PIERRE, S.D. -- There is no dispute that American Indians are
over-represented in South Dakota's prisons and courts, and that the
perception of unequal justice against minorities is real.
A commission formed two years ago by the South Dakota Supreme Court to
investigate equal justice issues released its final report with
recommendations for the state's judiciary, law enforcement and other
agencies to follow. Most importantly, since it was the Supreme Court's
commission, the state's judicial system may be under a greater obligation
to follow those guidelines.
Testimony from individuals who perceived unfair treatment of American
Indians and other minorities made up the bulk of the report. Importantly,
the commission concluded that this strong perception becomes reality for
"Perceptions we heard from many minority people have an undeniable basis in
reality," the report stated.
Minority individuals have long held that they are charged with crimes where
non-minorities are not, and that as minority people, they are treated
unfairly in the system. Many court personnel claimed in testimony before
the commission that minorities are fairly treated. Extensive testimony
included in the report showed that minorities strongly disagree with their
Some perceptions cannot be proven by data, as the state collects very
little data, a fact the report clearly pointed out. The report recommended
that data be collected to document the racial makeup of everyone stopped by
law enforcement officers and the reasons why they were stopped.
In years past, bills addressing this issue have come before the state
Legislature. Those bills were either altered to minimize the issue or
killed in committee. This year, a bill was introduced would have directed
the Department of Corrections to maintain racial and ethnic data.
Currently, the DOC breaks down race and ethnicity into only three
categories: African-American, Caucasian and American Indian. Hispanics and
other ethnic groups are lumped into Caucasian.
The bill, introduced by Rep. Thomas Van Norman, senior attorney for the
Cheyenne River Sioux Tribe, was defeated in committee. DOC's Laurie Feiler
stated that the department's Web site included the data, and would soon
break down the racial makeup further. Van Norman wanted more assurances
with a statute that would mandate such an effort, not make promises.
"Further research is required to fully understand the impact of minority
status at each step in the criminal justice process, including arrest,
charging, bail, appointment of counsel, plea negotiation, and sentencing,"
the report stated.
The commission recognized the fact that the state, although low in numbers
of non-American Indian minority groups, is becoming more diversified in its
census makeup. The courts, the report noted, are the most visible societal
example of racial and ethnic fairness, "or lack thereof, in the state."
"An impartial system of justice should be as diverse as the people it
serves," the report stated.
To that extent, the report was clear: Minorities are underrepresented among
employees at every level of the judicial system and within the DOC --
including lawyers, law enforcement officers, social service workers, mental
health workers and others.
The report also pointed out that many attorneys in the state lack
cross-cultural training and are perceived by minorities as being ignorant
of most cultures, and recommended that a question about Indian law be
placed on the state bar exam and that some cultural competency training be
included for those within the judicial system.
Attorneys, especially in rural areas, provide inadequate legal service to
minority clients, the report stated.
The report recommended that a minimum of two to three credit hours in
American Indian culture and history be taught in the state colleges and
universities as a requirement toward graduation.
The report found that juries in the state, whether grand or petit, rarely
reflect the makeup of the community with a lack of minority participants.
Some cultural beliefs do not allow a person to serve, the report noted.
In the American Indian community, "family" is defined differently than in
the non-Indian, or white, community. For example, when a potential juror is
asked if a defendant or plaintiff is a relative, most likely the answer
would be yes -- even though that person may be a very distant relative,
several times removed, by non-Indian definition. The person is then excused
from the jury panel.
The report also stated that American Indians perceive that they are stopped
more frequently while driving than any other group, that they are more
frequently charged with criminal activity and are more often coerced or
encouraged to plea-bargain, even when innocent.
"Without thorough understanding and appreciation of cultural differences
and how those differences shape encounters with the judicial system, there
will continue to be mistrust and negative perceptions among the minority
people our judicial system serves," the report said.