Steven C. Emery, Rocky Le Compte, and James Picotte, Plaintiffs, v. Roger Hunt, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Carole Hillard, in her official capacity as President of the South Dakota Senate, South Dakota Senate, and Joyce Hazeltine, in her official capacity as Secretary of the State of South Dakota, Defendants. United States of America, Plaintiff, v. State of South Dakota, William J. Janklow, in his official capacity as Governor of the State of South Dakota, Harold Halverson, in his official capacity as the President Pro Tempore of the Senate of the State of South Dakota, Roger Hunt, in his official capacity as the Speaker of the House of Representatives of the State of South Dakota, Mark W. Barnett, in his official capacity as Attorney General of the State of South Dakota, and County Auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach Counties, in their official capacities, Defendants.
No. 21504
Supreme Court of South Dakota
July 26, 2000
2000 SD 97; 591
6. Disbursements to Prevailing Party
[¶31.] Finally, Culhane appeals the circuit court‘s denial of disbursements. The court held that neither party was entitled to costs or disbursements under
[¶32.] A denial or award of disbursements is reviewed under the abuse of discretion standard. High Plains Genetics Research, Inc. v. JK Mill-Iron Ranch, 535 N.W.2d 839, 846 (S.D.1995). Abuse of discretion is discretion not justified by, and clearly against, reason and evidence. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994) (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D. 1991)).
[¶33.] The prevailing party in an action is the party in whose favor the decision or verdict is or should be rendered and judgment entered. Michlitsch v. Meyer, 1999 SD 69, ¶ 12, 594 N.W.2d 731, 734 (quoting Noble v. Shaver, 1998 SD 102, ¶ 26, 583 N.W.2d 643, 648 (quoting Strand v. Courier, 434 N.W.2d 60, 65 (S.D.1988))). However, a court is not required to grant recovery for disbursements simply because a party has achieved the status of a prevailing party. Id. ¶ 13, 594 N.W.2d at 734. While
[¶34.] Affirmed in part, reversed in part, and remanded.
[¶35.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.
In the Matter of the CERTIFICATION OF A QUESTION OF LAW FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF SOUTH DAKOTA, WESTERN DIVISION, Pursuant to the Provisions of
Steven C. Emery, Rocky Le Compte, and James Picotte, Plaintiffs, v. Roger Hunt, in his official capacity as Speaker of the South Dakota House of Representatives, South Dakota House of Representatives, Carole Hillard, in her official capacity as President of the South Dakota Senate, South Dakota Senate, and Joyce Hazeltine, in her official capacity as Secretary of the State of South Dakota, Defendants.
United States of America, Plaintiff, v. State of South Dakota, William J. Janklow, in his official capacity as Governor of the State of South Dakota, Harold Halverson, in his official capacity as the President Pro Tempore of the Senate of the State of South Dakota, Roger Hunt, in his official capacity as the Speaker of the House of Representatives of the State of South Dakota, Mark W. Barnett, in his official capacity as Attorney General of the State of South Dakota, and County Auditors for Butte, Corson, Dewey, Harding, Perkins and Ziebach Counties, in their official capacities, Defendants.
No. 21504.
Supreme Court of South Dakota.
Considered on Briefs July 13, 2000.
Original Proceeding
Decided July 26, 2000.
Ted L. McBride, United States Attorney, Rapid City, South Dakota, Bonnie Ulrich, Assistant United States Attorney, Sioux Falls, South Dakota, Bill Lann Lee, Acting Assistant Attorney General for Civil Rights, Joseph D. Rich, Christopher Coates and Richard Dellheim of Voting Section-Civil Rights Division, Washington, D.C., Attorneys for plaintiff United States.
Mark Barnett, Attorney General, John P. Guhin, Deputy Attorney General, Sherri Sundem Wald, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendants.
AMUNDSON, Justice.
[¶1.] Pursuant to
Whether the South Dakota Legislature acted in violation of
Article III, Section 5 of the South Dakota Constitution , by the enactment of Chapter 21, Session laws of 1996, now codified asSDCL 2-2-28 .
In his certification, Judge Kornmann indicated that it appears there is no controlling precedent on this issue in the decisions of this Court. As set forth below, the question is controlled by our decision in In re Opinion of Judges, 61 S.D. 107, 246 N.W. 295 (1933) and is answered in the affirmative.
FACTS AND PROCEDURE
[¶2.] Plaintiffs in the District Court action are the United States and individual plaintiffs, Steven C. Emery, Rocky LeCompte, and James Picotte. The individual plaintiffs are voters and residents of Dewey County within legislative District No. 28 and are enrolled members of the Cheyenne River Sioux Tribe. They brought action in United States District Court against defendants who are Speaker of the South Dakota House of Representatives Roger Hunt, the South Dakota House of Representatives, President of the South Dakota Senate Carole Hillard, the South Dakota Senate, and Secretary of the State of South Dakota Joyce Hazeltine, all in
[¶3.] Following consolidation of these cases and upon motion by the State defendants, the District Court certified the above question of state law to this Court, which we accepted.
ANALYSIS AND DECISION
[¶4.]
The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
(emphasis added). In 1991, following the 1990 decennial census, the Legislature enacted
Each representative district as provided for in
§ 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights, District No. 28 shall consist of two single-member house districts as follows:
- District No. 28A—Dewey and Ziebach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridgeland and Wakpala precincts.
- District No. 28B—Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown, and that portion of Butte county west of
U.S. Highway 85 , north ofU.S. Highway 212 and east ofS.D. Highway 79 , excluding the cities of Belle Fourche and Nisland.
In 1996, the Legislature amended this statute as follows: Each representative district as provided for in
[¶5.] The Legislature is vested with authority to deal with any subject within the scope of civil government, except insofar as it is restrained by constitutional provisions, or by the valid treaties
[¶6.] In In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933), we answered an inquiry from the Governor regarding the authority of the Legislature to enact a reapportionment measure in the 1933 legislative session. The question required interpretation of
[¶7.] In arriving at this answer, the constitutions of several other states were examined and found to contain language similar to our own regarding apportionment. We noted: It seems to be held by
The framers of our Constitution did not, we think, have in mind the possibility that a Legislature might disobey the constitutional mandate, and might fail to make an apportionment at the time when that duty was affirmatively imposed upon them by the Constitution. It seems quite apparent that the framers of the Constitution in providing for apportionment ‘at its first regular session, after each enumeration... but at no other time,’ meant to say only this and nothing more: That the Legislature should make an apportionment at the first session after an enumeration as affirmatively required by the Constitution, and having so done (as the Constitution makers assumed they would) they should not again exercise such power until after another enumeration.
In other words, when a Legislature once makes an apportionment following an enumeration no Legislature can make another until after the next enumeration....
Id., 61 S.D. at 111-12, 246 N.W. at 296-97 (emphasis added).
[¶8.] Here we address not the Legislature‘s failure to act to perform its constitutional duty but whether the Legis
[¶9.] We reinforced this holding in 1985: When there is an affirmative constitutional mandate for legislative action at a certain specified time, there is an implied prohibition of action at any other time. Kane, 371 N.W.2d at 174 (citing Opinion, supra). Kane was decided after
[¶10.] Other jurisdictions, examining state constitutions with provisions similar to the 1982 amendment, that is, with no express prohibition of apportionment at a time other than that constitutionally prescribed, have reached the same conclusion. It is the general rule that once a valid apportionment law is enacted no future act may be passed by the legislature until after the next regular apportionment period prescribed by the Constitu
If legislative power is given in general terms, and is not regulated, it may be exercised in any manner chosen by the legislature; but where the constitution fixes the time and mode of exercising a particular power it contains a necessary implication against anything contrary to it, and by setting a particular time for its exercise it also sets a boundary to the legislative power. If a power is given, and the mode of its exercise is prescribed, all other modes are excluded.
Hutchinson, 50 N.E. at 601 (emphasis added).
[¶11.] In 1982, the voters of this State transferred the duty of apportionment, if not performed by the Legislature, to this Court. The relevant part of
An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
(emphasis added). This amendment is the latest expression of the will of the people with respect to matters embraced therein and prevails over all preexisting inconsistent constitutional provisions. State v. Sathre, 113 N.W.2d 679, 683 (N.D. 1962); 16 Am.Jur.2d Constitutional Law § 81 (1998). The plain language of this amendment by the people supports an interpretation that the Legislature may only act to apportion after a decennial census and at no other time.
[¶12.] Any Legislature whose duty it is to make an apportionment will only be those legislatures meeting in 1983, 1991, and every ten years thereafter. The constitution provides for no other time for apportionment. The 1982 amendment requires this Court to apportion the Legislature should the Legislature fail to perform its duty.2 The Court‘s duty is also mandated to be performed at a time certain. It may only be performed within ninety days after December first of 1991 and every ten years thereafter if the Legislature fails to apportion its membership by the December first deadline. If the Legislature were free to apportion at any time, why transfer this duty to the Court to be performed within a specific period of time in the event the Legislature fails to act?
[¶13.] The State argues the 1996 amendment is not an apportionment, but merely changes one voting district from two single-member districts into a dual-member district. Apportionment is defined as the process by which legislative seats are distributed among units entitled to representation. Black‘s Law Dictionary at 99 (6th ed. 1990). There is no question the 1996 amendment to
[¶14.] Further, the State claims the 1982 amendment to the Constitution, deleting the words at no other time from
[¶15.] Moreover, this argument disregards the language added by the voters in 1982, transferring the duty to apportion to this Court to perform within ninety days after the Legislature‘s deadline for performance has expired. We are not at liberty to ignore any part of the provision. A Constitutional provision, like a statute, must be read giving full effect to all of its parts. The court, in construing a constitutional provision, must have regard to the whole instrument, and must seek to harmonize the various provisions, and if possible, give effect to all of them. Assoc. Gen. Contractors v. Schreiner, 492 N.W.2d 916, 922-23 (S.D. 1992) (citations omitted). The provision is self-executing and, once the duty to apportion has transferred to this Court, prohibits the Legislature from taking further action until after the next federal census.
[¶16.] Finally, the State claims the South Dakota Legislature enacted the 1996 amendment in response to the United States Supreme Court decision in Miller v. Johnson, 515 U.S. 900, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995) to correct what it perceived to be an unconstitutional act it enacted in 1991. Miller addressed a redistricting plan in Georgia involving congres
[¶17.] Miller and its progeny must be read in conjunction with South Dakota‘s compliance with the
CONCLUSION
[¶18.] Constitutional provisions are not grants of power to the Legislature, but are instead limitations on legislative authority. Poppen, 520 N.W.2d at 241 (citing Wyatt v. Kundert, 375 N.W.2d 186, 191 (S.D.1985)). Here, the Legislature acted beyond its constitutional limits. The certified question is answered in the affirmative. The South Dakota Legislature violated
[¶19.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.
[¶20.] SABERS and GILBERTSON, Justices, dissent.
[¶21.] SABERS, Justice (dissenting).
[¶22.] I disagree with the majority opinion‘s conclusion that the South Dakota Legislature exceeded its constitutional authority in enacting
[¶23.] The
[¶24.] In 1991, the South Dakota Legislature enacted
Each representative district as provided for in
§ 2-2-26 is entitled to two representatives. However, in order to protect minority voting rights, District No. 28 shall consist of two single-member house districts as follows:
District No. 28A—Dewey and Ziebach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridgeland and Wakpala precincts. - District No. 28B—Harding and Perkins counties and that portion of Corson county consisting of Delaney, Grand Valley, Lincoln, McIntosh, Morristown and Wautauga precincts, and the cities of McIntosh, McLaughlin and Morristown, and that portion of Butte county west of
U.S. Highway 85 , north ofU.S. Highway 212 and east ofS.D. Highway 79 , excluding the cities of Belle Fourche and Nisland.
(emphasis added). In application, District 28A was carved out to include the Cheyenne River Sioux Reservation and portion of the Standing Rock Reservation, thereby creating a majority Native American Indian district. The plain statutory language unequivocally provides that the purpose of the re-districting was to protect minority voting rights. This results in racial gerrymandering—plain and simple—and, therefore, violates the
[District 28A] was configured as a single-member district primarily on the basis of race. In other words, [it] was configured as a single-member district to gather within it as many persons as possible who were [Native American] Indian so as to maximize their chance of electing a [Native American] Indian to the legislature.
4Race was the predominant factor in drawing two single-member districts in District 28 in 1991 and the other traditional districting principles were subordinated to racial objectives.
Additionally, the minutes from the Redistricting Preparation Committee continually discuss a desire to maximize the likelihood... for the Lakota to elect legislative representatives. Obviously, race was the predominant, overriding factor explaining the legislature‘s redistricting of District 28.
[¶25.] In 1993 and 1995, the United States Supreme Court held that redistricting legislation, even if it is neutral on its face, is unconstitutional if the effect is to separate citizens into different voting districts on the basis of race. Miller, 515 U.S. at 911, 115 S.Ct. at 2486, 132 L.Ed.2d at 776. See also Shaw, 509 U.S. at 657, 113 S.Ct. at 2832, 125 L.Ed.2d at 535 (stating that race-based districting by our state legislatures demands close judicial scrutiny.). In its analysis, the Court determined that districting on the basis of race assumes from a group of voters’ race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls,’ it engages in racial stereotyping at odds with equal protection mandates. Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782 (quoting Shaw, 509 U.S. at 647, 113 S.Ct. at 2826, 125 L.Ed.2d at 529) (citing Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 1370, 113 L.Ed.2d 411, 424 (1991) (stating We may not accept as a defense to racial discrimination the very stereotype the law condemns.)). The Court also clarified that
Our circumspect approach and narrow holding in Shaw did not erect an artificial rule barring accepted equal protection analysis in other redistricting cases. Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature‘s dominant and controlling rationale in drawing its district lines.
Id. at 913, 115 S.Ct. at 2486, 132 L.Ed.2d at 777.
[¶26.] After the Miller decision was issued, Senator Lee Schoenbeck testified that he believed that the creation of Districts 28A and 28B by the 1991 South Dakota Legislature violated the Equal Protection Clause of the... Fourteenth Amendment. To remedy this constitutional violation, he introduced legislation, in 1996, to amend
[¶27.] The plaintiffs argue that this amendment violates
This Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.
[¶28.] It is rudimentary black-letter law that a statute may not be enacted in derogation of the state or federal constitutions. See Kane v. Kundert, 371 N.W.2d 172, 175 (S.D.1985) (stating that [i]t is rudimentary that a statute must serve and cannot abrogate the Constitution.). When a legislative enactment does conflict with the federal Constitution, it must be disregarded—treated as if [it was] never enacted—by all courts recognizing the Constitution as the paramount law of the land. Wolff v. New Orleans, 103 U.S. 358, 365, 26 L.Ed. 395, 398 (1880). After considering these rules, we must declare that the 1991 version of
[¶29.] In summary:
- It is clear that the condition at no other time has been deleted.
- Even if the condition remained in effect, it would not prohibit a mere correction to a reapportionment plan
in contrast to the creation of a new reapportionment. - Even if the above condition remained in effect, it would not prevent a mere correction to an illegal provision in a reapportionment plan, as here.
- Therefore, the legislative enactment of
SDCL 2-2-28 was not only constitutional, it would, in effect, be required by the Constitutions of the State of South Dakota and the United States.
GILBERTSON, Justice (dissenting).
[¶30.] I agree that the 1996 amendment to
[¶31.] In ascertaining the intent of the adopters of the current constitutional text we look first to its predecessor. S.D. Automobile Club v. Volk, 305 N.W.2d 693, 697 (SD 1981). The original version of
The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state. (emphasis added).
This article traces its roots back to the Constitutional Convention of 1883 where a similar provision passed without recorded debate. See Journal of the Constitutional Convention of 1883, South Dakota Historical Collections Vol. 21, p. 350, 358 (1942).
[¶32.] However, when the same draft was presented to the 1885 Constitutional Convention, a vigorous debate ensued. One faction argued that the rapid growth of the proposed new State of South Dakota justified the legislative flexibility to authorize a more frequent apportionment. An amendment was offered to strike the words but at no other time.5 South Dakota Constitutional Convention Debates of 1885, Vol. 1 pp. 207-09. This disputed language6 was crucial to this debate as it
[¶33.] This Court was called upon to interpret this provision in Opinion of the Judges, 61 S.D. 107, 246 N.W. 295 (1933). The issue before the Court was whether the 1933 legislature had the authority to apportion itself in light of the fact that the 1931 legislature had failed to act although required to do so by
[¶34.] In dictum this Court cited cases from other jurisdictions that implied a restriction at no other time if one was not expressly drafted into the constitution. In so doing the Court failed to cite to our own constitutional debates as to the actual reason this express language was specifically used. It is very clear from these debates that if the legislature was to be precluded from authorizing an apportionment more often than every ten years, the limitation had to be an express one. No delegate in the Constitutional Convention of 1885 attempted to argue that the proposed text of this article contained an implied limitation
[¶35.] In 1982 an amended version of
The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and 1991 and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
Gone were the words but at no other time. Usually amendments are adopted for the express purpose of making a
[¶36.] This Court presumes that the people adopted this amended constitutional provision in view of and with the understanding of the prior existing provision. Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93, 102 (1974). An examination of the explanation of the ballot questions drafted by the South Dakota Secretary of State at the 1982 election sets out verbatim both the old text and the proposed text upon which the voters were to pass. (See attached copy). The deletion of the but at no other time language was obvious to the voters. The courts are under the duty to consider the old law, the mischief, and the remedy, and to interpret the constitution
[¶37.] Thus it is clear that the advocates of legislative flexibility who lost their argument at the 1885 Constitutional Convention were ultimately vindicated by the voters in 1982. The express constitutional prohibition against the now challenged legislative apportionment that was to occur in 1996, was removed in 1982. As such, I would hold the 1996 amendment to
[¶38.] For the above reasons I respectfully dissent.
1982 BALLOT QUESTIONS
STATE OF SOUTH DAKOTA
JULY 30, 1982
(MISS) ALICE KUNDERT
SECRETARY OF STATE
PIERRE, SD 57501
A
The following amendment to the Constitution is submitted to a vote of the people by initiative of the voters pursuant to the Constitution:
AN INITIATED PROPOSAL to repeal Section 5 of Article III of the South Dakota Constitution and adopt a new Section 5, Article III, relating to apportionment and the establishment of single member senate districts.
This proposed Constitutional Amendment would:
- repeal existing § 5 of Article III of the Constitution which requires the Legislature to apportion its membership every ten years according to the federal census, and at no other time, commencing in 1951, and in the event the Legislature fails to so apportion, mandates the Governor, superintendent of public instruction, presiding judge of the Supreme Court, attorney general and secretary of state to apportion within thirty days after the Legislature adjourns and requires the Governor to proclaim such apportionment; and
- place in the Constitution a new section requiring the Legislature to apportion its membership by dividing the state into single member senate districts and by establishing either single member or dual member house districts each wholly within a senate district. Each district shall consist of compact, contiguous territory containing, as nearly as practicable, equal population. Apportionment would be required in 1983, 1991, and each ten years thereafter. Upon failure of the Legislature to so apportion, the Supreme Court would do so within ninety days.
A vote “Yes” by a majority will change the Constitution as explained above.
A vote “No” by a majority will leave the Constitution as it exists.
Shall the proposed change of the Constitution be approved?.
* * * * *
Following is the full text of the petition filed in the office of the Secretary of State:
WE, THE UNDERSIGNED, duly qualified voters of the State of South Dakota, hereby petition that Section 5 of Article III of the
The new Section 5, Article III shall be as follows:
The Legislature shall apportion its membership by dividing the state into as many single-member, legislative districts as there are state senators. House districts shall be established wholly within senatorial districts and shall be either single-member or dual-member districts as the Legislature shall determine. Legislative districts shall consist of compact, contiguous territory and shall have population as nearly equal as is practicable, based on the last preceding federal census. An apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991. Such apportionment shall be accomplished by December first of the year in which the apportionment is required. If any Legislature whose duty it is to make an apportionment shall fail to make the same as herein provided, it shall be the duty of the Supreme Court within ninety days to make such apportionment.
2000 SD 102
In the Matter of the Application of B.Y. DEVELOPMENT, INC.
No. 21104.
Supreme Court of South Dakota.
Considered on Briefs March 20, 2000.
Decided Aug. 2, 2000.
Notes
The legislature shall provide by law for the enumeration of the inhabitants of the state in the year one thousand eight hundred and ninety-five and every ten years thereafter; and at its first regular session, after each enumeration and also after each enumeration made by authority of the United States, but at no other time, the legislature shall apportion the senators and representatives according to the number of inhabitants, excluding Indians not taxed and soldiers and officers of the United States army and navy. Provided, that the legislature may make an apportionment at its first session after the admission of South Dakota as a state.
This Court can take judicial notice of the facts that Native Americans in South Dakota have a common and distinct history, a special quasi-sovereign tribal status, and a unique political status under the treaties, laws, and executive orders of the United States and under the laws of South Dakota. It is clear that placing tribal members from the Cheyenne River Sioux Reservation and the Standing Rock Sioux Reservation in the same district is not to indulge in racial stereotyping but simply to recognize communities that have a ‘common thread of relevant interests.’ (quoting Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782). I disagree that we can take judicial notice that all Native American Indians within District 28A have the same perspective as the plaintiffs do in this case. To comply with plaintiff‘s request is the equivalent of engaging in racial stereotyping because we would be assuming that the affected Native Americans think alike, share the same political interests, and will prefer the same candidates at the polls. Miller, 515 U.S. at 920, 115 S.Ct. at 2490, 132 L.Ed.2d at 782 (quotation omitted). In short, plaintiffs request that we impose the very racial stereotyping the Fourteenth Amendment forbids. Id. at 928, 115 S.Ct. at 2494, 132 L.Ed.2d at 787.
We have a census taken every ten years by United States officials. It is provided here that in the year 1895 a census shall also be taken. There are two provided for in ten years, and certainly that is enough, and I do not think it wise to subject the state to any unnecessary expense, and I am opposed to striking out any portion of it. Id. 205-206. Also participating in the debate were Alphonso Kellam who also became a Judge of the South Dakota Supreme Court in 1889 and Judge Wilmot Brookings who had previously served on the Dakota Territorial Supreme Court. The Chair of the debate was the Honorable A.J. Edgerton who at that time was the Chief Justice of the Dakota Territorial Supreme Court. See generally 1999-2000 South Dakota Legislative Manual, pp. 490-91.