From the Sioux Fall Argus Leader (via How Appealing):
Judge Tony Portra of Aberdeen is one-eighth Turtle Mountain Chippewa.
There is no official data on the race or ethnicity of the 38 circuit judges in South Dakota, or the five members of the state’s Supreme Court, but it appears Portra is the only one with a minority background.
In a state where more than 8 percent of the citizens and 25 percent of the male prison population are Native American, many are watching as Gov. Mike Rounds prepares to appoint a new justice to the Supreme Court.
Advocates for building the ranks of minority judges in South Dakota say Rounds should use his judicial appointments to increase diversity among the Supreme Court and the circuit judges, who preside over the serious criminal cases. Three years ago, the Equal Justice Commission created by the state Supreme Court, told the governor that doing so would fight the perception of bias in the system among minorities.
But to date, anecdotal evidence suggests the governor has not heeded that recommendation. Nor does he plan to make that a priority with his judicial selections, he said.
“I think … it is an acknowledgement of what is pretty decent, common-sense advice,” Rounds said of the commission recommendation. “But I choose the person who I think would be the best judge, not the person who will get me an accolade for having done something different or unique.”
At least one enrolled member of a tribe, Huron lawyer Ron Volesky, applied for the justice position. Among letters of support he received was one from Chief Leonard Crow Dog of the Rosebud Reservation, who urged Rounds to act on the Equal Justice Commission’s recommendation and select Volesky.
Crow Dog said he received a letter back from the governor saying Volesky’s name had not been forwarded by the Judicial Qualifications Commission, which is required by law to vet potential judicial candidates, and “therefore I cannot appoint him.”
“I am disappointed,” Crow Dog said. “He seems to be ignoring the commission’s recommendations.”
Chief Justice David Gilbertson created the 11-member Equal Justice Commission in 2004. He knew from the start that despite large numbers of Native American children and adults constantly feeding into the justice system, the few studies that had been done revealed no inherent discrimination in areas such as sentencing.
Still, to people such as commission co-chairman John Konenkamp, himself a Supreme Court justice, there had to be a better way to respond to the overrepresentation of Native Americans in the system when they account for only 8 percent of the state’s population.
“The only thing the studies have said loud and clear is, ‘there’s a disproportionate number of native people in the penitentiary,’ ” Konenkamp said. “They are not able to ascribe racism as the reason for it. But that doesn’t answer the question then of ‘why?’ Our hope as a commission then was to somehow see those numbers decrease.”
Gains are small, come slowly
The commission, almost half of which consisted of Native Americans, held hearings and interviews at 15 sites, including eight reservations, and three penitentiaries. In the end, it made 50 recommendations – everything from pushing cultural training for judges and other court personnel to increasing the number of Native American employees at all levels of the judicial system.
Among its successes that Gilbertson, Konenkamp and others cite:
While that is notable among those in the legal profession, it probably does not mean much to native people participating in the justice system, said Jeff Larson, a public defender in Sioux Falls and a commission member.
“If you ask the general reservation inhabitant in Pine Ridge or Rosebud if there are Native American questions on the bar exam, they’ll say, ‘Who cares?’ ” Larson said. “The important thing is, perception is reality. To the extent that perceptions haven’t changed, we have more work to do.”
In South Dakota, no Supreme Court justices are Native Americans, and only one of the circuit judges has a native background. Portra wasn’t appointed by the governor; he ran for and won the position in an election.
As for the more than 500 people employed by the state’s Unified Judicial System – clerks, probation officers, court reporters and others – reporting one’s ethnicity is voluntary, “so we cannot tell you how many may be minorities,” said Pat Duggan, UJS administrator.
Observers suggest the numbers would be small. To those few people with native blood who are in or have worked in the judicial system, that continues to be a concern.
Portra said few defendants standing before him know he is part Chippewa. To the extent that he treats everyone equally, that’s probably good, he said. But a judiciary that more closely mirrors the population it serves would be good, too, he said.
“People want a president who looks like them. They want Congress to represent the nation at large, too,” he said. “I don’t see why you wouldn’t want the judiciary to be the same. I don’t think the public wants a judiciary to be all white, or all black, or all Native American. But they want it to mirror them. It certainly would help the perception of fairness here in South Dakota.”
Disparity on parole board
As the lone Native American on the state Board of Pardons and Paroles, Debra Flute of Sisseton is convinced she earned that role because, in Rounds’ words, “I was the best person available,” she said.
But three openings were just filled on that nine-member board, none of whom were Native Americans. That disappointed Flute, who works as house counsel for the Sisseton Wahpeton Sioux Tribe.
“They talk about the parole board being a community-based board, and how it’s important to have equal representation on the board,” she said. “So I’m disappointed that they had … openings on the board and another native person was not appointed.”
Dick Kirkie of the Crow Creek Reservation understands that frustration. He worked for 121/4 years as a counselor at the state penitentiary in Sioux Falls until he left in 1993. His goal was to be South Dakota’s first Native American associate warden. But after being passed over numerous times for promotions to counseling supervisor, “I saw the writing on the wall,” Kirkie said.
“That’s the way these people are in South Dakota,” he said. “They agree with you and say ‘yeah, yeah, yeah, we’ll try to do something.’ But little changes.”
Equal Justice Commission members would disagree, and point to a list of its accomplishments on the state’s Unified Judicial System Web site. But they also acknowledge a slowness of change, such as the implementation of a recommendation asking lawyers, court personnel and other judges to evaluate judges’ tolerance for racial diversity. That’s finally happening this year.
“Things are changing,” Justice Konenkamp said, “just not as fast as I would like.”
Potential candidates scarce
One of the biggest arguments against having selected more Native American judges or justices is what many see as a lack of potential candidates. While the State Bar Association doesn’t ask its members for their ethnicity, the numbers probably aren’t very high. Since 1993, only 26 graduates from the USD School of Law listed themselves as Native Americans, said Associate Dean Tom Sorensen, and it’s difficult to say how many of them remain in the state.
While the law school aggressively recruits potential Native American students, it is a challenge, said Barry Vickrey, dean of the law school.
“It’s a struggle here, a struggle nationally any given year,” Vickrey said. “There’s maybe 500 or 600 American Indians who take the admission test for law school in the entire nation.”
The Equal Justice Commission recommended asking Rounds’ office to work with the State Bar Association and the Judicial Qualifications Commission to find ways to develop qualified ethnic candidates.
Tom Barnett, head of the bar association, said “there is a discussion going on for identifying the appropriate plan or avenue to achieve that goal.”
But Rapid City lawyer Chris Palmer, chairman of the Judicial Qualifications Commission, said his board can’t be an affirmative action group and maintain its objectivity in vetting and forwarding potential candidates to the governor if it’s out recruiting minority candidates.
Larson, the Sioux Falls public defender, understands what Palmer is saying, but adds: “We recognized when we made recommendations that some of them would be uncomfortable and different from the way we do things. That’s the only way you can effectuate change.”
Certainly, the pool of Native Americans who could be a judge or justice is small, said Pommersheim, the USD law professor. But it is growing, he said. And if Rounds or any future governor doesn’t appoint Native Americans as judge, “then I think that record speaks for itself, because they would not have the option to say there aren’t any qualified persons for those slots.”
Flute said she would aspire to be a judge. And Volesky – who received his undergraduate degree from Harvard University – has applied twice to be a judge, and again to be a justice.
Though he said he isn’t campaigning for the job, Volesky said “absolutely” he would welcome the opportunity.
“I think it would be a real positive development in our state’s history,” he said. “If we could get one or two Native Americans appointed to the judiciary, it would be a landmark development for racial relations in the state of South Dakota.”
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