'We're at court's mercy'

By TERRY WOSTER
Argus Leader
published: 6/21/01

RAPID CITY -- American Indians in South Dakota are at the mercy of courts because they have little money for lawyers and often little understanding of the system, the state's tribal government relations commissioner said Wednesday.

Webster Two Hawk, a former chairman of the Rosebud Sioux Tribe, told University of South Dakota researchers who are assessing racial fairness from arrest to sentencing, that a system of justice based on punishment is foreign to Indian people.

"We are hellbent on punishing people,'' Two Hawk said during a public forum in Rapid City. "We are not interested in rehabilitation in society. Our Indian culture at one time was more aimed at bringing people together.''

Two Hawk said many Indian people don't understand the concept of plea agreements, don't understand the adversarial system and can't hire top defense lawyers.

"We as Lakota people are at the mercy of the court because we don't have the money to defend ourselves,'' he said.

Steve Feimer and Richard Braunstein of USD's Government Research Bureau are doing the study for Gov. Bill Janklow. The study is to decide whether race is a significant factor in decisions about which people are charged, prosecuted and sentenced after being arrested. A U.S. Civil Rights Commission report last March concluded that many American Indians think they aren't treated fairly in the court system.

The current study will focus only on the state system, although some who testified at the forum said attention also should be paid to tribal and federal courts.

Feimer said as many as 70,000 cases between 1994 and 1999 are being reviewed.

"In the end, we hope to find out whether, for virtually the same crime and the same circumstances, is there any difference in sentences received and is race a factor,'' he said.

Braunstein said the study will look at regional differences in outcomes, county budgets for the criminal justice system and other factors that might affect decisions on carrying a case through from arrest to sentence. It will examine why some cases are prosecuted while similar cases are dropped, whether Indians are involved in plea bargains more or less often than non-Indians and what kinds of punishments ultimately result in each case.

"We'll let the data, not us, tell the story,'' he said. "We hope, as you do, that where we find problems, we can address them.''

About 25 people attended parts of the forum. Many think the study will identify racial disparity in sentencing and all other aspects of the criminal justice system.

'Money talks'

Indian men and women understand they are at a disadvantage because they have little money and must rely on public defenders or court-appointed lawyers, said Zelda Gallegos of Rapid City.

"If you have money, money talks. A good lawyer will cost good money,'' she said. "When the money starts to run out, they (Indian defendants) say, 'OK, plea bargain.' ''

She recommended more involvement by the Indian community in the court system, "not favoring any one race but looking at what's happening.''

Braunstein said he hopes the study will lead to a comparison of what's happening in the state court system and the federal court system.

'Indian from television'

Marie Lange of Rapid City said Indian lawyers are needed to represent Indian defendants. Such people might not even need to be licensed by the state, if they understood the system and could be advocates for Indian clients. And stereotypes need to be smashed to give American Indians a fair hearing in the system, she said.

"When you go in front of a white jury, they see that Indian from television,'' Lange said.

Lange agreed with Two Hawk that the state court system lacks an understanding of the American Indian concept of restorative justice, which means the offender is treated within the community, not locked away.

"The state court only deals with the law, not a culture or a way of life,'' she said. "We've never believed in incarceration.''

Lange also said that a system based on restitution and rehabilitation, rather than punishment, would bring more evenhanded treatment for Indian people. Up to 90 percent of the crimes by Indian people are alcohol-related, she said. The offenders need treatment and counseling, but they get prison time.

"They end up in prison being treated for the symptom, not the cause,'' she said.

Two Hawk said racial profiling, the practice of law officers stopping a disproportionate number of people from minority groups, should be studied for a broader answer to court problems for Indian people.

"Maybe we need to be looking at it someplace, so we can stop this before it gets to court,'' he said.

The current study doesn't include profiling, Feimer said. There isn't a store of information on that topic for the researchers to use. Proposals to create a profiling study were killed in the last session of the state Legislature.

More serious charges

Janet Thompson, a Rosebud Sioux Tribe member and former law officer and criminal investigator, said Indians sometimes are charged with felonies that would be misdemeanors for non-Indians. She also said few Indian people are judged by a jury of peers because few juries include Indian members. She suggested that courts be allowed to draw Indian jurors from across the state, rather than only from the county or court circuit.

"If you have a Todd County case, people are all related, so that eliminates them,'' Thompson said.

One of the complaints the U.S. Civil Rights Commission heard several times during hearings in Rapid City late in 1999 was about the inadequacy of defense lawyers for Indian people, said John Dulles, regional director for the federal commission.

"Is there any hard data to help us understand how important a factor that is?'' he asked.

Feimer said the study will look at the outcomes when defendants have their own lawyer, a court-appointed lawyer or public defender, and no lawyer.

Braunstein said it would be difficult to gauge the effectiveness of the lawyer. The years of experience could be noted, but that wouldn't necessarily show the effectiveness of the lawyer.

Few studies have focused directly on American Indians and sentencing disparities, Braunstein said. The current one should be considered the first of a series that looks at the South Dakota experience on a yearly basis, he said.

"There's so much that needs to be studied,'' he said. "I just don't think we're going to get as far as you want us to go.''

Gloria Tyon-Kozak of Rapid City, who helped organize the forum, said most people understand that the process will be long.

"I know we can't resolve this problem in our generation,'' she said. "But this is a start.''
Reach Terry Woster at 605-224-2760 or twoster@midco.net