The next federal judge serving western South Dakota should be culturally competent in Lakota culture and history, said retiring Judge Jeffery Viken.
"The history of Native people is critically important — in terms of what happened and the trauma and the beauty of the culture and all of these acts of Congress that diminished Native lands in South Dakota down to these nine reservations,” Viken said last week in his chambers in the federal courthouse in downtown Rapid City.
“The history of that is critically important to understand how people function now and why the level of poverty is what it is, substandard education, substandard health care, problems with chemical dependency,” he said. “There are reasons and roots for those issues that bring people to this court every day.”
The South Dakota Democratic Party has submitted recommendations to President Joe Biden for Viken’s replacement as well as for the U.S. Attorney and Marshal in South Dakota, Chair Randy Seiler said Tuesday.
We received an “overwhelming response” of South Dakotans interested in these positions, said Seiler, a former U.S. Attorney who ran against Attorney General Jason Ravnsborg in 2018.
U.S. Attorneys and Marshals are replaced when there’s a new president. Federal judges have lifetime appointments but the western division of South Dakota needs a new one since Viken decided to retire on Oct. 1.
Candidates for these positions are usually selected by a U.S. senator or representative of the president’s same party but all three members of South Dakota’s delegation are Republicans, Seiler explained.
The next option is for the recommendations to be handled by a statewide election official of the same party — something else South Dakota doesn’t have. That’s how the responsibility fell to the state’s Democratic Party, a situation seen in other states such as North Dakota.
Seiler said he and the party discussed potential recommendations with former South Dakota members of Congress, current state Democratic leaders and federal judges.
“The political aspects of this matter” in addition to how qualified and experienced they are for the job, Seiler said. He said he considered how engaged candidates have been with the Democratic Party and if they’ve ran for office.
All of the five full- and part-time federal judges in South Dakota — all nominated by Democratic presidents — were involved in the party in some way, Seiler said. Once people become federal judges, they can’t be involved in any politics, Viken said.
The recommendations to the Biden team included multiple candidates for at least one of the three positions, Seiler said. He declined to name them.
There is no deadline for when Biden must announce his nominations, Seiler said. He noted that former U.S. Attorney Brendan Johnson wasn’t sworn in until nine months into Barack Obama’s presidency.
Biden's nominations for federal judge and U.S. Attorney must be approved by the U.S. Senate.
“A Native person would be an extraordinary candidate for this job,” Viken said.
The 68-year-old noted that there are few Indigenous federal judges, and there’s never been one in South Dakota.
The state has had at least one Indigenous U.S. Marshal, Bob Ecoffey, the current police chief of the Oglala Sioux Tribe. It’s also had at least two Indigenous U.S. Attorneys, Philip Hogen and Terry Pechota, who both maintain private practices in the Black Hills.
Biden released a memo making it clear that he wants to see judges with diverse identities and legal backgrounds, Viken said. The president is looking for people who’ve served as defense and civil rights lawyers, not just those who’ve worked as prosecutors and in corporate law firms.
Whether the new judge is Indigenous or not, Viken said, it’s important for them to have “cultural competency” with Lakota history and culture since 50 to 60% of cases stem from the Pine Ridge Reservation.
“It’s a very unique criminal docket … because of the level of work we have under the Major Crimes Act in Indian Country,” he said in reference to the law that says serious crimes on reservations are handled in federal instead of state court. “There are only two or three other jurisdictions in the country that have anything close to what we do."
A judge needs to “understand the historical trauma and dysfunction that results in the criminal case load that we have here,” Viken said. “To embrace that and understand that is not to say that ‘oh, we're here, we're so sympathetic, these crimes are just not serious.’ That's not it at all. There are real victims in some of these cases. But I think somebody has to have the intellectual and the emotional capacity to take that in."
“If you just read the paper and follow the news, it seems like everybody coming off Pine Ridge is a criminal. Not true,” said Viken, who was adopted decades ago into a Lakota family through a hunka ceremony. “Pine Ridge is a glorious culture and it's been misrepresented every which way by national publications and films, as well as locally.”
After every trial involving a defendant from the reservation, Viken said, he tells the jury that "they're seeing the most difficult part of life, Pine Ridge is filled with wonderful people and families.”
Viken said the new judge must know about treaty history, especially the 1868 Treaty of Fort Laramie, a topic that often comes up in court.
The judge must also be familiar with civil law. Viken said unique civil issues to the division involve lawsuits related to the Sturgis Motorcycle Rally, Indian Health Service and public lands in the Black Hills.
Viken worked as a federal prosecutor, federal public defender and in private practice before President Barack Obama nominated him to be a federal judge in 2009.
"I may have, I don't know,” Viken said about whether he would delayed retirement if Donald Trump had won the election. "I would have looked at it. I had some concerns about people who were being put forward for the district courts and the manner of their selection.”
“I can't tell you the change in administration is the only reason I'm taking senior status, that's simply not true,” he said. Viken said the “driving factor” is the fact that he’s becoming eligible for retirement in August.
Viken, who’s worked in law for 44 years, said he’d like to spend more time with his wife of 41 years, attorney Linda Lea. He said they look forward to having more time for their hobbies — hiking in the Black Hills, international travel, collecting Native American artwork, cooking for and attending group dinner parties, spending time with their hunka family on the reservation, and supporting nonprofits related to the arts, education, women and children.
However, Viken is still interested in public service so he's retiring to senior status — where he will work at least a 25% caseload — instead of taking a full retirement.
He said he will be able to help the next judge adjust to their new role while helping to process a large case load. The Rapid City judge handles 100 cases more than the federal judges based in Pierre and Sioux Falls do each year.
— Contact Arielle Zionts at firstname.lastname@example.org.