The fourth and final meeting of the interim State-Tribal Relations Committee was called to order by Senator J.E. "Jim" Putnam, Chair, at 9:03 a.m., October 17, 2001, in Room 412 of the State Capitol, Pierre, South Dakota.

The following members were present: Senators Patricia de Hueck, Richard Hagen, J.E. "Jim" Putnam, and Ron Volesky; and Representatives Barry Jensen and Thomas Van Norman. Senator Arnold Brown and Representative Jean Hunhoff were excused. Representatives Stan Adelstein and Paul Valandra were unable to attend.

Staff members present included Tom Magedanz, Principal Research Analyst, and Rhonda Purkapile, Senior Legislative Secretary.

A list of guests present during all or part of the meeting is on file with the master minutes.

(NOTE: For sake of continuity, the following minutes are not necessarily in chronological order. Also, all referenced documents are on file with the Master Minutes.)

Mr. Magedanz, LRC, briefed the committee on a letter that has been drafted for presentation to South Dakota?s congressional delegation with regard to the issue of nursing homes on Indian reservations. Chair Putnam informed the committee that he had received correspondence from Senator Tim Johnson with regard to this issue, and with regard to pending legislation on the reauthorization of the Indian Health Care Improvement Act.

Chair Putnam directed staff to send the original letter to Senator Daschle and Representative Thune, and that a different letter be drafted to Senator Johnson reflecting the response received from Senator Johnson?s office.

At the request of Senator Volesky, Mr. Magedanz presented the committee with a copy of SB 70 from the 2001 Legislative Session, which would have required certain statistics regarding traffic law enforcement to be collected and maintained (Document #1).

Mr. Mike Leidholt, Hughes County Sheriff and President of the South Dakota Sheriffs? Association, testified that law enforcement is sensitive to the issue that has been identified as racial profiling; however, they prefer to use the term "bias-based policing." Sheriff Leidholt testified that law enforcement is definitely opposed to bias-based policing. The Sheriffs? Association is being proactive by actively pursuing strategies to change the perception that bias-based policing occurs, because perception is a large part of the problem. They are working on model policies to be implemented by law enforcement agencies statewide, training for officers and supervisors on this issue, and increased use of car cameras in patrol cars, and have started a focus group to deal with this issue. Sheriff Leidholt suggested to the committee that money would be better spent on the suggestions just presented rather than the collection of possibly inaccurate data.

Senator Volesky asked why the data collected would be inaccurate. Sheriff Leidholt replied that it was his understanding that under SB 70, the officers would be asked to guess the ethnicity of a person, which would be difficult to do in many cases.

Senator de Hueck asked whether most law enforcement officers statewide even ask the race question, and Sheriff Leidholt responded that in most cases, they do not.

Mr. Terry Lohr, Watertown Chief of Police, testified that profiling is not necessarily a bad word in law enforcement because they utilize criminal profiling all the time. Racial profiling is a symptom of bias-based policing. Through education, training, and officer selection, those biases can be minimized. Most cultures have the greater majority of good people and just a few "bad apples." Chief Lohr did not feel that the collection of racial data would be useful in law enforcement because the validity of the information could be questioned. He noted that on the national level, there is a problem with bias-based policing, and it needs to be dealt with; however, he does not believe that data collection is the answer. He stated that different communities have different demographics, and self-reporting is the least valid method of collecting statistics. Chief Lohr noted that car cameras are a very important tool and should be installed in all patrol vehicles.

Chief Lohr testified that law enforcement work has a high standard at entry level positions and officers go through extensive training before they are put on patrol. Most of the officers are good officers. Chief Lohr advocated "community-based" policing as a means of dealing with bias-based policing.

In response to committee questions, Chief Lohr indicated that one of the main tasks of a law enforcement focus group organized by the Attorney General?s Office is to put together a standardized policy statement that will work for all law enforcement personnel in South Dakota. If policies are then violated, it would be handled on a department by department basis. The group hopes to have these recommendations finalized by mid-December.

In response to further questions, Chief Lohr testified that it would be naïve to believe that bias-based policing does not exist in South Dakota, although he stressed that he has personally never witnessed an incident.

Lieutenant James Halling, Pierre Police Department, and a member of the South Dakota Peace Officers? Association, testified that the organization has over 500 members statewide and includes law enforcement personnel from all levels. He noted that the majority of the members are street officers. Lt. Halling testified that he has been on patrol for 21 years. He noted that the traffic stop is one of the most volatile and dangerous situations a police officer can encounter. He requested that the Legislature not make the situation any more difficult than it currently is by requiring the officer to ask the race question. Race is such a sensitive issue that asking the question could turn a routine traffic stop into a confrontation. Lt. Halling testified that police officers? stops are scrutinized every day. There are laws today that would take care of any issue with regard to an officer making an improper stop. Lt. Halling testified that while the S.D. Peace Officers? Association does not condone racial profiling in any way, they do not support any legislation that would make an officer?s job more difficult than it already is.

Representative Van Norman clarified that the legislation does not require the officer to ask the race of individuals, it merely requires the officer to check the appropriate box on a ticket. Lt. Halling responded that in the Pierre Police Department, if the officer does not know the race of an individual, they do not ask and they leave that spot blank on the ticket. He questioned the usefulness of collecting invalid data.

Mr. Alan Aden, Chief of Police, Pierre, and a member of the South Dakota Police Chiefs? Association, informed the committee that he had read of a new phenomenon entitled "de-policing," which refers to situations in which an officer chooses to look the other way rather than stopping the wrong car with the possibility of a complaint being lodged. Every internal investigation of an officer takes that officer off the street while the investigation is taking place, and the officer may then have a black mark on his or her record. Some police officers have apparently taken the position that you get paid the same whether or not you are taking calls. Chief Aden testified that he does not want legislation passed that would discourage law enforcement officers from doing their jobs.

Chief Aden noted that the role of law enforcement has changed since the September 11 terrorist attacks. The department is now doing more security checks. He also stated that they have found citizens doing racial profiling with regard to citizens of Middle Eastern descent. Law enforcement must also respond to these types of situations. Chief Aden stated that law enforcement wants to take a proactive approach to this issue through implementation of appropriate policies and the training of officers.

Senator Volesky commented that it is not his intention for crime to go undetected or unpunished, but the issue is whether non-white individuals in South Dakota in various places in this state are more susceptible and more likely to be stopped for a traffic violation compared to white individuals. He felt that the only way to assure that this is not happening is to collect valid statistics from those traffic stops.

Chief Aden stated that if an individual believes they were stopped because of the color of their skin, there is a method already in place for registering that concern. In this situation, video cameras in every patrol car would be beneficial because the administration could then review a particular stop. Chief Aden also noted that cameras have proved the concern to be false in many cases; however, the problem comes when the individual has already told others his perception of the stop and the police are not given the chance to prove otherwise to these people. By the same token, the camera will verify improper behavior by the officer if such behavior occurred.

Chair Putnam asked whether federal funding is available for car cameras. Police Chief Aden responded that he is not aware of any federal funding available for the purchase of car cameras. Mr. Dick Tieszen, representing the S.D. Sheriffs? Association and the S.D. Police Chiefs? Association, commented that it is his belief that the highway patrol has made application for additional funding for car cameras and the old car cameras will become available to the cities and counties. He noted that some of this activity has already occurred.

Chair Putnam asked Chief Aden whether he has a policy with regard to the use of car cameras by his officers. Chief Aden replied that use of the car camera is at the discretion of the officer. However, if the officer turns on the squad car lights, the camera will automatically turn on because it is wired into the lights. In response to further questions, Chief Aden said that the average car camera costs about $5,000 and has a life expectancy of five years. They require a significant amount of maintenance.

Senator de Hueck asked whether the Pierre Police Department has a standard operating procedure for officers with regard to recording of race on traffic stops. Chief Aden replied that there is not, noting that the only time race is entered on a ticket is if the individual is detained. He noted that the computer system being used by the Pierre Police Department does not allow for race to be entered for traffic citations, but it is processed for the arrest.

Chair Putnam asked why the race box is included on the ticket it if is not always marked by an officer. Chief Lohr responded that it is included as part of the physical description on a uniform traffic ticket. If the department needs to issue a warrant, race is used as part of a physical description.

Senator Hagen commented that 18 other states have adopted legislation on racial profiling, which indicates to him that the problem does exist. He noted that he lives on the largest reservation in South Dakota. He stated that the most frequent complaint he receives is that when Indians travel to events off the reservation, they see a larger number of law enforcement officers on the roads. He feels that this is racial profiling. He noted that there are several non-Indians who work on the reservation and have Nebraska license plates. The vehicles with Nebraska license plates seem to be waved on through, but the vehicles with the "65" plates (Shannon County) are stopped. Senator Hagen said that there is a racial profiling problem in South Dakota.

In response to committee questions, Senator Volesky noted that President Bush has asked Attorney General Ashcroft to develop anti-racial profiling legislation.

Mr. Tieszen presented the committee with a copy of Administrative Rule 20:03:01 (Document #2), the uniform traffic ticket, noting that there is no spot on the ticket to indicate the race of the individual receiving the ticket. It was noted that this change was effective in December 2000.

Mr. Gene McCowan, Pierre, a member of the Pierre Indian Council, testified that the Native American community of Pierre would like to take this opportunity to express its appreciation of Pierre Police Chief Aden?s willingness to work with them on problems they perceive in the community. Mr. McCowan reported that the council met with Chief Aden with regard to traffic stops being made with no reason given for the stop. Chief Aden allowed them to examine a computer printout of two month?s worth of traffic stops. The council felt that a number of stops were being made by one particular officer. After a policy was instituted that the officers must give a reason for the stop on the ticket, the number of stops dropped, particularly by that officer. Mr. McCowan disagreed with Chief Aden?s belief that race information is not necessary on a ticket. He said that it would make a difference to Native American people because data would make it possible to demonstrate that racial profiling is or is not happening, and facts would be available to back up this claim. Mr. McCowan stated that if there is truly no problem, then data collection should not be an issue.

Mr. McCowan testified that his organization does not want to ever get to the point where people who are breaking the law are not being punished. He noted that as long as the same standard is applied to everybody, there should not be a problem. However, he stated that many Native Americans do feel that there are instances when their race is being singled out.

Ms. Marge Two Hawk, Pierre, a member of the Pierre Indian Council, testified that the situation has improved after working with Chief Aden, who has been quite helpful.

Representative Jensen asked whether the Pierre police are stopping a high number of Native Americans. Mr. McCowan replied that after the meeting with Chief Aden, they saw a dramatic drop in the number of Native American stops.

Senator de Hueck commented that the committee has been hearing that this data would be of no help, but in this instance, it was a help.

Representative Van Norman suggested that the committee could authorize further data collection, or authorize several Native American task forces to encourage all law enforcement entities to work together with Native Americans to address these concerns in communities across the state. He also suggested that the county designation number be eliminated from license plates in South Dakota, thereby eliminating the chance of profiling based on county of origin.

Reverend Les Campbell, Mobridge, a member of the Mobridge Race Relations Committee, testified that the committee was formed after two very high profile race-related cases in Mobridge involving the death of Native Americans. He noted that this committee is doing some positive things to bring all cultures in Mobridge together. In response to questions, Reverend Campbell stated that this committee has discussed the issue of racial profiling. He noted that there is currently a problem with no sign noting the need for speed reduction before the railroad bridge coming into Mobridge from the Standing Rock Reservation, and people are complaining about getting speeding tickets. They have requested that a sign be installed before the railroad bridge, but to date none has been installed. He stated that in towns bordering Indian reservations, both cultures must agree to try to deal with the situation before progress can be made.

Ms. Deb Phillips, President of the Dakota Chapter of the American Civil Liberties Union (ACLU) of the Dakotas, spoke from prepared remarks (Document #3). She presented the committee with a copy of A Resource Guide on Racial Profiling Data Collection Systems (Document #4), and a summary of that guide (Document #5).

Ms. Phillips testified that racial profiling is a term used by many people to refer to all types of racial discrimination. She noted that racial profiling occurs when a police department or similar government agency suspects someone of an offense not based on particularized suspicion, but based in whole or significant part on the race of that person. Ms. Phillips testified that the simple act of collecting five pieces of information can enable police department administrators to detect the problem in their departments and address those problems. She noted that it is usually only a portion of the police department that is actively racially profiling. The five pieces of information are: 1) the perceived race/ethnicity of the motorist; 2) the reason for the stop; 3) whether a search was conducted; 4) whether drugs or other evidence of illegal activity was found; and 5) whether a citation was issued or an arrest was made. This data collection enables higher agencies to detect problems and address them if the local department refuses to handle the problem internally. The easiest way to collect this data would be through the dispatch system. Data collection does not have to be expensive, Ms. Phillips reported. It can be as inexpensive as filling in a ticket or the dispatcher performing a few keystrokes.

Ms. Phillips noted that not every police department is open-minded and willing to work with its citizens on perceived problems in the community.

Chair Putnam recessed the committee at 12:05 p.m. for lunch and reconvened the meeting at 1:10 p.m.

Due to a scheduling conflict, a member of the committee could not attend the afternoon session of the meeting, thereby reducing the committee to five members in attendance, which did not constitute a quorum. Chair Putnam noted that the committee would not be able to take official action on any matters without a quorum.

Mr. John Boyles, White River, testified that White River is a "border town" and there seems to be a higher number of highway patrol than usual on the roads into and out of White River on the first of the month through the tenth of the month. He questioned who is requesting these additional patrol officers. He also testified that the highway patrol has no authority to make stops on tribal lands and that individuals are not being advised of this by the attorneys or the judges. Mr. Boyles also testified that he has heard inappropriate comments by law enforcement personnel over the scanner, which monitors two-way radio traffic.

Mr. Ray Marks, Ft. Thompson, testified that several individuals have been arrested for speeding on the detour for construction on Highway 34. This detour is five miles off the highway, and fines doubled because it is deemed a construction zone. He felt that this situation should be investigated.

Mr. Mark White Bull, Standing Rock Reservation, presented the committee with a written statement from Mr. Charles Murphy, Tribal Chair, Standing Rock Sioux Tribe (Document #6). Mr. White Bull testified that there seems to be a high number of traffic stops in Mobridge due to dangling objects from the rear view mirror. He noted that many Native Americans must spend time in jail because they do not have the money to pay their fines. He felt that there are a lot of stops in Mobridge of "Indian cars" and most often the vehicles are searched. He stated that hearings such as this one should be held in town bordering reservations where Native American populations are larger.

Representative Jensen asked whether there are any Native Americans on the police force in Mobridge. Mr. White Bull responded that there are not.

Ms. Camille Cadotte and her daughter Christmas Cadotte, White River, appeared before the committee. Ms. Cadotte testified that her daughter was assaulted by three drunken white adults, and when her daughter approached a law enforcement officer for help, he questioned why she was out so late and told her to go home. Ms. Cadotte testified that she took her daughter to the emergency room the next day and found that she had three cracked ribs, a concussion, and damage to her back and leg. She then visited the Sheriff?s office and filed a report about the assault and the officer?s conduct. To this date, Ms. Cadotte said that no charges have been filed against these people. She also noted that the State?s Attorney and the Sheriff will not return her phone calls. No pictures of her daughter?s injuries were taken by law enforcement.

Mr. Webster Two Hawk, Commissioner, Bureau of Tribal Government Relations, testified that when he gets calls from individuals, he always advises them to be sure and have the time, date, and names involved in the incident. He cited several instances of when he was stopped and a few others he knew of were stopped by police for innocuous reasons. He felt that these incidents were just plain harassment. He questioned how progress in this area can be tracked, unless there are statistics to track. He did not feel it would be very expensive to keep statistics.

Representative Van Norman suggested that Mr. Two Hawk, a member from every tribal government, and members from the communities be involved in the task force being proposed by the Attorney General on racial profiling.

Ms. Mary Ann McCowan, Pierre, testified that she and her mother were detoured into a traffic check line when coming across the bridge from Ft. Pierre to Pierre. She stated that she felt her vehicle was singled out for questions. Upon complaint to Police Chief Aden, he indicated that her vehicle was not singled out, but merely the next vehicle in line to be checked.

Mr. Tom Katus, Rapid City, Director of the Rural Ethnic Institute, testified that Rapid City is a very diverse city racially. There are many strides being made in Rapid City with regard to race relations. In the past year, three different race relation committees have been formed. Mr. Kates testified that obviously racial profiling exists, but he does not know what the answer is. He suggested, as a possible solution to the race question, having an individual?s race identified on the driver?s license, rather than having the officer ask the race. This would be self-profiling from the individual because they could self-identify themselves as to their ethnicity. He felt this would solve the problem of the officer having to guess the race of an individual or asking the individual his race. He also suggested that the committee alternate its meeting locations in various parts of the state.

Ms. Shirley Marvin, Standing Rock Reservation, testified in favor of racial profiling legislation. She noted an incident where an individual was chased by the highway patrol onto tribal lands right up to their front door. The tribal police were called to escort the highway patrol officer off the tribal lands because he had no jurisdiction on tribal lands. For three months afterwards, every car coming off the reservation was stopped. Ms. Marvin stated that Indian vehicles are very easy to identify, and they get stopped before anybody else, even when they are well within the speed limit. Ms. Marvin requested that the committee set up a meeting with the Department of Game, Fish and Parks with regard to the mitigation legislation.

Ms. Faith Taken Alive, Wakpala, testified that her 70-year old mother was stopped because she had a dream catcher hanging from her rearview mirror. While she was being questioned by the officer, two more vehicles drove by with dangling objects from their mirrors, driven by white individuals. These vehicles were not stopped. Ms. Taken Alive also reported that her vehicle was targeted for some reason in June 2000, and her daughters began being harassed by a law enforcement officer whenever they were in McLaughlin. She noted that there are blatant acts of racism in that town. She questioned the officer on why he was even stopping her daughters because he had no jurisdiction in McLaughlin.

Ms. Madonna Thunder Hawk, Cheyenne River Reservation, testified that she has no data, but from the police reports given to the committee today, the police seem to believe that there is nothing to be gained from collecting data. However, she noted that in Pierre, changes were made based on the findings of those individuals who were able to check the records. She testified that she has grandchildren who are growing up with the same feelings that she had when she grew up in South Dakota. Part of being Indian in South Dakota is the feeling of relief when you leave the reservation to attend an event, do business, or shopping, and return without being stopped by the police. She wondered why law enforcement does not want to collect data, and she felt that documentation and data collection are important.

Ms. Marcella LeBeau, Cheyenne River Reservation, testified that she has lived on the reservation all her life. She noted that she was in the Army Nurse Corps for three years and never experienced racism there; however, upon return to South Dakota, it is an everyday occurrence. She also stated that her family lost land to the Oahe Reservoir in the 1950s. Ms. LeBeau noted that they have lived with racism all their lives. Racial profiling does exist.

Chair Putnam presented the committee with a copy of a fax sent from Representative Bradford with regard to a racial profiling incident (Document #7), and a fax from Ms. Hazel Bonner, Rapid City, regarding a racial profiling incident (Document #8). A fax was also received and entered into the committee record from Mr. Gary Loudner, Rapid City (Document #9).

Chair Putnam noted that the committee is awaiting a report from the University of South Dakota on data gathered from information on racial profiling. He also suggested that there is the possibility of legislation at the federal level.

Chair Putnam referenced an e-mail communication he had received from Colonel Tom Dravland, Superintendent, S.D. Highway Patrol, in which Colonel Dravland stated that the highway patrol is not against data collection, but he had concerns with the method of data collection and also felt that federal action on this issue may occur soon.

Chair Putnam adjourned the meeting at 3:40 p.m.