(dissenting).
[¶ 22.] I disagree with, the majority opinion’s conclusion that the South Dakota Legislature exceeded its constitutional authority in enacting SDCL 2-2-28. Because the 1991 version of SDCL 2-2-28 violatéd the Equal- Protection Clause within the Fourteenth Amendment (amend. XIV, § 1) and the corresponding provision of the South Dakota Constitution (art. VI, § 2), the 1996 amendment was corrective and, therefore, constitutional.
[¶ 23.] The Equal Protection Clause of the Fourteenth Amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The purpose is to promote “racial neutrality' in governmental decisionmak-ing.” Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 2482, 132 L.Ed.2d 762, 771 (1995) (citations omitted). ' Thus, any legislation which makes distinctions on the basis of -race or ethnicity is inherently suspect and, thus, subject to a strict scrutiny analysis. ’ Id. (citations omitted). This includes redistricting legislation. See Shaw v. Reno, 509 U.S. 630, 644, 113 S.Ct. 2816, 2825, 125 L.Ed.2d 511, 526-27 (1993) (providing that “redistricting legislation that is so bizarre on its face that it is ‘unexplainable on grounds other than race,’ ... demands the same close scrutiny that we give other state laws that classify citizens by race.” (quotation omitted)).
[¶ 24.] In 1991, the South Dakota Legislature enacted SDCL 2-2-28:
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:
*598(1) District No. 28A — Dewey and Zie-bach counties and that portion of Corson county consisting of Bullhead, Kenel, Liberty, Little Oak, Little Eagle, McLaughlin, Ridge-land and Wakpala precincts.
(2) 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 of U.S. Highway 212 and east of SD Highway 79, excluding the cities of Belle Fourehe 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 Fourteenth Amendment. The President of the Senate in 1991 corroborated this purpose:
[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.
Race 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.”)).4 The Court also clarified that *599its holding in Shaw extended to prohibit racial gerrymandering regardless of how compact or contiguous the new district was:
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 décision 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 SDCL 2-2-28 by returning District 28 to a multi-member district. The amendment passed and SDCL 2-2-28 currently provides: “Each representative district as provided for in § 2-2-26 is entitled to two representatives.”
[¶ 27.] The plaintiffs argue that this amendment violates Article III, Section 5 of the South Dakota Constitution: “[a]n apportionment shall be made by the Legislature in 1983 and in 1991, and every ten years after 1991.” Regardless of whether the legislature was prohibited from reapportioning the district in 1996, it was required to abide by the federal constitution and when there is an unavoidable conflict between the application of state and federal constitutions, the clear language of the Supremacy Clause controls:
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.
U.S. Const, art. VI, cl. 2. After evaluating and balancing the competing constitutional values at stake, one must logically conclude that the substantive provisions of the United States Constitution control over the procedural provision within the South Dakota Constitution.
[¶ 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 SDCL 2-2-28 was invalid because it conflicted with the Due Process Clause of the Fourteenth Amendment. Furthermore, the 1996 amendment is valid because the legislature has a continuing duty of reapportionment and that duty continues until it is performed within the ambits of the state and federal constitutions. See In re Opinion of the Judges, 61 S.D. 107, 246 N.W. 295, 297 (1933).
[¶ 29.] In summary:
(1) It is clear that the condition “at no other time” has been deleted.
(2) Even if the condition remained in effect, it would not prohibit a mere correction to a reapportionment plan *600in contrast to the creation of a new reapportionment.
(3) 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.
(4) 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.
. Plaintiffs argue:
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 Ameri*599cans " ‘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.