Despair and Discrimination in Indian Country:
ACLU Fact Sheet on South Dakota

Population

Native Americans, the state's largest minority group, make up 8.3 percent of South Dakota's population.

The tribes in South Dakota are all part of the Great Sioux Nation, which is comprised of the Dakota, Lakota and Nakota language groups. According to 2000 Census figures, South Dakota's nine reservations are breeding grounds of despair, with little hope for its residents to overcome barriers to empowerment.

Data released from the 2000 Census shows that five of the top ten counties in the U.S. with the highest poverty rates are located in South Dakota. Two of these counties -- Shannon and Todd - rank third and fifth respectively and both are covered by Section 5 of the Voting Rights Act.

Section 5 requires certain "covered" states, i.e., those which used discriminatory tests for voting and had low levels of voter participation, to get federal approval, or preclearance, of their new voting laws or practices before they can be implemented. Section 5 was designed to prohibit states from replacing their discriminatory tests for voting with other equally discriminatory voting practices.

Voting Rights

The sweeping lawsuit the ACLU filed on August 5, 2002 is the most recent - and largest ever - challenge to South Dakota's election laws. Filed on behalf of four Lakota voters, the lawsuit charges that since amendments to Section 5 became effective in 1975, South Dakota has failed to seek or obtain approval of more than 600 statutes and regulations that affect voting and elections in Todd and Shannon counties-including virtually every election law and regulation currently on the books. While most of the laws are unobjectionable, the ACLU has identified at least 12 that appear to be discriminatory in nature. The lawsuit seeks a court order prohibiting the state from implementing any of the statutes unless and until the state has complied with Section 5.

State officials have openly flouted the Section 5 requirements for Native Americans. In 1977, the Attorney General of South Dakota, William Janklow, issued a formal opinion to the South Dakota Secretary of State acknowledging that the Voting Rights Act required preclearance of all state statutes enacted after November 1, 1972, yet advising the Secretary not to comply with the law. Janklow is now the term-limited governor of the state and candidate for the U.S. House of Representatives in the 2002 elections.

Native Americans represent 6.62 percent of the voting-age population of the state.

The Voting Rights Act of 1965 has historically been viewed as the legal vehicle by which African Americans in the South increased their representation by overhauling discriminatory election systems. In recent years, however the law has been used increasingly to address discrimination against Native Americans.

In 1975, the Voting Rights Act was amended to specifically protect the voting rights of Native Americans and other language minorities by requiring states to obtain federal approval before implementing any changes in election laws. Section 5 covers nine states in their entirety and parts of seven others, including South Dakota's Todd and Shannon counties, where federal officials have documented a history of discrimination within the electoral system.

The courts have interpreted Section 5 broadly to cover practices that alter the election laws of a covered jurisdiction in even a minor way. Covered changes have run the gamut from redistricting plans, to annexations, to setting the date for a special election, to moving a polling place.

Congress placed the initial burden of "voluntary" compliance with the statute on the covered jurisdictions, but it also authorized the Attorney General and private citizens to bring suit in local federal court to block the use of unprecleared voting practices. It also made it a crime to fail to comply with the statute punishable by a fine of up to $5,000, or five years in prison, or both.

The ACLU's Voting Rights Project has brought a number of voting rights lawsuits on behalf of Native Americans in an attempt to end discrimination and improve the chances of districts to elect Native American candidates.

Earlier this year, four Native Americans from South Dakota successfully challenged the state legislature's 2001 legislative redistricting plan in Bone Shirt et al. v. Hazeltine et al. The district court found that the redistricting plan violated Section 5 because it was not precleared by federal officials before being implemented. A separate claim of minority voter dilution and the unlawful "packing" of Native American voters into a single district is still being considered by the court.

Poverty and Hopelessness

In Shannon and Todd counties, the number of Native Americans living below the poverty line is almost triple that of the rest of the state.

In Todd County, where Native Americans comprise 85.6 percent of the population, the number of persons living below the poverty line is 46.1 percent, compared to 14 percent for the rest of the state. In Shannon County, where Native Americans make up 94.2 percent of the population, the number of persons living below the poverty line is 42.9 percent.

According to a July 13, 2001 article in the Sioux Falls, South Dakota, Argus Leader, "economic conditions and geographic isolation have prevented Indians from participating in the political process." The article goes on to quote a state legislator whose district includes a large section of Indian country: "Poverty is a major issue, the lack of resources to travel...we know people have the right to vote. The issue were facing is, is there equal access to polling places?...The answer is no."

According to the same Argus Leader article, historically, voter turnout on South Dakota Indian reservations has been low. In the 2000 general election for example, turnout in Shannon County was 38 percent--the lowest in the state. Statewide, the average turnout was 68 percent and in Minnehaha County the number topped 72 percent.

In 2000, the South Dakota Advisory Committee to the U.S. Commission on Civil Rights issued a report to the Commission's members, Native Americans in South Dakota: An Erosion of Confidence in the Justice System. http://www.usccr.gov/pubs/sdsac/main.htm. Although the report directly addressed issues affecting the administration of justice and Native Americans in South Dakota, the Advisory Committee also found that much of Indian Country had lost confidence in the country's democratic institutions- including the electoral process.

Discrimination

In June 2002, lawyers from the Special Litigation section of the Justice Department's Civil Rights Division toured the state making stops in Sioux Falls, Rapid City, Pierre, Martin, Pickston and Sisseton. The DOJ delegation was in the state investigating conditions at the Custer Youth Corrections Center. The ACLU and the La Creek District Civil Rights Committee coordinated efforts to gather testimony for the DOJ delegation about racial profiling from Native Americans.

The DOJ visit was organized by the Parents Who Care Coalition, a South Dakota support group for families of juveniles placed into Department of Corrections custody.

There is evidence that Indian youth are disproportionately represented in the state's juvenile justice system According to the policy group Building Blocks for Youth, South Dakota has an estimated minority youth population of 17 percent. Despite this low number, from July 1993 to June 1994 minorities represented 31 percent of youth admitted to juvenile correction centers; 44 percent of the youth were confined in adult jails. In 1997, minority youth accounted for 43 percent of commitments to public facilities and 46 percent of secure correctional facility placements.

School System

Another recent ACLU lawsuit brought on behalf of Native Americans in South Dakota seeks to end the use of drug-sniffing dogs in classrooms with children from kindergarten age to the 12th grade.

None of the individual children involved—some of whom were as young as five or six years of age--were suspected of being in possession of illegal substances.

While school officials nationwide have sometimes permitted or invited private contractors to bring specially-trained drug-sniffing dogs into schools to detect illegal substances, the attention of those dogs has traditionally been directed exclusively towards school-owned property such as student lockers.

The ACLU's lawsuit, filed on July 18, 2002, names police officials as well as the school board, whose members are all white. Although Indians make up more than 40 percent of the school district's population, none serve on the board. Parents of the students named in the class action lawsuit have said they feel that there is an unofficial policy of intimidation directed largely at the younger Native American students. There are fewer Native American students in the higher grades because of soaring drop-out rates among Native American youth.

According to a December 16, 2001 article in the South Dakota newspaper, Argus Leader, the dropout rates among the Bureau of Indian Affairs schools are high. Randy Plume, education director for the Oglala Sioux Tribe, says 60-65 percent of students do not finish high school. In other words, for every 400 children who start kindergarten, maybe 150 will graduate as seniors.

The ACLU recently filed a lawsuit against the same school board for utilizing a school board election system that discriminates against Native Americans. A decision in that case is pending.

November Elections

South Dakota voters are poised to play a decisive national role this fall by either reelecting incumbent Democrat Tim Johnson or his insurgent Republican rival, John Thune. Whoever holds this seat could tip the balance of the Senate majority. At such a crucial time in history, it is imperative that the election processes remain free and fair for all eligible voters.

Native American voting rights in South Dakota and the other Plains States have been anything but secure. The right to exercise their franchise is one of the main issues Indian voters hope these Senate hopefuls will address during their campaigning.

GLOSSARY OF VOTING RIGHTS TERMINOLOGY

Minimum-vote Requirement: A minimum-vote requirement creates a two-stage election procedure whose second stage comes into effect only if no candidate wins the prescribed minimum percentage (usually 40 percent-50 percent) of the overall vote needed to win the election. In the first election, white voters may split their vote among several candidates while the candidate favored by minority voters wins a plurality of the vote. Under most election systems, the minority-preferred candidate would be declared the winner. With a minimum-vote requirement, however, a runoff election would be required if the minority-preferred candidate did not receive the minimum percentage of the vote. This allows white voters to coalesce behind the runner-up in the first stage in order to defeat the minority-preferred candidate in the runoff.

Numbered-post Elections: In numbered-post elections, candidates are required to declare for a numbered seat, or "post," on the ballot when there are multiple seats available. Rather than run against all other candidates in a single contest, candidates in a numbered-post election only run against candidates who have declared for the same post. This makes it less likely that white voters will split their votes and prevents minority voters from withholding their votes from their preferred candidates' competitors.

JUDICIAL DECISIONS AFFECTING NATIVE AMERICANS IN SOUTH DAKOTA

• Little Thunder v. South Dakota, 518 F.2d 1253, (8th Cir. 1975) (striking down state laws that prohibited Indians from voting in certain county elections)
• United States v. South Dakota, 636 F.2d 241, (8th Cir. 1980) (holding that a state law preventing Indians from holding office in certain counties is unconstitutional)
• A merican Horse v. Kundert, Civ. No. 84-5159 (D.S.D. Nov. 5, 1984) (ordering that certain Indians who were unlawfully denied voter registration be added to the voter lists)
• Black Bull v. Dupree School District, Civ. No. 86-3012 (D.S.D. May 14, 1986) (finding a violation of Section 2 of the Voting Rights Act for failure to provide polling places accessible to Indian voters in a school board election)
• Fiddler v. Sieker, Civ. No. 85-3050 (D.S.D. Oct. 24, 1986) (ordering the auditor of Dewey County to provide the Indian plaintiffs with additional voter registration cards and to extend the deadline for voter registration)
• In Re Certification of a Question of Law, 615 N.W.2d 590 (S.D. 2000)
• Bone Shirt v. Hazeltine, 200 F. Supp. 2d 1150 (D.S.D. 2002)

CASES FILED BY ACLU VOTING RIGHTS PROJECT IN SOUTH DAKOTA

Emery v. Hunt: The plaintiffs successfully challenge the State Legislature's 1996 decision to abolish a majority-Indian single-member house district created in 1991 in order to protect minority voting rights on the Standing Rock and Cheyenne River Sioux Reservations.

Bone Shirt v. Hazeltine: Court has ruled on one claim that 2001 legislative redistricting plan violates Section 5 of the Voting Rights Act. The court has not yet ruled on a second claim of unlawful "packing" of Native Americans in a single district.

Weddell v. Wagner Community School District: Lawsuit alleges that the school district's practice of electing board members at large rather than from fixed geographic districts and the use of only one polling place in Wagner-12 miles from the reservation of the Yankton Sioux Tribe—dilutes their voting strength.

Wilcox v. City of Martin: Plaintiffs are challenging the city council's new redistricting plan on the ground that it discriminates against Indian voters.