Buckanaga v. Sisseton Independent School District Memorandum Opinon

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- i' "ir- : sL't^^-c,,( | - " / JL, ^.q,r't''ffhited States District Court
( ' t District of South Dekota

..ORTIIERN DIVISION
Donald J. Porter
U.S. Dittict Jdg

Rm. {13 - U.S. Cotrrthouse
Pierre, South Dakota 57501

KaY Nikolas
Dakota PIains LegaI Services
P.O. Box 250
Sisseton, South Dakota 57262

E.ECEIl/E'D

l,i.riR 0 3 lgg5
ff,.7'",,8 A'UIErEA'I

E:G,r6 6,619

March 5, 1985

Jeanette WolfIeY
Kim Jerome Gottschalk
Ani t,a Remerowski
Native Arnerican RighLs Fund
1506 BroadwaY
Boulder, Colorado 80302
AtCorneYS for Plaintiffs

David Gilbertson
5I0 First. Avenue, East
Sisset.on, South Dakot'a 57262
AttorneY Eor Defendants

RE: CIVIL NO. 84-1025
CELINE BUCKANAGA, FRANCIS GILL, HARVEY DU!4ARCE, NANCY

SMITH, Individually and on behalf of att others similarly
situated, Plaintiffs
vs.
SISSETON INDEPENDENT scHooIJ DISTRICT NO. 54-5, South
Dakota;|'IAURICERABENBERG,Individuallyandinhis
of f icial capacit.y as superiniendent of the sisseton
Independent school District, sout,h Dakota, GLEN HULL,
ROBERT HORTON, RICIIARD FONDER, LEROY HELLWTG, DARYL D.
RUSSELL, LYNNETA K. FISIIER, I'IILTON LEISETH, DELANO

QHRISTIANSON, AND STEVEN PALLESEN, Individually and-in
their capacities as members of t.he Sisseton Independent-
School etard, Sout.h Dakota; LAVERNA AADLAND, Individually
and in her oEf icial capacit.y as Business Manager oE the
S isseton Independent School District, Def endant's .

Dear Counsel: MEIvIORANDUM OPINION

plaintiffs sue under the Voting Rights Act, 42 U.S.C.

S 1973b, and

Consti tution .

the Fourteenth and Fifteenth Amendments to t'he

This court has subject matter jurisdiction under

28 U.S.C. SS I33l and 1343. Venue is Proper in this court,

under 28 U.S.C. S t39t(b).



I

plaintif f s are each Unit.ed StaLes citizens , of Arnerican

Indian descent, and each resides within and is a registered voter

of the Sisset.on Independent School District, in this staEe.

Defendants are the District, the school board, the

superint,endent, and the Business Manager of the District, and the

county Audit,or of Roberts count.y, south Dakota. A1l defendants

except, the District are sued both as oEficials and as indivi-

duaIs.

The District is a public school district organized and

governed under south DakoEa law. (SDCL I3-8-39). The Dist'rict

is locat.ed in a rural area in the northeastern part of this

state. The total population of the District is 5,628, of which

I,908 are Indians. The District includes all or ParC of eight'een

townships in Roberts County and Part of t'wo townships in Marshall

County.

Plaintiffs alIege t.hat the present syseem of at-large elec-

t.ions for members of the school board has been imposed or applied

by defendant.s in a manner which denies or abridges, on accounC

of race, the right of the plaintif f s t'o vote and t'hus Indian

ci ci zens of the Distr ict have less opportun ity than whites t'o

participate in and to elect candidates of their choice' in viola-

rion of 42 U.S.C. S I923 (I982). Plaintiffs request the court to

declare that the D istr ict i s di lut.ing Lhe voting strength of t'he



Indian residents of the District; t,hat the District be en joined

from holding any further school board election under the present

system, and that the court order int.o effect a plan for school

board elections which wilI remedy the violations alleged.

I.

this act,ion is submitted t.o the court for decision upon an

"Arnended Joint St,ipulation" of Fact,s, uPon aIl the pleadings

including briefs on the merits and proposed findings of fact

filed by plaintiffs and by deEendants, upon all the depositions

taken by the parties and now filed wit,h the clerk, uPon aII affi-

daviCs, and upon all exhibits and documents filed with the

clerk. In addition the coure heard counsel for the parties in

oral argument, covering the merits, and the transcript of the

oral argument is a parc of the file.

Both parties have briefed the cause as one turning on the

a.oplication to the facEs here of Section 2 of the Voting Rights

AcE, as amended in the 1982 extension of the Act (42 U.S.C.

s 1973 ) .

plaintiffs' brief ciEes and discusses t,he Iegislative history

oE amended section 2 of the L982 extension of E,he Voting Rights

Act. Defendants cite the L982 amendment and discuss its applica-

tion here, dS do plaintiffs. Also see., Jones v. CiEv oE Lubbock,

727 F.2d 364, 378 (5r.h Cir. 1984) for an analysis of the legisla-



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tive history of t,he 1982 amendment of section 2.

ApplyingthefacesheretoLhecriteriasetout'inthe

Iegislat,ive history, the court wiII first discuss certain of t'he

factswhichitdeemsparticularlyPertinent'.
II.

The District is 436 square miles in area. The 1980 popula-

tion was 5,628. There are thus just' under 13 people Per square

mi le.

There are two municipalities. The largest, sisseEon, is

approximatley2,so0peoplelL,5TTregisteredvot,ers56tof

population 1982 figures I '
The other municipaliCy is Peever, approximately 230 people

tI70 registered voters 73t of population I982 figuresl ' Thus

approximaCely 3,030 people Iive in the two municipalities and

approximat'ely2,600peopleliveinEheruralareasofthe

District so that. if the two municipalities are omitt'ed' there are

approximately 2,600 people in 436 square miIes, aPProximately 5

people Per sguare miIe.

Thus one factor which makes t,his case unique is the striking-

Iy rural character of the District, Populat'ion-wise' Not only is

there no evidence that sout.h Dakota has a historic background of

racial discriminaton comparable to the South, where mosE of the

cases ciced on this issue arose, further, the Populat'ion numbers

and urban character of the areas involved in most' of t'he ciced



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cases are so difEerent from this District t'hat the cases are of

quest,ionable assistance in appraising t,he result uPon def endants

of t.he at-Iarge district system. An alternative plan t'o creat'e

additional election districts, €.9., nine separate districts

choosing one board member from each, could well do all Dist'rict

resident.s more harm than good' Flgures in the amended

stipulat,ion of Facts (ct. f iIe no. 57 p' 5 of stipulat'ion) show

II townships with fewer t,han 50 registered voters' with 20 whole

or part.ial townships I establishing nine singIe member district's

would inevit.ably produce some very t'hinly poPulat'ed districts'

III.

under the present at.-Iarge system'a Pot'ent'ial candidate need

only be eligible to vote in the District. There is no oEher pre-

condicion t.o candidacy except to timely Eile a candidate petition

signed by t.wenty eligibte voEers of the District' There is no

primary, no slating, no need to win by a majoricy of all votes

casc; and no ban on "single-shot" voting. t'loreover ' plaint'if f s

have never charged during the suit' t'haE the Distri'ct' has in any

manner discouraged any Indian resident f rom regiStering t'o voEe

or from vot.ing. No witness by affidavit or deposieion testified

that, he or she was in any manner discouraged from vot'ing by the

Eact t,hat t.he same election officials (aII whit'e) have been in

charge at the two polling places, Sisseton and Peever' Since I973



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The court f inds t,hat the dist'ances t'o the polling place at'

Peever, and t'o Si'sset'on, for rural vot,ersr ;r5 shown at Par. 22,

def endant.sr proposed f indings of fact (ct' f iIe 70 ' p'5) are not'

unreasonable, given the rural area involved' The court also

finds thaE the District school board were justified in not

establishing one or more polIing places wichin the Sisseton-wahpe-

ton reservation in t.he District, absent' t'he express concurrence of

t.he Tribe through its council. The offer to do so by the board

,,ras not acced on by t'he eribal council'

The court also finds ghat the voluntary change oE the lumUer of

members oE t.he District school board in 1966 from five to nine had

the ef fect, of not ressening the opportunit'y for rndian District

vocers co become candidates; instead, the change made it' more

IikelythaEsomelndiancandidateswouldbeelected.
IV.

oneoEthedefendanLschoolboardmembersinthiscaseisan

Indian,(DarylRussell).Fortwelveofthepastsixteenyears,6o

Indian has served on the school board and during 1973-74 two were

Serving.Inall,threelndianshavebeenelectedtotheschool

board since 1959r oo€ of whom (Francis Crawford) ran unopposed'

ForSometimePaSt,fouroft'henineboardmembershavebeen

eligiblecorunonlyiftheylivedinaruralarea.EachoEt'he

remaining five board members could run wheLher they lived in



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sisseton or peever or in a rural area. Every year, in June, (Def.

Proposed Findingsr oo.22, P.5 (ct. file no.70) at a school

board election held under state law, three board members are

elected, each to a three year term. If there are more than three

candidates, the three receiving the highest number oE votes are

eIecLed.

The Sisseton Independent School District is not unusually

Iarge, considering t.he rural area and sParse population' The

court cannot find that the present size of t.he District hampers

an Indian vot.er or Indian candidate more than if the District

were srnaller, yeE seill large enough t'o be f iscally able to con-
l

duce an independent school dist rict., under st,ate law.

V.

Many or most of t.he Indian residents oE the District are

enrolled members of t.he Sisseton-Wahpeton Indian Tribe. Tribal

headquarLers are Iocated within the Dist.rict and certain farm

land or pasture land in the District is, under federal law, held

in trust by t.he UniteC States Eor the Indi.an otdner. The tribe is

quasi-sovereign and is self-governing under treaty and federal

law.

The court finds that it is not unusual that no Indians have

been candidates for city office in Sis.set.on or for county office

in Roberts County. The court f inds that the enrolled t.ribal Inoian



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quige naturally looks to the t.ribal government, in the way that'

white residents look to t.he city and count,y government.

Ihe court accepts the opinion and t.est,imony of expert witness

Burns and does not accept, the conclusion or redistricting plan of

expert witness Henderson. The court finds t,hat, Burns is better

gualified in this unique case to give expert testimony, bY reason

of his Lraining and exPerience in this seate.

The court judicially notices that South Dakota became a stat,e

in 1889. The court Einds that Indians were permitted to vote in

Roberts County during t.he years referred to in the affidavit of

att,orney Milton Cameron

The court finds that lacking Bureau of fndian Affairs cer-

tification or official TribaI certificat.ion as to enrollment' in

the tribe, the evidence is not suf f icient t,o establish accurately

the identity of each voter as to Indian or non-Indian and also

f inds that iC cannot accept wit,ness Hendersonrs opinion testimony

as to which candidate any particular fndian voter cast a ballot Eor

in a District election.

The court finds no evidence that District camPaigns have been

characteri zed by overE or subt'le racial appeals.

The court further judicially notices that Mr. Ben Reifel, an

American Indian of South Dakota, was elected to t.he U.S. House of

Representatives and served ten years in the House, during t'he



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period of I95l-71. The court also judicially notices that Ramon

Roubideaux, an American Indian of south Dakota now living in

Rapid city and practicing Iaw there, was nominated for Attorney

General of sout,h Dakota by the Democratic party at the party con-

vention and ran statewide, in I970, coming wit'hin about' 2'000

votes of winning the office'

CONCLUSION

The court has carefully considered aII the factors set out by

congress in the legislative history of amended section 2 of the 1982

Voting Rights Act revision, and has carefully considered the

tot,ality oE the factual circumstances and concludes that the

District at-Iarge school board elect'ion process does not violate

section 2. The court also concludes that, the plan offered by

plaintiffs would result, in a lesser compliance with Section 2 and'

is offered to obtain Proport.ional representation and on no other

basis. Accordingly, enforcement cannot be ordered under section 2(b) '

TheplaintiEfsdidnotargueorbriefanyissueastoehe

Fourteenth or Fifteenth Amendment that was not already covered by

plaintiffs briefing and argument under the Voting Rights Act' and

the court concludes plaintiff has failed to show a violation of

the Act or of the Fourteenth or Fifteent'h Amendments'



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This opinion constitut,es the findings of fact and concluglons

of law of t,he court.

Judgment, shall be entered dismissing t,he complaint on the

ruer i t,s .

BY THE COURT:

Wy-rePA/|-'re
ffiStnrct JUDGE