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Law
Indian voters in South Dakota win another case


Citing a "clear" history of discrimination against Native Americans, a federal appeals court on Tuesday ordered the state of South Dakota to redraw the voting districts on two reservations.

In a unanimous decision, the 8th Circuit Court of Appeals said the state diluted the voting rights of members of the Oglala Sioux Tribe and of the Rosebud Sioux Tribe. The state packed reservation residents into one legislative district in violation of the Voting Rights Act, the court concluded.

"The record is clear that South Dakota's history of discrimination against Native- Americans has limited their ability to succeed in the state political process," wrote Judge Gerald W. Heaney for the majority. "The vestiges of this discrimination remain, dampening Native-American interest in South Dakota politics and affecting the ability of Native-Americans to register, to vote, and to participate in the electoral process."

The decision means the state must redraw two legislative districts on the Pine Ridge Reservation and on the Rosebud Sioux Reservation. A third district is also affected due to the changes being made on the reservations, where voters are more likely to elect an Indian candidate.

Under a plan proposed by the Indian plaintiffs, "Native-Americans would comprise over 65 percent of the voting-age population in District 27, and over 74 percent of the voting-age population in District 26A," the court noted. "Furthermore, each proposed district includes Indian-preferred incumbents, which increases the opportunity of Native-American voters to elect their preferred candidates."

The case, Bone Shirt v. South Dakota, is the latest in a string of victories for Indian voters. With the help of the American Civil Liberties Union, tribal members across the state have successfully used the Voting Right Act to make changes at the local and state level.

"This decision will give our Lakota people an opportunity to elect our candidate of choice to the state legislature," said Alfred Bone Shirt, one of the named plaintiffs. "Discrimination against Indians has been part of South Dakota politics for so long that it is only through cases like this that we have been able see any positive change."

Just this past May, the 8th Circuit revived a voting rights lawsuit filed by two Oglala Sioux women. And in July 2005, the court blocked the state from trying to change a voting plan without addressing the rights of Yankton Sioux tribal members.

Other lawsuits have been resolved in favor of Indian voters. But the state has continued to fight tribal members despite being on the losing end in the past few years.

The Bone Shirt case was especially contentious because state officials and state lawmakers sought to delay it by going to the state Supreme Court and by filing appeals. Their tactics delayed resolution for nearly two years -- U.S. District Judge Karen Schreier made the initial ruling in the case back in September 2004.

The stakes in the battle are high. Although Native Americans make up only about 8.4 percent of the state population, they are the majority in several parts of the state and have been able to sway local and statewide elections, particularly close ones.

"This is a victory for all South Dakotans because it reaffirms the importance of fairness at the ballot box, which benefits everyone, Indians and non-Indians alike," said Bryan Sells, an ACLU attorney who was lead counsel on the case.

At issue in the case is Section 5 of the Voting Rights Act, first passed in 1965. South Dakota is one of 16 states that must submit its voting plans to the Department of Justice for approval due to a record of discrimination against Native Americans.

Conservative Republicans nearly derailed reauthorization of the act this year by trying to remove the approval provision. They were defeated in the House and the bill was eventually signed into law by President Bush in July.

Appeals Court Decision:
Bone Shirt v. South Dakota (August 22, 2006)

Voting Rights Legislation:
Voting Rights Reauthorization (H.R.9)

Civil Rights Report:
Voting Rights in South Dakota, 1982-2006 (May 17, 2006)

Relevant Links:
ACLU of the Dakotas - http://www.acludakotas.org