Attempting to keep American Indians away from the ballot box has been going on ever since the majority of Indians gained the right to vote 89 years ago. In court, Indians have often prevailed in their efforts to stop this racist discrimination. In fact, just last Monday, a Supreme Court ruling was made in favor of the Inter Tribal Council of Arizona, an organization of the state's 20 tribes.
But defeating discriminatory laws and actions requires going to court in the first place. That can an expensive and difficult task for many tribes or individual Indians.
The Indian vote matters. In all but seven states, Indians constitute fewer than 5 percent of the eligible voters. In only two states—Alaska and New Mexico—do they account for more than 10 percent of the total population. But even in some cases where they count for no more than 1 or 2 percent of the population, Indian voters have been critical to the success of candidates for public office, and Democrats have usually been the beneficiaries.
In North Dakota in 2012, thanks in part to the work of Seminole, challenger Heidi Heitkamp squeaked by to win a Senate seat in 2012. Indians, among whom she had campaigned heavily, provided her margin of victory. She now sits on the Committee on Indian Affairs. In 2008, in what turned out to be the longest vote count in Minnesota history, Al Franken won a Senate seat thanks in part to the efforts of Flanagan, who had previously volunteered for Paul Wellstone. As with Heitkamp, Indians gave Franken his margin of victory. He now sits on the Committee on Indian Affairs.
Mobilization of the Indian vote was also crucial in the 2000 defeat for reelection of Republican Sen. Slade Gorton, the anti-Indian former attorney general of Washington state. Maria Cantwell won that contest by an extremely narrow margin. She is now chairwoman of the Committee on Indian Affairs. In 2002, the Indian vote gave the margin of victory to South Dakota Democrat Tim Johnson in a squeaker Senate race against John Thune. Johnson is a member of the Committee on Indian Affairs.
Today, throughout the nation, some 85 Indians serve in elected office. There are two congressmen, numerous state senators and representatives, local sheriffs, county commissioners and city council members. Indians now have more authority to influence budgets and policies than at any time in U.S. history.
So what's the problem?
Getting the right to vote was hard. But getting the right enforced and keeping it from being diluted by various shenanigans so that Indians get a real voice at the polls has not been easy.
From the founding of the Republic, American Indians had been denied citizenship except when they became naturalized, or under special statute or treaty. But to become a citizen and exercise the franchise required Indians to renounce their tribal citizenship, give up their culture and language and assimilate into the dominant culture. In other words, they had to stop being Indians.
The Fourteenth Amendment, which gave citizenship and the vote to any male born in the territory of the United States, specifically excluded Indians, just as the original Constitution had done. But the phrase "Indians not taxed" was taken by many legal scholars and politicians at the time the amendment was ratified to exclude only tribal Indians. That is, those whose land was held in trust by the U.S. government and therefore not taxed. But, in the case of Elk v. Wilkins (1884), the Supreme Court held that Indians who voluntarily severed all ties to their tribes and paid taxes did not automatically gain citizenship.
More about the Indian vote can be found below the fry-bread squiggle.
It was not until after World War I that the situation began to change. More than 7,000 Indians served in the military during the war. In recognition of that, in 1919, Congress passed legislation that all Indians who had served honorably in the armed forces were granted American citizenship. That, plus the suffragists' hard-won success at gaining the vote for women, spurred a movement to extend the franchise to all Indians. And under the Indian Citizenship Act of 1924, all Indians were theoretically granted citizenship.
That should have ended debate on the subject. But it didn't.
Some states continued to deny Indians the right to vote by means of poll taxes, literacy tests and pure intimidation, much like the Jim Crow laws of the South were used to keep blacks from voting.
But other states continued used various justifications for keeping Indians from voting. Colorado, Maine, Mississippi, Montana, Nebraska, Utah, Washington and Wyoming all found means to blocking or diluting the Indian vote.
Although it's not widely known, the Voting Rights Act of 1965 included American Indians in its mandate. Because of the act, Indians on the Ute reservations of southwestern Colorado finally obtained guaranteed voting rights in 1970. Under Section 5 of the Voting Rights Act (the teeth-filled section of the law likely to be overturned by the Supreme Court sometime in the next few months), certain states or selected counties of states that previously employed discriminatory means to restrict voting by people of color are required to get federal approval in advance of any changes in voting laws or practices before they can be implemented. "Pre-clearance," it's called.
This isn't ancient history. Section 5 has been used in the 21st Century to force state and local authorities to change racist practices curtailing the Indian vote. Here are two instances:
While lawmakers have squelched the Indian vote in several states in spite of federal law, none has been quite as bad over the years as South Dakota, a state where there are seven Sioux reservations, collectively the Oceti Sakowin, the words in Lakota meaning the "seven council fires." Slightly more than 8 percent of the population is Indian, concentrated in a few counties.
Having ignored the 1924 citizenship act, South Dakota did not repeal until 1951 its 1903 law requiring a culture test for Indians to prove they had abandoned their identity as Indians, their culture, their language and their homeland in order to vote or hold office. As late as 1975, authorities prohibited Indians from voting in elections in Todd, Shannon and Washabaugh counties, whose residents were overwhelmingly Indian. The state also prohibited residents of these counties from holding county office until as recently as 1980.
But South Dakota continued suppressing Indian voting rights decades later.
As a result of the 1975 amendments of the Voting Rights Act, the counties of Shannon and Todd, home to the Pine Ridge and Rosebud Indian reservations respectively, became subject to pre-clearance. Eighteen other counties, because of their large Indian populations, were required to conduct bilingual elections. The state's Republican attorney general and notorious Indian-hater, William "Wild Bill" Janklow, was infuriated.
In a formal opinion addressed to the secretary of state, he derided the 1975 amendment and called the Voting Rights Act itself an unconstitutional federal encroachment that rendered state power “almost meaningless.” He quoted Justice Hugo Black’s dissent in South Carolina v. Katzenbach (which held the basic provisions of the Voting Rights Act constitutional), saying that Section 5 treated covered jurisdictions as “little more than conquered provinces.” A remarkably ironic assertion given the history of U.S. and South Dakota double-dealing with the tribes.
Meanwhile, Janklow advised the secretary of state in 1977 not to comply with the pre-clearance requirement. He said, “I see no need to proceed with undue speed to subject our state’s laws to a ‘one-man veto’ by the United States Attorney General.” When a U.S. Commission on Civil Rights report confirmed that South Dakota had violated the civil rights of Native Americans, Janklow called the report “garbage.”
State officials went along with him. From 1976 until 2002, they passed more than 600 election-related statutes and regulations that affected Shannon and Todd counties, including a state redistricting plan. But fewer than 10 of these changes were submitted for pre-clearance. After two lawsuits in 1978 and 1979, the federal Department of Justice simply ignored South Dakota's Section 5 scofflaws. You read that right. Nobody from the Department of Justice did squat to stop the racist application of voting laws in South Dakota for nearly 23 years.
Finally, in 2002, the American Civil Liberties Union filed a federal court challenge to these laws on behalf of four Lakota voters. Most of the 600 laws passed without pre-clearance were not objectionable. But the ACLU identified a dozen that were discriminatory. The lawsuit sought a court order prohibiting the state from implementing any of the statutes until South Dakota complied with Section 5. The federal court entered a consent order in December 2002 that directed South Dakota to develop a comprehensive plan “that will promptly bring the State into full compliance with its obligations under Section 5.” That process was completed in 2006.
Such slaps in the face haven't stopped South Dakota from trying other shenanigans, such as restrictions on the days allowed for early voting in reservation-dominated counties and limiting the number of polling stations.
Another recent instance of institutionalized racial discrimination involved Fremont County, Wyoming. The county has five commissioners. Even though the people of the Eastern Shoshone and Northern Arapaho tribes of the Wind River reservation make up 22 percent of the population of the county, none had ever been elected to a county commissioner post because at-large elections favored the non-Indian majority. An ACLU lawsuit was launched in 2005.
The county was represented by the right-wing Mountain States Legal Foundation, founded in 1977 by James Watt, the crooked Secretary of the Interior under Ronald Reagan. MSLF has a long history of suing over protections for sacred sites, opposing subsistence rights for Alaska Natives and representing clients who oppose tribal sovereignty. The Fremont case took five years to wind its way through the courts.
Before it was resolved, the negative publicity around it helped elect Keja Whiteman, a member of the Turtle Mountain Band of Chippewa whose husband is Arapaho, to the Fremont board of county commissioners.
In 2010, U.S. District Judge Alan B. Johnson ruled that the at-large system effectively diluted the votes of the county’s Indian population. He ordered the county to adopt a district system for its commissioners, with one district created in a way so that members of the two tribes are in the majority. Fremont County appealed the case and argued for a hybrid system of districts instead. The court threw that idea out. All five commissioners, who serve staggered four-year terms, have now been elected by district, with Whiteman having been reelected in 2010.
There are a score of other cases undertaken because of redistricting plans designed to water down voting strength, unfounded allegations of election fraud on reservations, burdensome identification and registration requirements, lack of language assistance, distant polling stations and noncompliance with the Voting Rights Act. The fight for Indian voting rights is not over.
An excellent book on the subject is Laughlin MacDonald's American Indians and the Fight for Equal Voting Rights (2011).