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20-year-old Native American voting rights case hangs over SD lawmakers as they redraw legislative boundaries

In 2001, Alfred Bone Shirt sued when South Dakota discriminatorily lumped Native American voters in then-Shannon and Todd Counties, thereby limiting their influence in Pierre. Federal judges agreed with Bone Shirt, blocking that plan and leaving a legacy lawmakers in 2021 will encounter while redrawing legislative boundaries.

Gavel Court Crime
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PIERRE, S.D. — A nearly 20-year-old federal injunction hangs over the heads of legislators as they approach redrawing legislative boundaries, especially for the nearly 10% of South Dakotans who are Native American.

On Tuesday, June 1, Matt Frame, Legislative Research Council attorney, told a joint committee to remember Bone Shirt v. Hazeltine, a 2002 federal case in which a panel of judges found the state discriminated against Native American voters in South Dakota by not thoroughly involving them in the previous year's redistricting process.

"We might need to establish some additional meetings in order to ensure that we avoid what happened in Bone Shirt v. Hazeltine ," said Frame, referring to a 2001 attempt by South Dakota legislators to group together two Native American-dominated legislative encompassing districts comprising counties in Pine Ridge and Rosebud Indian reservations into a single district that would've diluted Native voters' voice in the South Dakota Senate.

With the U.S. Census Bureau releasing the state's updated population earlier this year — 886,667 residents — and three days of meetings, ranging from Rapid City to Mobridge to Watertown, set to begin in early October, the committee has until December 1 of this year to establish new boundaries for the 70 members of the House of Representatives and 35 senators (though, those numbers aren't set in stone).

But the two-decade-old federal lawsuit, filed by Alfred Bone Shirt and the American Civil Liberties Union, which found South Dakota's Secretary of State failed to submit for clearance by the U.S. Attorney General or the U.S. District Court in Washington, D.C. a 2001 redistricting plan that combined Shannon (now Oglala) and Todd Counties.

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Both counties qualified for minority voter protections under the 1965 Voting Rights Act , due to higher populations of Native American voters and low voter turnout (judged as less than 50% of voting participation from the adult population of the county).

When the counties were grouped together in one senate district, Bone Shirt sued, claiming discrimination — and federal judges Charles Kornman and Karen Shreier agreed by enjoining against the state in 2002. A legal fight ensued, ending in 2005 with the court upholding the two separate senate districts. An appeals court upheld Judge Schreier's ruling in 2008 .

"Suffice to say, what happened was the committee had planned several meetings on Native American reservations, [but] they were not well-publicized and not well-attended," said Frame.

While civil rights protections in the nation's voting laws tends to revolve around questions of race, particularly with historic disenfranchisement of African Americans in the U.S. South, Frame told lawmakers that South Dakota is in a "unique" position due to high Native American population, who is protected under the 1965 law.

At one point on Tuesday, Rep. Liz May , a Kyle Republican, probed the parameters of minority protections by seemingly conflating racial subcategories within the nation's voting rights laws with "economic" minorities, even employment numbers.

"So I'm just curious," asked May, "We know agriculture is the number-one industry. Since they are a minority [in terms of workers], but they are the number one industry, are they considered a minority?"

Frame responded that this isn't typically how the U.S. has understood minority rights within the context of voting rights laws, noting, "generally, most of these court cases refers to a racial or ethnic status versus someone's occupation or economic status as being a minority."

The committee will hold meetings on October 11-13. It's unclear where the locations of the meetings will be held. At a March meeting, Sen. Troy Heinert , a Mission Democrat from the Rosebud Indian Reservation, inquired whether meetings in Mobridge and Watertown — meant to be conducive to tribal populations on Standing Rock and Lake Traverse reservations — would aptly convenience Native voters.

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South Dakota legislative officials say they anticipate receiving more detailed Census data earlier than anticipated — now in mid-August — from the U.S. Census Bureau, following a lawsuit filed by Ohio .

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