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Racism: South Dakota style

PIERRE, S.D. - South Dakota has taken on the image of the Mississippi of the North, a racist title for an allegedly racist state.

Mississippi made changes in its image, if not its character. But as South Dakota tries, it continues to prevent change that could bring the state into a cultural and economic boom.

The most recent publicly-exposed debacle is the judicial system as it relates to the American Indian population. The U.S. Commission on Civil Rights issued a scathing report against the state only to have then-Governor Bill Janklow reject it vehemently. He ordered a new study from the University of South Dakota.

The new study showed the same results as that of the Commission.

Janklow referred to the Commission report as "garbage" because it was based on anecdotal evidence obtained at a hearing in Rapid City in 1999 and through other means. He said he wanted facts and the report showed him no facts. He said it was all based on perception.

Professor Richard Braunstein of the University of South Dakota conducted the research for the state's report. Even though the state's report corroborates what anecdotal information suggested, criticism of the Braunstein report is that he did not spend any time meeting with groups of people on reservations and didn't really address racial profiling. Analysis was completed based on data from various sources. The two reports agreed - the disparity between the non-Indian and American Indians in the state's judicial system is large.

"This independent study affirms what we have said. We must move ahead and act to assure equality for all South Dakotans, that's how I feel now," said Mary Ann Bear Heels McCowan, a Lakota rights advocate for First Voices in South Dakota.

She recalled a comment from a book - a comment that American Indians were invisible. She added that "we are not invisible now. Now we are vocal, we are seeing results, not rapid, but in education and other areas some good things happen."

In Pierre, S.D. the police department made a requirement of all traffic tickets to document why people were stopped. In the past, the reason why people were stopped was not indicated on tickets. Now a Pierre police officer has to mark on the ticket why the stop was made. A step forward, Pierre American Indian leaders claim.

A simple thing such as a dangling object in a vehicle's front window can precipitate a stop. Then other people in the vehicle, that happen to be American Indian, have to undergo an outstanding warrant check. It doesn't happen in the non-Indian community that way, advocates say.

Authorities in the state have downplayed the role that racial profiling plays in traffic stops. There are counties and cities like Pierre, where more attention is being paid to careful traffic stops. But American Indian advocates assert that it is still a practice.

"This is a valuable scientific report sponsored by the opposition proving people were right all along," said Jennifer Ring of the American Civil Liberties Union of the Dakotas.

Ring was critical of the report which did not look at the conduct of police officers. Another problem with the Braunstein Report she mentioned was the fact that actual traffic tickets were not reviewed. She claims that American Indians are stopped for speeding for between one and five miles over the speed limit, while non-Indians get by driving five to 10 miles over the limit.

"There is a desire in the state to ignore what is apparent to every Native American. You don't have to be an activist to know this," Ring said.

Racial profiling is not the only criticism placed on the state judicial system. Incarceration, judicial action, plea bargains instead of trials, fewer bond releases and longer sentences are the majority of issues where disparity is found.

"American Indians were over represented in the South Dakota criminal justice data set and whites were underrepresented. American Indians make up 8.3 percent of the state's population and 16.7 percent of the criminal justice data set," the Braunstein Report stated.

Braunstein said that it was problematic to compare the public-at-large and the American Indian representation in that group because of socio-economic and jurisdictional realities.

Another problem with the Braunstein report, critics argue, was that it could not determine bias or any other behavior on the part of the authorities or defendants based on the database used.

The State-Tribal Relations committee of the South Dakota Legislature has taken up the issue of sentencing guidelines and racial profiling. It has been a daunting task, however, to get an anti-racial profiling bill introduced in the legislature.

Sentencing is a crucial element of judicial disparity in the state. The Braunstein Report stated that American Indians served more of their sentences than did non-Indians. In fact it was expected that American Indians would serve some 74 percent of their sentence, compared to 70 percent for the non-Indians.

And a fact known to most people in the judicial system is that American Indians face a trial less often than non-Indians. That, according to tribal advocates and leaders is due to the fact that American Indians have less money to hire an attorney, do not see their peers in jury boxes and are more inclined to plea bargain. Some say that it is because of intimidation or having inadequate counsel. Those accusations cannot be proven by data from courts or law enforcement records.

"I am interested in the judicial breakdown by district and judge. We'll find some good and bad judges and some good and bad prosecutors," Ring said.

In order for juries to be populated by American Indians there is a need for voter registration. Ring said it was the most important thing, not just for voting, but to get more American Indians into the jury pools.

"I hope they will see the need to do something. There are many good white people there," Ring said.

The data collection is not complete. There will be more research and another report from Braunstein and the University. What critics recommend is to form focus groups of American Indians and non-Indians and put their ideas into a report and confirm more anecdotal information.

The State-Tribal Relations committee will meet at the end of September to address the issue of racial profiling and sentencing guidelines. There are three American Indian legislators on the committee. Even though the committee has taken up the issues before it cannot hold hearings and introduce legislation, it is an interim committee.