the composition of jury. I think that is important," Douville said.

He also suggested that another factor that should be considered was how judges respond to individuals before the bench. Because of cultural differences, a judge might take a defendant's failure to look directly at him as a lack of respect during a hearing when it is really a show of respect because the tribal members are taught to avoid direct eye contact.

Douville suggested judges might benefit from cultural training to understand how the cultural differences play a role.

Fremont Fallis said many, many Native Americans lack financial backing to hire a good attorney to represent them. Offenders have four or five charges and when they appear in court, they are forced into plea bargains.

Fallis, a former police officer, said he witnessed cases where the ability to hire an attorney instead of accepting a court-appointed attorney made a difference in the outcome of the cases.

Feimer said he hit the road seeking comments on what should be included in the study because he wants to make sure tribal people play a role in the design of the study.

"We don't want at the end for people to come up and say there is something wrong with the research or there is a gaping hole.

"We hope to establish a protocol on an annual or semi-annual basis to check to see how the criminal justice system is doing," he said.

Tribal members at the forum suggested the study should look closely at the severity of sentences and which judges might have delivered more severe sentences to tribal members.