COMMITTEE ON HOUSE ADMINISTRATION
RANKING MEMBER JOSEPH D. MORELLE (D-N.Y.)
JULY 2024 | 118TH CONGRESS, SECOND SESSION
REPORT ON
Voting for Native Peoples:
Barriers and Policy Solutions
COMMITTEE ON HOUSE ADMINISTRATION
RANKING MEMBER JOSEPH D. MORELLE (D-N.Y.)
JULY 2024 | 118TH CONGRESS, SECOND SESSION
REPORT ON
Voting for Native Peoples:
Barriers and Policy Solutions
i
Note to the Reader ..................................................................................................................................................iii
PART I: Introduction and Executive Summary ............................................................................... 1
PART II: A History of the Relationship between Native Nations
and the United States and the Path to U.S. Citizenship ....................................................... 4
Colonial Period (1492-1777) ................................................................................................................................ 4
Articles of Confederation (1777-1789) ............................................................................................................ 6
U.S. Constitution and Early Federal Law (1789-1820s) ..........................................................................7
Removal and Relocation Period (1820s-1887) ..........................................................................................10
Stories of Removal ............................................................................................................................................10
Talks of Citizenship ............................................................................................................................................16
Elk v. Wilkins ........................................................................................................................................................19
Subjugation without Citizenship .................................................................................................................22
Allotment and Assimilation Period (1887-1934) .......................................................................................25
Allotment Policy ................................................................................................................................................25
The Indian Citizenship Act of 1924 ............................................................................................................29
Citizenship Without Its Privileges ....................................................................................................................32
PART III: Present Barriers to Political Participation ............................................................. 40
Extreme Physical Distances to In-Person Voting and Voter Services ......................................... 40
Refusals to Provide In-Person Voting On-Reservations ....................................................................41
Limited Hours for In-Person Voting on Reservations .........................................................................42
Insufcient Ballot Drop Boxes on Reservations ................................................................................. 43
Compounding Barriers to Voting in Person ........................................................................................... 43
Lack of Standard Residential Street Addresses and Sufcient USPS Mail Services ........ 45
Lack of Standard Residential Addresses on Reservations ............................................................ 45
Inadequate USPS Services and Vote by Mail ...................................................................................... 48
Disparate Impact of Voter Identication Laws on Tribal Citizens .................................................. 54
Inadequate Language Assistance ................................................................................................................. 58
Existing Federal Protections ....................................................................................................................... 58
Unmet Needs Under Federal Law ............................................................................................................. 59
Noncompliance with Federal Law ..............................................................................................................62
Vote Dilution and Racial Gerrymandering ................................................................................................. 65
Existing Federal Protections ....................................................................................................................... 65
U.S. Census..........................................................................................................................................................67
Vote Dilution through Discriminatory Districts and Electoral Systems ......................................76
Systemic Barriers Compounding the Direct Barriers ........................................................................... 89
Housing and Socioeconomic Conditions ............................................................................................... 89
Transportation and Physical Infrastructure ...........................................................................................92
ii
Discrimination and Neglect: From Outright Hostility to Failure to
Offer Robust Options for Participation by Tribal Members and
Government-to-Government Consultation with Tribal Nations ....................................................... 96
Ofcials Interfering with Voting and Voter Registration Opportunities ................................... 96
Lack of Opportunity for Government Consultation ..........................................................................102
Hostility in Border Towns, at the Polling Place, and from Government Ofcials ................104
Making It More Difcult to Find and Access Polling Places.........................................................108
Legislative Backlash to Increased Political Power............................................................................109
Hostility Toward Native Elected Ofcials ..............................................................................................110
PART IV: A Way Forward .................................................................................................................................116
Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo
Native American Voting Rights Act ............................................................................................................... 118
Freedom to Vote Act .............................................................................................................................................119
John R. Lewis Voting Rights Advancement Act ......................................................................................120
Further Action .........................................................................................................................................................120
PART V: Conclusion ............................................................................................................................................122
Acknowledgments ..............................................................................................................................................123
iii
Note to the Reader
When this nation took its rst steps onto the world stage, we did so with a deant declaration
that governments are “instituted” among citizens rather than kings, “deriving their just powers
from the consent of the governed.” The wellspring of sovereignty stems from the people
who grant their assent to the rule of law, who lend their faith to the collective efforts of their
neighbors—this is an ever-enduring truth. This conception of liberty is infallible; many of
those tasked with protecting, defending, and expanding that liberty have not been. Those who
have governed have too often misunderstood or ignored their obligations to the people of this
nation. This is why the United States—endowed with such promise—has so often struggled
to live up to the majestic words of our founding documents, to fully earn the consent of the
governed. Our history has been a constant struggle to repair these shortcomings.
This report details one such failing—the repeated refusals of successive state and federal
governments to either respect the unfettered entitlements of national sovereignty or extend
the full rights and privileges of United States citizenship—in particular the right to vote—for
the Native peoples of North America.
As the nation reects on the centennial of the passage of the Indian Citizenship Act of
1924, the Democratic members and staff of the United States House Committee on House
Administration publishes this report with the aim of achieving two purposes. First, this report
sets out to establish a concrete record of the voting challenges that Native peoples have
historically faced in this country, produced in recognition of the millions of Native peoples
that Congress currently serves and in acknowledgment of the hundreds of millions that past
Congresses failed so completely. Second, this report demonstrates that Native peoples still
face tremendous barriers to their ability to cast a free, fair, and meaningful ballot in this
country, despite the covenant of citizenship.
Signicant work went into this report—in preparing this record, Committee members and
staff visited reservations or other Tribal lands across six states. Committee members and staff
also spoke to more than 125 individuals or groups dedicated to Tribal governance, organizing,
advocacy, or civil rights, and pored over thousands of pages of historical documents,
congressional records, legal treatises, judicial decisions, and countless other sources. While
the report is not exhaustive—there is so much more relevant history, so many additional
stories that could be included—it is my hope that this report represents a valuable perspective
on the history and current reality of Native voting in this country.
Throughout our efforts on this report, we heard time and again how the federal government’s
repeated breaches of trust and unfullled obligations have fractured our relationship with
Tribal nations and led directly to many of the obstacles this report uncovered. Undeniably,
the barriers Native peoples face to participating in federal, state, and local elections are both
substantial and unique, with each one amplifying the next. It is my belief that a thorough
understanding of this topic will compel any reader—and, hopefully, compel Congress—to
understand the urgent need for strong action to protect Native voting rights and begin to
iv
mend our relationship with Tribal nations and Native peoples. With clear eyes about both the
distressing history of Native voting in this country and the mountainous challenges that remain
for Native voters, this report makes clear that Congress owes bold, effective federal voting
rights legislation to our Native constituents, most pressingly in the form of the Native American
Voting Rights Act, the Freedom to Vote Act, and the John R. Lewis Voting Rights Advancement Act.
Only then can we hope to say in truth that the just power of the United States derives, nally,
from the full consent of the governed.
Joseph D. Morelle
Ranking Democratic Member
Committee on House Administration
PART I: Introduction and Executive Summary 1
PART I
Introduction and Executive Summary
One hundred years ago, the United States Congress passed the Indian Citizenship Act of 1924
(the “Snyder Act”), statutorily extending U.S. citizenship to Native peoples.
1
The path to U.S. citizenship for Native peoples is a complicated and troubling one. In the nearly
150 years between the United States’ founding and the passage of the Indian Citizenship Act,
the United States persistently attacked the inherent sovereignty of Tribal nations and forcibly
subjected them to increasing federal control.
2
As the edgling nation sought to expand its
territory, it used military force—sometimes supported by coerced treaties—to rid the land it
sought to occupy of Native peoples in order free it for white settlement.
3
To further the United
States’ objectives, Congress and the executive branch carefully designed federal policies that
would allow the federal government to encroach on the jurisdiction of Tribal nations and assert
increasing authority over individual Tribal citizens.
4
At the same time, Congress and federal courts repeatedly refused to recognize Native peoples
as U.S. citizens and extend to them the rights that U.S. citizenship promises.
5
Indeed, Native
peoples did not become U.S. citizens even after the ratication of the Fourteenth Amendment,
which guarantees U.S. citizenship to all persons born within and subject to the jurisdiction of
the United States.
6
Instead, throughout the nineteenth century, and into the early twentieth
century, the federal government considered citizens of Tribal nations “subjects” of the federal
government.
7
When authorities nally extended U.S. citizenship to Native peoples, they granted it on a
piecemeal basis and almost always wielded it as a weapon to undermine Tribal sovereignty
and forcibly assimilate Native peoples into U.S. society.
8
Indeed, before the passage of the
Indian Citizenship Act, the most common way for a Native person to become a U.S. citizen
was through allotment.
9
This process, which forcibly turned land held in common by Tribal
1 Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253 (Jun. 2, 1924).
2 See infra, Part I, Articles of Confederation (1777-1789)-Allotment and Assimilation Period (1887-1934).
3 See infra, Part I, U.S. Constitution and Early Federal Law (1789-1820s)-Allotment and Assimilation Period (1887-1934).
4 See id.
5 See infra, Part I, Talks of Citizenship-Allotment and Assimilation Period (1887-1934).
6 U.S. ConSt. amend. XIV, § 1; Elk v. Wilkins, 112 U.S. 94 (1884) (holding that the Fourteenth Amendment’s guarantee of
birthright citizenship to “all persons born or naturalized in the United States” does not extend to citizens of Tribal
nations because they are not “subject to the jurisdiction” of the United States); see also infra, Part I, Talks of Citizenship-
Subjugation without Citizenship.
7 See Relation of Indians to Citizenship, 7 U.S. Op. Att’y Gen. 746, 749-56 (Jul. 5, 1856); infra Part I, Subjugation without
Citizenship.
8 See infra, Part I, Allotment and Assimilation Period (1887-1934).
9 See id.
2 Voting for Native Peoples: Barriers and Policy Solutions
nations for the benet of their citizens into private property, was a key component of the
federal government’s strategy to deconstruct Tribal governments and turn Native peoples into
Americans—whether they consented or not.
10
Unlike the laws that preceded it, the Indian Citizenship Act of 1924 promised to convey
protections of U.S citizenship to Native peoples, but crucially ensured “[t]hat the granting of
such citizenship shall not in any manner impair or otherwise affect the right of any Indian to
tribal or other property.”
11
Today, a century after the passage of the Indian Citizenship Act, the full guarantees of U.S.
citizenship have yet to be fully realized. Indeed, Native peoples continue to face persistent and
substantial barriers to the right to vote in federal, state, and local elections.
12
These barriers
include:
● Having to travel extreme physical distances to access in-person voting locations
and voter services, often on dirt or poorly maintained roads and without reliable
transportation.
13
● Lack of standard residential addresses on reservations and failures of states and
localities to make voter registration and voting systems accessible to individuals using
descriptive addresses.
14
● Inadequate mail service by the United States Postal Service on reservations, including
a lack of home mail delivery, slow mail times, and insufcient post ofce boxes.
15
● Voter identication laws that disparately burden Native peoples, including laws that
fail to expressly recognize Tribal ID as valid voter ID, as well as ones that require voters
to present identication displaying a residential address or to obtain inaccessible
underlying documentation.
16
● Inadequate language assistance in Indigenous languages, including due to
noncompliance with existing federal law.
17
● Electoral systems, including at-large voting and district-based electoral maps, that
dilute the voting strength of politically cohesive Native communities.
18
10 See id.
11 Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253 (Jun. 2, 1924). Still, some Native nations and Tribal citizens
opposed the unilateral conveyance of U.S. citizenship to Native peoples without their consent. See infra, Part II, The Indian
Citizenship Act of 1924.
12 See infra, Part III, Present Barriers to Political Participation.
13 See infra, Part III, Extreme Physical Distances to In-Person Voting and Voter Services.
14 See infra, Part III, Lack of Standard Residential Addresses on Reservations.
15 See infra, Part III, Inadequate USPS Services and Vote by Mail.
16 See infra
17 See infra, Part III, Inadequate Language Assistance.
18 See infra, Part III, Vote Dilution and Racial Gerrymandering.
PART I: Introduction and Executive Summary 3
● Undercounts by the U.S. census and American Community Survey, which dilute voting
strength when the population counts are used for redistricting and undermine federal
laws that rely on the population counts for enforcement.
19
● Outright hostility toward Native voters by state and local government ofcials, election
workers, and fellow non-Native voters making it more burdensome for Native peoples
to access the ballot and discouraging them from participating in federal, state, and
local elections.
20
● A lack of trust of federal, state, and local governments due to persistent historic and
contemporary discrimination, leading to depressed voter turnout.
21
● Systemic barriers, which compound the direct barriers, including lower socioeconomic
status, inadequate transportation, and poor physical infrastructure.
22
Part II of this report provides an overview of the history of the relationship between Tribal
nations and the United States. Part III details present barriers to the right to vote for Native
peoples. Part IV provides an outlook for the future and describes legislation designed to
remedy many of the voting barriers discussed in this report. Part V concludes this report by
calling on Congress to exercise its constitutional authority to enact meaningful legislation to
protect the right to vote for Native people.
19 See infra, Part III, U.S. Census; id, Inadequate Language Assistance.
20 See infra, Part III, Discrimination and Neglect: From Outright Hostility to Failure to Offer Robust Options for Participation
by Tribal Members and Government-to-Government Consultation with Tribal Nations.
21 See infra, Part III, Lack of Trust and Low Voter Education Leading to Depressed Engagement.
22 See infra, Part III, Systemic Barriers Compounding the Direct Barriers.
4 Voting for Native Peoples: Barriers and Policy Solutions
PART II
A History of the Relationship between
Native Nations and the United States and
the Path to U.S. Citizenship
This Part provides a history of the relationship between Native peoples and the federal
government and the ways in which that relationship inuenced debates around U.S. citizenship.
This history is important for its own sake, but it is also the foundation of the contemporary
relationship between Tribal nations and the federal government. Many of the barriers to the
ballot that Native peoples face today can be directly traced to the abuses inicted by federal,
state, and local government actors throughout history.
Colonial Period (1492-1777)
From the beginning of European contact, Native peoples of Turtle Island—a name used for
North America that derives from various Indigenous creation stories about the origin of the
continent
23
—had complex and often formalized relationships with European settlers and
colonial powers. Generally, however, during the Colonial Period (1492-1777), European nations
properly understood Native nations as distinct sovereigns and recognized their inherent
authority to govern their citizens and lands.
24
Native peoples and Europeans generally lived
in “separate communities subject to different
sovereigns.”
25
As distinct sovereigns, Native and
European nations entered treaties, fought wars,
maintained alliances, and engaged in trade with
one another. Native peoples and Europeans were
citizens of their respective nations.
23 See Urban Native Collective, Turtle Island: A Testament to Sovereignty, https://urbannativecollective.org/turtle-island.
24 See Matthew Fletcher, Politics, Indian Law, and the Constitution, 108 Cal. l. Rev. 495, 505 (“Prior to the formation of the
United States, the relationship was one between foreign nations.”).
25 FRank PommeRSheim, BRoken landSCaPe: indianS, indian tRiBeS, and the ConStitUtion 17 (2012) [hereinafter “BRoken landSCaPeS”].
But see Gregory Ablavsky, “With the Indian Tribes”: Race, Citizenship, and Original Constitutional Meanings, 70 Stan. l. Rev.
1025, 1056 (2018) [hereinafter Ablavsky, “With the Indian Tribes”]. At times Tribal nations sought protection from the King
of England against other Tribal nations. Id. In these instances, “Indians were described as subjects too—by both British
Id. But Native peoples’ status as subjects of the King did not threaten their
status as members of autonomous Native nations. Id.
During the Colonial Period (1492-1777),
European nations properly understood
Native nations as distinct sovereigns and
recognized their inherent authority to
govern their citizens and lands.
PART II: History and the Path to U.S. Citizenship 5
After the Revolutionary War, little changed with respect to Native peoples’ citizenship. Despite
the founding generation’s outright hostility toward Native peoples,
26
the nascent United States
generally followed precedent for the nation-to-nation relations set during the Colonial Era.
27
In
a 1789 letter to President George Washington, General Henry Knox, the rst Secretary of War
of the United States, advocated that “[t]he independent nations and tribes of indians [sic] ought
to be considered as foreign nations, not as the subjects of any particular state[.]”
28
Similarly,
Attorney General William Bradford, the second Attorney General of the United States, argued
in a 1794 letter to Secretary of State James Madison that Tribal nations were not subject to
federal jurisdiction on Tribal lands.
29
In line with these views, in the late 1700s and early 1800s,
the United States negotiated distinct treaties with separate Tribal nations, regulated trade
with Tribal nations similarly to the way in which it regulated trade with foreign nations, and
26 The Declaration of Independence, for example, refers to Native peoples as “the merciless Indian Savages, whose known
rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.” the deClaRation oF indePendenCe, para.
2. See also James Duane’s Views on Indian Negotiations (1784), in 18 eaRly ameRiCan indian doCUmentS: tReatieS and lawS,
1607-1789, at 299, 299-300 (Colin G. Calloway ed., 1994) (noting in reference to the Haudenosaunee Confederacy that
former Ideas of Independence”).
27 See, e.g., PommeRSheim, supra note 25; Ablavsky, “With the Indian Tribes”, supra note 25 at 1055 (“Despite the new nation’s
[the United States] repudiation of many British precedents, Anglo-Americans largely adopted prerevolutionary diplomatic
practices, which regarded Native peoples not as an undifferentiated mass of “Indians” but as the polylingual, distinct
polities they actually were.”).
28 Letter from Henry Knox to George Washington (July 7, 1789), in 3 the PaPeRS oF GeoRGe waShinGton: PReSidential SeRieS 134,
138 (Dorothy Twohig ed., 1989).
29 See Ablavsky, “With the Indian Tribes”, supra note 25 at 1038 (describing the letter).
Figure 1. The
Declaration of
Independence
referred to Native
peoples as “merciless
Indian Savages[.]”
6 Voting for Native Peoples: Barriers and Policy Solutions
appointed agents to act as ambassadors to Tribes, representing the interests of the United
States.
30
Articles of Confederation (1777-1789)
The Articles of Confederation, the United States’ rst charter of government, solidied the
structure of the nation-to-nation relationship, treating Native nations as separate—and
potentially adversarial—sovereigns. Specically, the Articles of Confederation (the “Articles”)
prohibited states from waging war without the consent of the U.S. Congress “unless such
State be actually invaded by enemies, or shall have received certain advice of a resolution
being formed by some nation of Indians to invade such State[.]”
31
The Articles further gave the
U.S. Congress “the sole and exclusive right and power of . . . regulating the trade and managing
all affairs with the Indians, not members of any of the states; provided that the legislative right
of any state, within its own limits, be not infringed or violated[.]”
32
In other words, Tribes would remain separate
nations with whom the national government
would regulate trade and other affairs and
against whom the national government—
and potentially the states—could wage
war.
33
Moreover, while the Articles primarily
left decisions regarding citizenship and
30 Ablavsky, “With the Indian Tribes”, supra note 25 at 1055; see also Trade and Intercourse Act of June 23, 1790; Trade and
Intercourse Act of March 1, 1793, Pub. L. No. 2-19, 1 Stat. 329; Philip J. Deloria, American Master Narratives and the Problem
of Indian Citizenship in the Gilded Age and Progressive Era, 14 J. Gilded aGe & PRoGReSSive eRa 3, 9 (2015) (“The political mode
was nation to nation, and indeed, the very idea of Indian polities as sovereign nations (in the European sense) originates in
these treaty relations. The United States made that clear through the Trade and Intercourse Act of 1790, which insisted
that states and private entities could not negotiate treaties: those were legal and political acts that took place between
nations.”).
31 Articles of Confederation of 1781, art. VI, para. 5.
32 Articles of Confederation of 1781, art. IX, para. 4.
33 While the Articles of Confederation formally gave the national government the sole authority to manage affairs with Tribal
nations, relying on the Article IX’s prohibition on Congress “infring[ing] or violat[ing]” the legislative rights of the states,
some states asserted their own perceived authority to entreat with Tribes. See, e.g., W. Tanner Allread, The Specter of
Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law, 123 ColUm. l. Rev. 1533, 1550 (2023)
these disputes were on full display at treaty negotiations with the Cherokee, Chickasaw, Choctaw, and Haudenosaunee in
with Native nations and illegally selling Native land.”); Gregory Ablavsky, The Savage Constitution, 63 dUke L.J. 999, 1018-
33 (2014).
Tribes would remain separate nations with
whom the national government would
regulate trade and other affairs and against
whom the national government—and
potentially the states—could wage war.
PART II: History and the Path to U.S. Citizenship 7
naturalization to the states,
34
these provisions make clear that Native peoples were not a part
of the national union.
35
Tribal nations were not members of the confederation of states, and
individual Native people would not be extended citizenship in the new United States.
36
U.S. Constitution and Early Federal Law (1789-1820s)
In 1789, when the 13 inchoate states abandoned the Articles of
Confederation in favor of the modern U.S. Constitution, the United
States reconsidered its relationship with Native nations, choosing
again to bar Native peoples from participation in the newly formed
union. At its inception, the U.S. Constitution expressly mentioned
Native peoples in two places. It rst considered the political
status of individual Native Americans, excluding Native peoples
from the population for the purposes of apportionment of the U.S. House of Representatives.
Article I, section 2, clause 3 of the U.S. Constitution provides:
Representatives and direct Taxes shall be apportioned among the several
States which may be included within this Union, according to their respective
Numbers, which shall be determined by adding to the whole Number of free
Persons, including those bound to Service for a Term of Years, and excluding
Indians not taxed, three fths of all other Persons.
37
Native Americans thus did not receive representation in the newly formed representative
government.
34 See Torey Dolan, Congress’ Power to Afrm Indian Citizenship through Legislation Protecting Native American Voting Rights,
59 idaho l. Rev. 48, 52 (2023). In Federalist No. 42, James Madison cites the lack of uniformity in the citizenship and
The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as
laying a foundation for intricate and delicate questions.
. . .
The very improper power would still be retained by each State, of naturalizing aliens in every other State.
greater importance are required. An alien, therefore, legally incapacitated for certain rights in the latter,
may, by previous residence only in the former, elude his incapacity; and thus the law of one State be
preposterously rendered paramount to the law of another, within the jurisdiction of the other. We owe it
to mere casualty, that very serious embarrassments on this subject have been hitherto escaped.
. . .
The new Constitution has accordingly, with great propriety, made provision against them, and all others
proceeding from the defect of the Confederation on this head, by authorizing the general government to
establish a uniform rule of naturalization throughout the United States.
the FedeRaliSt no. 42 (James Madison).
35 See Dolan, supra note 34 at 52; BRoken landSCaPeS, supra note 25 at 30.
36 BRoken landSCaPeS, supra note 25 at 30; Dolan, supra
status as noncitizens, owing their allegiance to another sovereign, mainly Indian polities . . . Being an Indian was contrary to
being a citizen.”).
37 U.S. ConSt.
person. See, e.g., Juan F. Perea, Race and Constitutional Law Casebooks: Recognizing the Proslavery Constitution, 110 miCh. l.
Rev. 1123 (2012).
Native Americans thus did
not receive representation
in the newly formed
representative government.
8 Voting for Native Peoples: Barriers and Policy Solutions
The second constitutional reference to Native peoples
considers the regulation of commerce with Tribal nations,
placing their economic status in relation to the federal
government akin to foreign nations and the several states.
38
The Indian Commerce Clause, Article I, section 8, gives
Congress the exclusive authority to “[t]o regulate Commerce
with foreign Nations, and among the several States, and
with the Indian Tribes[.]”
39
This clause recognized Tribal nations as sovereign entities, similar
to states or foreign nations, and “broadly authorized Congress to take the lead on legislative
authority over all aspects of federal, state, and Tribal affairs.”
40
In addition to the U.S. Constitution’s express references to Tribal nations, the Treaty Power
enshrined in Article II, section 2, which gives the President of the United States the “Power, by
and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the
Senators present concur[,]” permits the United States to enter into treaties with Tribal nations
(as well as other foreign nations).
41
Pursuant to this authority, the newly founded federal
government continued the practice that had governed the relationship between Tribal nations
and colonial powers, and later the Union under the Articles of Confederation, and began
entering into treaties with Tribal nations immediately after the Constitution’s ratication.
Between 1778 and the late 1800s, the federal government entered into hundreds of treaties
with Tribal nations, affecting issues such as jurisdictional boundaries, peace and war, water
rights, hunting and shing, and even U.S. citizenship.
42
Professor Matthew Fletcher explains how the Treaty Power governed the United States’
understanding of Tribal nations and the relationships between the sovereigns:
The Treaty Power, and the Indian treaties that arose from the invocation of this
power, further vested powers in the United States, as well as cemented tribal
sovereignty in the new American constitutional system.
43
38 Subsequent caselaw has distinguished Congress’s authority to regulate interstate commerce from its authority
to regulate commerce and affairs with Tribal nations, holding that the latter is far broader. In Haaland v. Brackeen, the
Supreme Court recognized:
We have interpreted the Indian Commerce Clause to reach not only trade, but certain “Indian affairs” too.
Notably, we have declined to treat the Indian Commerce Clause as interchangeable with the Interstate
Commerce Clause. While under the Interstate Commerce Clause, States retain “some authority” over
trade, we have explained that “virtually all authority over Indian commerce and Indian tribes” lies with the
Federal Government.
U.S. 255, 273 (2023) (quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989); Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 62 (1996)).
39 U.S. ConSt. art. I, § 8.
40 See Matthew Fletcher, States and Their American Indian Citizens, 41 am. indian l. Rev. 319, 323 (2017) [hereinafter, “Fletcher,
States and their American Indian Citizens”].
41 U.S. ConSt. art. II, § 2, cl. 2.
42 See Library of Congress, American Indian Law: A Beginner’s Guide: Treaties, https://guides.loc.gov/american-indian-law/
Treaties.
43 See Fletcher, States and Their American Indian Citizens, supra note 40 at 323-24.
The Indian Commerce Clause
recognized Tribal nations as
sovereign entities, similar to
states or foreign nations.
PART II: History and the Path to U.S. Citizenship 9
9
Thus, in the eyes of the newly formed U.S. government, Tribal nations would remain separate
sovereigns with which the United States—and not the several states—would engage in trade
and enter into treaties.
44
The U.S. Constitution and early federal law demonstrate the
founders’ understanding that Native peoples were not part of
“We the People.”
45
Rather, in the early years of the Republic,
U.S. citizenship was only available to white Europeans and
their descendants. The Naturalization Act of 1790, the rst
federal law providing a process for persons not born U.S.
citizens to attain citizenship, exemplies the early, race-
based understanding of U.S. citizenship.
46
The law expressly
restricted naturalization to “free white person[s] . . . of a good character[.]”
47
Native peoples,
Black people (free or enslaved), Pacic Islanders, Asians, and indentured servants were
ineligible to naturalize.
Not incorporated into the United States, Native nations
enjoyed a sovereign status as distinct political entities, akin
to that of a foreign nation.
48
Likewise, Native peoples were
not U.S. citizens, but instead citizens of separate sovereign
nations who were often uninterested in becoming part of the United States polity.
49
During this
period, the federal government operated primarily through a nation-to-nation relationship with
Tribal nations.
50
Indeed, the edgling United States even used its formalized relationships,
including treaties, with Tribal nations to legitimize its standing on the world stage.
Unfortunately, in the years that followed, the relationship between Native nations and the
United States devolved rapidly and considerably. While the United States government
formally interacted with Tribes through a nation-to-nation framework, some ofcials had
44 See Fletcher, Politics, Indian Law, and the Constitution, supra note 24 at 505 (describing the relationship between the
U.S. and Tribal nations at the U.S. founding as “a relationship between domestic nations when Indian tribes entered into
treaties with the United States in which they each agreed to come under the protection of the federal government.”).
45 U.S. ConSt. pmbl.; see also Jean Schroedel and Ryan Hart, Vote Dilution and Supression in Indian Country, 29 StUd. am. Pol.
dev. 1, 5 (2015) (“While these Constitutional provisions make it clear that the Founders did not consider most indigenous
peoples to be under their political jurisdiction, the question . . . about under what circumstances they could become part of
the polity is left unaddressed.”).
46 Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103, 103 (repealed 1795).
47 Id.
48 See Elk v. Wilkins, 112 U.S. 94, 99 (1884) (“The Indian tribes, being within the territorial limits of the United States, were not,
strictly speaking, foreign states; but they were alien nations, distinct political communities, with whom the United States
acts of congress in the ordinary forms of legislation. The members of those tribes owed immediate allegiance to their
several tribes, and were not part of the people of the Unite States.”).
49 See Ablavsky, “With the Indian Tribes”, supra note 25 at 1061 (“[M]ost members of Native communities remained both
nonwhite and noncitizens who had little interest in joining the U.S. polity.”); Rebecca Tsosie, The Politics of Inclusion:
Indigenous Peoples and U.S. Citizenship, 63 UCLA L. Rev. 1692, 1707-08 (2016).
50 See, e.g., Allread, supra note 33 at 1551 (“In particular, the [Washington] Administration recognized Native nations as
sovereigns, departing from states’ claims that these nations were conquered peoples. President George Washington and
Henry Knox, the Secretary of War, formulated a policy that focused on pursuing diplomatic relations—treaties—with the
Native nations, protecting the nations’ rights to land, and instituting ‘civilization’ programs that promoted the adoption of
Euro-American forms of agriculture, education, and the market economy.”).
Tribal nations would remain
separate sovereigns with which
the United States—and not the
several states—would engage
in trade and enter into treaties.
Native peoples were not part of
“We the People.”
10 Voting for Native Peoples: Barriers and Policy Solutions
already begun to implement policies designed to “civilize” Native peoples in an ill-conceived
effort to provide federal protection from state governments and white settlers, with the
expectation that Native peoples would ultimately become assimilated into white American
society.
51
One of the primary early advocates of this strategy was Secretary of War Henry
Knox. In a 1792 letter to Governor William Blount of the Southwest Territory, Knox argued:
The Indians have constantly had their jealousies and hatred excited by
the attempts to obtain their lands—I hope in God that all such designs are
suspended for a long period—We may therefore now speak to them with the
condence of men conscious of the fairest motives towards their happiness
and interest in all respects—A little perseverance in such a system will teach
the Indians to love and reverence the power which protects and cherishes
them. The reproach which our country has sustained will be obliterated and
the protection of the helpless ignorant Indians, while they demean themselves
peaceably, will adorn the character of the United States.
52
As the U.S. population grew and its military strengthened, so did its desire for more land. As
Professor Frank Pommersheim puts it, by the early 1800s, “[t]he opportunity for Indians and
non-Indians to live parallel lives was rapidly evaporating into a historical mist that itself would
soon be forgotten.”
53
Removal and Relocation Period (1820s-1887)
Stories of Removal
By the early-to-mid-nineteenth century, the federal government, led by President Andrew
Jackson and with signicant pressure from state ofcials, came to view Native nations and
51 See Ablavsky, “With the Indian Tribes”, supra
that portrayed Indians as objects of pity rather than as equals.”); Allread, supra note 33 at 1551-52.
52 Letter from Henry Knox, U.S. Sec’y of War, to William Blount, Governor, Sw. Territory (Apr. 22, 1792); see also Letter from
Henry Knox to George Washington, supra note 28. In the same 1789 letter that Knox advocated to President Washington
for the treatment of Tribes as foreign nations, Knox opined:
had imparted our Knowledge of cultivation, and the arts, to the Aboriginals of the Country by which the
source of future life and happiness had been preserved and extended. But it has been conceived to be
impracticable to civilize the Indians of North America—This opinion is probably more convenient than Just.
the highest knowledge of the human character, and a steady perseverance in a wise system for a series
of years cannot be doubted—But to deny that under a course of favorable circumstances it could not be
incapable of melioration or change a supposition entirely contradicted by the progress of society from the
barbarous ages to its present degree of perfection.
Id.
53 BRoken landSCaPeS, supra note 25 at 19.
PART II: History and the Path to U.S. Citizenship 11
Tribal citizens as the primary obstacle to the United
States’ territorial expansion.
54
The nation-to-nation
relationship was no longer serving the interests of
the federal government. Instead, to remedy what
would come to be known as the “Indian problem,”
55
the
federal government commenced a concerted effort to
eradicate the eastern seaboard of Native peoples in
order to free the land for white settlers.
From the 1820s through 1887—the “Removal and Relocation Period”—the federal government
forced Tribal nations, militarily and through unfair and often coerced or misunderstood
treaties, out of their ancestral homelands and onto reservations a fraction of the size.
Thousands of Native peoples died during the Removal and Relocation Period as a direct result
of federal policy, due to starvation, disease, and lack of shelter. The loss of life and homelands
radically and permanently altered the relationship between Tribal nations and the federal
government. This history continues to shape the contemporary relationships between Tribal
nations and federal, state, and local governments.
56
In 1830, at the encouragement of President Andrew Jackson, Congress enacted the rst
federal law in furtherance of the removal policy, the Indian Removal Act of 1830. The act,
which “provide[d] for an exchange of lands with the Indians residing in any of the states or
territories, and for their removal west of the river Mississippi,”
57
created the legal authority
for the federal government’s ethnic cleansing of the Native peoples living along the eastern
seaboard whose homelands were highly sought after by white settlers. Once displaced, Native
peoples would be forcibly relocated to lands west of the Mississippi River that would become
known as “Indian Territory.” While the Indian Removal Act plainly subjected Native peoples to
additional authority by the federal government, the law itself conveyed no additional rights to
Native peoples nor did it grant them U.S. citizenship.
58
Once the law was enacted, Jackson and his administration quickly set about negotiating
treaties with Tribal nations for their relocation to Indian Territory. Jackson’s disgust for the
Native peoples his administration displaced is clear from the annual message he delivered to
Congress on December 6, 1830:
54 See Indian Treaties and the Removal Act of 1830, https://history.state.gov/
milestones/1830-1860/indian-treaties (“As the nineteenth century began, land-hungry Americans poured into the
backcountry of the coastal South and began moving toward and into what would later become the states of Alabama
and Mississippi. Since Indian tribes living there appeared to be the main obstacle to westward expansion, white settlers
petitioned the federal government to remove them.”); Library of Congress, Immigration and Relocation in U.S. History:
Removing Native Americans from their Land, https://www.loc.gov/classroom-materials/immigration/native-american/
removing-native-americans-from-their-land/; Allread, supra note 33 at 1152.
55 See, e.g., The Indian Problem, ny timeS (Mar. 2, 1879), https://www.nytimes.com/1879/03/02/archives/the-indian-problem.
html; Ray A. Brown, The Indian Problem and the Law, 39 yale l. J. 307 (1930).
56 See, e.g., Katie Smith and Courtney Parker, Song about the Departure of Seminole Indians from Florida for Oklahoma (1892),
.
57 Indian Removal Act of 1830, Pub L. 21-148, 4 Stat. 411 (1830).
58 See id.
The federal government viewed
Native nations and Tribal citizens as
the primary obstacle to the United
States’ territorial expansion.
12 Voting for Native Peoples: Barriers and Policy Solutions
It gives me pleasure to announce to Congress that the benevolent policy
of the Government, steadily pursued for nearly thirty years, in relation to the
removal of the Indians beyond the white settlements is approaching to a happy
consummation.
. . .
The consequences of a speedy removal will be important to the United States,
to individual States, and to the Indians themselves. . . It will place a dense and
civilized population in large tracts of country now occupied by a few savage
hunters. By opening the whole territory between Tennessee on the north
and Louisiana on the south to the settlement of the whites it will incalculably
strengthen the southwestern frontier and render the adjacent States strong
enough to repel future invasions without remote aid. It will relieve the whole
State of Mississippi and the western part of Alabama of Indian occupancy, and
enable those States to advance rapidly in population, wealth, and power. It will
separate the Indians from immediate contact with settlements of whites; free
them from the power of the States; enable them to pursue happiness in their
own way and under their own rude institutions; will retard the progress of decay,
which is lessening their numbers, and perhaps cause them gradually, under the
protection of the Government and through the inuence of good counsels, to
cast off their savage habits and become an interesting, civilized, and Christian
community.
What good man would prefer a country covered with forests and ranged by a
few thousand savages to our extensive Republic, studded with cities, towns,
and prosperous farms embellished with all the improvements which art can
devise or industry execute, occupied by more than 12,000,000 happy people,
and lled with all the blessings of liberty, civilization and religion?
59
Despite a erce resistance by many Tribal nations,
60
removal was remarkably successful in
eradicating Native peoples from the southeastern United States. This is in part because when
Native peoples did not leave their homelands willingly, Jackson sent troops to force their
displacement, killing many along the way.
61
For instance, when many Cherokee resisted their
removal that was ordered in the 1836 Treaty of New Echota,
62
Jackson sent Major General
59 Andrew Jackson, Message to Congress on Indian Removal (Dec. 6, 1830), https://catalog.archives.gov/id/5682743.
60 See Protest Petition from Cherokee Nation to the U.S. Government (1836), https://americanindian.si.edu/nk360/removal-
cherokee/resisting-removal.html.
61 Library of Congress, supra note 54.
62 Treaty of New Echota, Dec. 29, 1835, 7 Stat. 478. The Treaty of New Echota also guaranteed the Cherokee Nation a
Id. Art. IX (“The Cherokee nation
. . . should be offered to their people to improve their condition as well as to guard and secure in the most effectual manner
the rights guaranteed to them in this treaty, and with a view to illustrate the liberal and enlarged policy of the Government
of the United States towards the Indians in their removal beyond the territorial limits of the States, it is stipulated that
they shall be entitled to a delegate in the House of Representatives of the United States whenever Congress shall make
provision for the same.”). In 2022, the House Committee on Rules held a hearing on the legal and procedural issues with
sending a Cherokee delegate to Congress. See Legal and Procedural Factors Related to Seating a Cherokee Nation Delegate
in the U.S. House of Representatives, Hearing Before Committee on Rules, 117th Cong. (Nov. 16, 2022).
PART II: History and the Path to U.S. Citizenship 13
Wineld Scott along with 3,000 federal troops and the authority to raise additional state militia
and volunteer troops to eradicate Tribal members from Georgia, North Carolina, Tennessee,
and Alabama. In 1838, the military “entered the [Cherokee] territory and forcibly relocated
the Cherokees, some hunting, imprisoning, assaulting, and murdering Cherokees during the
process.”
63
In the fall and winter of 1838 to 1839, on what is now known as the “Trail of Tears,”
an estimated 16,000 Cherokee citizens who survived the onslaught were forced to walk more
than 1,000 miles in harsh conditions to the lands that had been set aside for them in Indian
Territor y.
64
As many as 4,000 Cherokee people died along the way of starvation, exhaustion,
and disease caused by the brutal conditions they were forced to travel in.
65
Other Tribal nations, including the Chickasaw, Choctaw, Creek, Seminoles, and Potawatomi,
amongst others, were similarly forced out of their homelands through actions authorized
under the Indian Removal Act. Tribal nations were also split up into bands as a result of the
Indian Removal Act, with some families resisting removal and remaining in their homelands
and others being relocated.
66
By the end of Jackson’s presidency, he had signed into law nearly
70 treaties under the Indian Removal Act, resulting in the forced relocation of nearly 50,000
people belonging to Tribal nations located along the East Coast.
67
The displaced Tribes lost an
estimated 25 million acres of rich homelands that were quickly opened to white settlers.
68
In 1851, Congress further cemented the federal government’s forced relocation policy with
the passage of the Indian Appropriations Act of 1851, which formalized the reservation system
intended to further subdue Native nations.
69
The act appropriated funding for the federal
government to relocate Tribes to small parcels of land, known as “reservations,” where they
would, in theory, be left to self-govern with support from the federal government.
70
In practice,
Native peoples were involuntarily conned to their reservations, which were often far from
and almost always a fraction of the size of their ancestral homelands.
71
On reservations, the
traditional land and wildlife harvesting practices that Native peoples had used for sustenance
and cultural and religious well-being since time immemorial were severely restricted.
By the 1860s, the forced removal policy had extended well into the West, with the U.S. Army
and private militia acting on the Army’s orders perpetrating countless brutal attacks on Native
63 supra note 54.
64 Id.
65 Id.
66 Some Cherokee peoples remained hiding in North Carolina, evading removal. Likewise, some Potawatomi families
successfully remained in the North while others were removed. This in part explains why some Tribes have numerous
bands in distant parts of the United States.
67 supra note 54; National Archives, President Andrew Jackson’s Message to Congress ‘On Indian
Removal’ (1830), reviewed May 10, 2022, https://www.archives.gov/milestone-documents/jacksons-message-to-
congress-on-indian-removal.
68 Id.
69 Indian Appropriations Act of 1851, Pub. L. 31-14 (1851).
70 Id.; see also Nat’l Inst. Health, Nat’l Libr. Med., 1851: Congress Creates Reservations to Manage Native Peoples, https://
www.nlm.nih.gov/nativevoices/timeline/317.html#:~:text=The%20U.S.%20Congress%20passes%twentiethe,and%20
gather%twentietheir%20traditional%20foods (last accessed Apr. 21, 2024).
71 See Sarah K. Elliott, How American Indian Reservations Came to Be, PBS (May 25, 2015, updated Oct. 18, 2016), https://www.
pbs.org/wgbh/roadshow/stories/articles/2015/5/25/how-american-indian-reservations-came-be.
14 Voting for Native Peoples: Barriers and Policy Solutions
peoples in an effort to drive them from their homelands. For example, in 1862, U.S. Army
General James Carlton declared in orders to a militia leader, “All Indian men of that [Mescalero
Apache] tribe are to be killed whenever and wherever you can nd them.”
72
In 1863, General
Carlton shifted his focus to the Diné (Navajo), declaring “open season” on the Diné and
setting off a campaign of destruction designed to open Diné bikéyah (Navajo lands) to white
settlement and mining.
73
Carlton ordered Indian agent and U.S. army ofcer Christopher
Houston (Kit) Carson to conduct a “scorched-earth” campaign to burn homes, break up
families, slaughter livestock, destroy water sources, and starve Diné of their resources.
74
The
next year, the U.S. Army drove more than 10,000 Diné, along with about 500 members of the
Mescalaro Apache Tribe, out of their homelands on a 450 mile walk to their forced internment
on the Bosque Redondo Reservation.
75
As many as one in four Diné and Apache people were
killed along the way, primarily due to starvation, dehydration, and exposure.
76
The survivors
were interned on the Bosque Redondo Reservation in harsh conditions for the next ve years,
resulting in countless deaths as well as illness and starvation.
77
Nearby in Sand Creek, Colorado, in 1864, a Colorado volunteer army led by U.S. Army Colonel
John Chivington opened re on lodges of Cheyenne and Arapaho civilians, primarily women,
children, and elderly persons, who had settled in an encampment in Sandy Creek at the
direction and under the expected protection of the U.S. Military while awaiting relocation to
Fort Lyon.
78
The soldiers brutally slaughtered more than 230 innocent civilians during the
eight-hour massacre and afterward spent hours mutilating and committing other atrocities on
the dead.
79
In the late 1800s, the federal government also waged a war against the Tribal nations of the
Great Plains in an effort to take their lands after white settlers learned of gold deposits in
the sacred Pahá Sápa (Black Hills). In the late 1860s and early 1870s, the federal government
attempted to starve Native peoples of the Great Plains by encouraging mass killing of buffalo,
72 Frank D. Reeve, The Federal Indian Policy in New Mexico, 1858-1880, IV, 13:3 n.m. hiSt. Rev. 261 (1938).
73 daniel mCCool, SUSan m. olSon & JenniFeR l. RoBinSon, native vote: ameRiCan indianS, the votinG RiGhtS aCt, and the RiGht to vote
92 (2007).
74 Nat’l Museum Am. Indian, Native Knowledge 360: The Long Walk, https://americanindian.si.edu/nk360/navajo/long-walk/
long-walk.cshtml (last visited Apr. 21, 2024) [hereinafter “NMAI, The Long Walk”]; nat’l PaRk SeRv., hUBBell tRadinG PoSt: the
lonG walk, http://npshistory.com/brochures/hutr/long-walk.pdf.
75 See, e.g., Jennifer Davis, Naaltsos Sání and the Long Walk Home, liBRaRy oF ConGReSS (June 18, 2018), https://blogs.loc.gov/
law/2018/06/naaltsoos-sn-and-the-long-walk-home/ (last visited Apr. 21, 2024); diné oF the eaSteRn ReGion oF the navaJo
ReSeRvation, oRal hiStoRy StoRieS oF the lonG walk: hwéeldi Baa hané (stories collected and recorded by Title VII Bilingual
Staff Patty Chee, Milanda Yazzie, Judy Benally, Marie Etsitty, and Bessie C. Henderson; Lake Valley Navajo School pub.,
1991) [hereinafter “oRal hiStoRieS oF the lonG walk”]; James Carleton to Thompson, September 19, 1863, in Navajo Roundup:
Selected Correspondence of Kit Carson’s Expedition against the Navajo, 1863-1865, ed. Lawrence C. Kelly (Boulder, CO:
Pruett Publishing, 1970), 56-57; NMAI, The Long Walk, supra note 74.
76 Davis, supra note 75.
77 Id.
78 Nat’l Park Serv., Sand Creek Massacre: History & Culture, https://www.nps.gov/sand/learn/historyculture/index.htm (last
visited Apr. 21, 2024); Nat’l Park Serv., Sand Creek Massacre: The Life of Silas Soule, https://www.nps.gov/sand/learn/
historyculture/the-life-of-silas-soule.htm (last visited Apr. 21, 2024); Nat’l Park Serv., Sand Creek Massacre: Joseph Cramer
Biography, https://www.nps.gov/sand/learn/historyculture/joseph-cramer-biography.htm (last visited Apr. 21, 2024).
79 See id.
PART II: History and the Path to U.S. Citizenship 15
their primary protein source.
80
In 1868, Major General Phillip Sheridan described the plan to
General William Tecumseh Sherman: the U.S. Army would “make them poor by the destruction
of their stock, and then settle them on the lands allotted to them.”
81
General Grenville Mellen
Dodge famously said of the plan, “Kill every buffalo you can! Every buffalo dead is an Indian
gone[.]”
82
That winter, General Sheridan led a campaign against the Cheyenne peoples. U.S.
Army soldiers destroyed their food, shelter, and livestock with “overwhelming force.” In a
dawn raid during a snowstorm in November 1868, Sheridan commanded U.S. Army Lieutenant
Colonel George Armstrong Custer and his 700 troops to “destroy [Cheyenne] villages and
ponies, to kill or hang all warriors, and to bring back all women and children.”
83
The U.S. Army
killed at least 100 Cheyenne people during that attack.
84
In 1874, the federal government amplied its efforts to take control of the Black Hills when
Custer led an expedition of 1,000 U.S. Army soldiers to conrm the presence of gold in the
region.
85
Shortly after, white settlers, with the blessing of the U.S. government, ooded the
lands of the Great Sioux Reservation that had been set aside in the Treaty of Fort Laramie
86
for the exclusive use of the Očhéthi Šakówiŋ (Sioux Nation).
87
By 1876, the federal government
had begun a full scale assault on the Očhéthi Šakówiŋ peoples, attempting to force them
onto much smaller reservations and treating those who refused as “hostiles.”
88
That August,
Congress enacted legislation providing that the Očhéthi Šakówiŋ would receive no funding
for subsistence unless they ceded the sacred Black Hills.
89
The following year, Congress
abrogated the Treaty of Fort Laramie, formalizing the federal government’s cessation of the
Black Hills, and establishing disconnected reservations a fraction of the size of the Great
Sioux Reservation on which the nations of the Očhéthi Šakówiŋ would be conned.
90
In 1980,
the United States Supreme Court recognized the federal government’s actions as a “taking of
tribal property, property which had been set aside for the exclusive occupation of the Sioux by
the Fort Laramie Treaty of 1868” that “implied an obligation on the part of the Government to
make just compensation to the Sioux Nation[.]”
91
80 See, e.g., J. Weston Phippen, ‘Kill Every Buffalo You Can! Every Buffalo Dead Is an Indian Gone’, atlantiC (May 13, 2016),
https://www.theatlantic.com/national/archive/2016/05/the-buffalo-killers/482349/.
81 Id.
82 Native Philanthropy, Investing in Native Communities: Annihilation of Buffalo by Military and Hunters, https://
nativephilanthropy.candid.org/events/annihilation-of-buffalo-by-military-and-hunters/ (last accessed Apr. 21, 2024).
83 Gilbert King, Where the Buffalo No Longer Roamed, SmithSonian maGazine (Jul. 17, 2012), https://www.smithsonianmag.com/
history/where-the-buffalo-no-longer-roamed-3067904/.
84 Id.
85 United States v. Sioux Nation of Indians, 448 U.S. 371, 377-79 (1980).
86 Fort Laramie Treaty of April 29, 1868, 15 Stat. 635.
87 United States v. Sioux Nation of Indians, 448 U.S. at 377-81; Nat’l Park Serv., Theodore Roosevelt: The U.S. Army and the
Sioux, https://www.nps.gov/thro/learn/historyculture/the-us-army-and-the-sioux-part-3.htm (last visited Apr. 21, 2024).
88 United States v. Sioux Nation of Indians, 448 U.S. at 379.
89 Act of Aug. 15, 1876, 19 Stat. 176, 192.
90 United States v. Sioux Nation of Indians, 448 U.S. at 381-83.
91 United States v. Sioux Nation of Indians, 448 U.S. at 424.
16 Voting for Native Peoples: Barriers and Policy Solutions
These stories of forced removal exemplify the federal government’s policy toward Native
peoples in during the Removal and Relocation Period.
Talks of Citizenship
Throughout the nineteenth century, state citizenship for Native peoples and U.S. citizenship
for Native peoples operated on separate tracks.
92
Even when the Native peoples were largely
excluded from U.S. citizenship, some states chose to convey state citizenship.
93
However,
state citizenship was often highly entangled with race, or more specically whiteness. To
become a state citizen, a Native person generally needed to “prove that they were ‘civilized,’
or had ‘abandoned’ their tribal relations by declaring loyalty to the state or the United States,
relinquishing their treaty rights, paying state taxes, adopting the habits and customs of white
men, or some combination of all of these factors.”
94
The rst formal grants of U.S. citizenship to Native peoples were made in treaties entered
between Native nations and the United States.
95
While these treaties were the direct result of
Tribal governments advocating for the civil rights of their citizens, they generally conveyed U.S.
citizenship to Native peoples only in exchange for some concession of jurisdiction or lands by the
Tribe to the federal government. For example, the 1848 Treaty with the Stockbridge Tribe linked
U.S. citizenship with privatization of Tribal lands.
96
The 1855 Treaty with the Wyandot subjected
the Tribe to the jurisdiction of the Kansas territory.
97
The 1862 Treaty with the Kickapoo was
linked with railroad development through Tribal lands in the West.
98
Through these treaties, the
federal government began its project of using U.S. citizenship as a tool of assimilating Native
peoples into broader U.S. society, whether or not the individual citizen consented.
By the late 1860s, the views of the Nation and the
federal government on citizenship for nonwhite
residents of the United States had begun to shift.
During the post-Civil War Reconstruction Era, as
Congress considered legislation and constitutional
amendments to extend U.S. citizenship and the
92 See Fletcher, States and their American Indian Citizens, supra note 40 at 327.
93 See id.
94 Id. (citing United States v. Elm, 25 F. Cas. 1006, 1007 (N.D. N.Y. 1877) (“If defendant’s tribe continued to maintain its tribal
integrity, and he continued to recognize his tribal relations, his status as a citizen would not be affected by the fourteenth
amendment; but such is not his case. His tribe has ceased to maintain its tribal integrity, and he has abandoned his tribal
relations, as will hereafter appear. . . .”); Anderson v. Mathews, 163 P. 902, 906 (Cal. 1917) (“Neither the members of the
group nor, so far as known, the members of the tribe, were subject to, or owed allegiance to, any government, except
that of the United States and the state of California, and, prior to 1848, that of Mexico.”); Bd. of Comm’rs of Miami County
v. Godfrey, 60 N.E. 177, 180 (Ind. App. 1901) (“So long as he remained an Indian, he was under the control of the United
States as an Indian. But he voluntarily does what the law says makes him a citizen. This change of his tribal condition into
individual citizenship was primarily his own voluntary act. He cannot be both an Indian, properly so called, and a citizen.”)).
95 See Treaty with Stockbridge Tribe, art. IV, Stockbridge-U.S., Nov. 24, 1848, 9 Stat. 955; Treaty with the Wyandot, art. I,
Wyandot-U.S., Jan. 31, 1855, 10 Stat. 1159; Treaty with the Kickapoo, Kickapoo-U.S. June 28, 1862; Elk v. Wilkins, 112 U.S. 94,
100 (1884).
96 Treaty with Stockbridge Tribe, art. IV, Stockbridge-U.S., Nov. 24, 1848, 9 Stat. 955.
97 Treaty with the Wyandot, art. I, Wyandot-U.S., Jan. 31, 1855, 10 Stat. 1159.
98 Treaty with the Kickapoo, Kickapoo-U.S. June 28, 1862.
The rst formal grants of U.S. citizenship
to Native peoples were made in treaties
entered between Native nations and the
United States.
PART II: History and the Path to U.S. Citizenship 17
right to vote to Black Americans, Congress was also
forced to directly confront the question of whether to
grant U.S. citizenship to Native Americans.
Congress rst took up the issue of whether to convey
U.S. citizenship to all Native peoples in the Civil Rights
Act of 1866, which extended U.S. citizenship to “all
persons born in the United States and not subject
to any foreign power” except “Indians not taxed.”
99
While this restriction excluded most Native peoples, it
would have extended U.S. citizenship to any Native peoples subject to state or federal taxation
by, for example, privately owning land outside of a reservation.
100
President Andrew Johnson quickly vetoed the bill because it would have extended U.S.
citizenship to peoples he considered unt, including some Native peoples.
101
And while
Congress successfully overrode the President’s veto and enacted the Civil Rights Act of 1866
into law, President Johnson’s veto message is exemplary of a widespread understanding at
the time that U.S. citizenship should be reserved for white Americans. According to President
Johnson:
This provision comprehends Indians subject to taxation [and other disfavored
races, including Black Americans] . . . Every individual of these races born in the
United States is by the bill made a citizen of the United States.
Johnson then questions whether it is “sound policy” for Congress to convey citizenship to
those he considers unworthy because of their race and concludes:
102
[T]he policy of the Government from its origin to the present time seems to have
been that persons who are strangers to and unfamiliar with our institutions and
our laws should pass through a certain probation, at the end of which, before
attaining the coveted prize, they must give evidence of their tness to receive
and to exercise the rights of citizens as contemplated by the Constitution of the
United States.
103
Following some doubt by proponents of birthright citizenship that Congress had the authority
to grant it through statute, an effort to extend birthright citizenship as a constitutional
right commenced shortly after. In 1868, Congress and the states adopted the Fourteenth
Amendment to the United States Constitution, which provides in relevant part:
99 Civil Rights Act of 1866.
100 Id.; Dolan supra note 34 at 34; Andrew Johnson, Veto Message on Civil Rights Legislation to the United States Senate (Mar.
27, 1866), https://millercenter.org/the-presidency/presidential-speeches/march-27-1866-veto-message-civil-rights-
legislation [hereinafter “Johnson, Veto Message”]; Cong. Globe, 39th Congress, 1st Sess. 527 (1866).
101 See Johnson, Veto Message, supra note 100.
102 Id.
103 Id.
Through these treaties, the federal
government began its project of using
U.S. citizenship as a tool of assimilating
Native peoples into broader U.S.
society, whether or not the individual
citizen consented.
18 Voting for Native Peoples: Barriers and Policy Solutions
All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein
they reside.
104
Later, the Fourteenth Amendment excludes “Indians not taxed” from the population count for
the purposes of apportioning seats in the U.S. House of Representatives.
105
While Congress likely intended to exclude Native peoples from the Fourteenth Amendment’s
grant of birthright citizenship, there was little consensus about the clause’s true meaning
at the time of its passage. Some members of the 39th and 40th congresses believed the
requirement that a recipient of birthright citizenship must be “subject to the jurisdiction” of
the United States would prevent citizenship from being extended to Native peoples,
106
while
others sought to add additional restrictions to ensure Native Americans would not be granted
citizenship through the amendment.
107
Opponents of birthright citizenship for Native peoples
fell into several categories. Some supporters of Tribal nations believed that U.S. citizenship
was contrary to Tribal sovereignty and would erode the nation-to-nation relationship with
the federal government.
108
Others expressed the racist sentiment that Native peoples were
“uncivilized” and therefore unworthy of U.S. citizenship.
109
Senator James Doolittle of Wisconsin, who sought to add language barring “Indians not taxed”
from becoming U.S. citizens by birthright, exemplies the latter camp:
I moved this amendment because it seems to me very clear that there is a large
mass of the Indian population who are clearly subject to the jurisdiction of the
United States who ought not to be included as citizens of the United States. All
the Indians upon reservations within the several States are most clearly subject
to tour jurisdiction, both civil and military.
. . .
Go into the State of Kansas, and you nd there are any number or reservation,
Indians in all stages, from the wild Indian of the plains, who lives on nothing
but the meat of the buffalo, to those Indians who are partially civilized and
have partially adopted the habits of civilized life. So it is in other States. In my
own State there are Chippewas, the remnants of the Winnebagoes, and the
Pottawatomies [sic]. There are tribes in the State of Minnesota and other States
of the Union. Are these persons to be regarded as citizens of the United States,
104 U.S. ConSt. amend XIV, § 1.
105 U.S. ConSt. amend. XIV, § 2.
106 ConG. GloBe, 39th Cong., 1st Sess. 2893 (1866) (Senator Trumbull noting, “It cannot be said of any Indian who owes
allegiance, partial allegiance if you please, to some other Government that he is ‘subject to the jurisdiction of the United
States.’”).
107 ConG. GloBe, 39th Cong., 1st Sess. 2892-93 (1866) (Senator Doolittle).
108 See Bethany Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, 37 CaRdozo l. Rev. 1185
(2016).
109 See Dolan, supra note 34 at 34.
PART II: History and the Path to U.S. Citizenship 19
and by a constitutional amendment declared to be such, because they are born
within the United States and subject to our jurisdiction?
Mr. President, the word “citizen,” if applied to them, would bring in all the Digger
Indians of California. Perhaps they have mostly disappeared; the people of
California, perhaps, have put them out of the way; but there are the Indians of
Oregon and the Indians of the Territories. Take Colorado; there are more Indian
citizens of Colorado than there are white citizens this moment if you admit it as
a state. And yet by a constitutional amendment you propose to declare the
Utes, the Tabahuaches, and all those wild Indians to be citizens of the United
States, the great Republic of the world, whose citizenship should be a title
as proud as that of a king, and whose danger is that you may degrade that
citizenship.
110
Some reporting suggests that this choice was made out of respect for the sovereignty of
Native nations as separate from the United States,
111
but the actions of the federal government
at the time tell a different story. At the same time Congress was blocking Native Americans
from becoming U.S. citizens through the Fourteenth Amendment, the federal government,
through its relocation and removal policies, was actively trying to strip away the ability of
Native nations to exist as sovereigns and provide for their citizens. Indeed, even lawmakers
advocating on behalf of Native nations often failed to fully appreciate their sovereignty.
112
Elk v. Wilkins
In 1884, the United States Supreme Court directly confronted the issue of whether the
Fourteenth Amendment’s promise of citizenship to “all persons born or naturalized in the
United States” would extend to Native peoples.
113
The Plaintiff John Elk, a member of the
110 ConG. GloBe, 39th Cong., 1st Sess. 2892-93 (1866). The opponents to granting the right to vote to Native peoples under
the Fifteenth Amendment were similarly vitriolic. During the debate in the U.S. House of Representatives, Congressman
Charles A. Eldredge of Wisconsin expressed his staunch opposition to the Fifteenth Amendment because of its application
to people of color:
If the . . . the wild Indian [and other disfavored races] are to become a ruling element in this country, then call your
ministers from abroad, bring your missionaries home, tear down your school-houses, convert your churches into
dens and brothels, wherein our young may receive fatal lessons to end in rotting bones, decaying and putrid
ConG. GloBe, 41st Cong., 2nd Sess. 756 (1870).
111 See Berger, supra note 108.
112 See 6 Cong. Rec. 551-53 (1887). In a debate about whether to extend U.S. citizenship to Native peoples in 1877, Senator
Allen G. Thurman of Ohio, who purported to be advocating on behalf of Native peoples’ interests opined:
I do not say the time may not come [to extend U.S. citizenship to Native peoples], I do not say that it is not desirable
that it should come, when what shall be left of the Indians shall be civilized enough to become citizens of the
United States and be absorbed in the great body of our population. As to most of them I have no such hope. They
stand a savage race, the most energetic and remorseless race that ever knew civilization; and history teaches us
but one lesson in such a condition of things, and that is that the savage race becomes extinct. Extinction is just as
certain in reference of this race as the revolution of this globe on its axis. It is only a question of time. But I grant
that while they do exist we are bound by every principle of honor and philanthropy and common mercy to treat
them with as much kindness as we possibly can; and I do think that above all things we are bound to keep our
solemn treaties with them so long as they deserve to be kept.
Id.
113 Elk v. Wilkins, 112 U.S. 94 (1884).
20 Voting for Native Peoples: Barriers and Policy Solutions
Winnebago Tribe, born in Iowa and living in Nebraska,
114
attempted to register to vote in Omaha,
Nebraska.
115
Despite being “in every way qualied, under the laws of the state of Nebraska and
of the city of Omaha, to be registered as a voter, and to cast a vote at said election,” Mr. Elk’s
voter registration and ballot were rejected because he was Native American and therefore,
according to the registrar, not a U.S. citizen.
116
Mr. Elk challenged the denial. He argued
because he was a resident of Nebraska, who had severed his relations to his Tribe and “fully
and completely surrendered himself to the jurisdiction of the United States,” he should be
considered a U.S. citizen under the Fourteenth Amendment.
117
The court held that Native people were not made U.S. citizens by the Fourteenth Amendment. It
noted that the Constitution “contemplates two sources of citizenship: birth and naturalization.”
118
Moreover, “[p]ersons not thus subject to the jurisdiction of the United States at the time of birth
cannot become so afterwards, except by being naturalized, either individually, as by proceedings
under the naturalization acts; or collectively, as by the force of a treaty by which a foreign
territory is acquired.”
119
Because Mr. Elk had not become naturalized by treaty or a naturalization
statute passed by Congress, the only way he could be considered a citizen would be by birth.
The Court reasoned that the Fourteenth Amendment only grants citizenship to individuals who
at the time of their birth are “completely subject to [the United States’] political jurisdiction and
owing them direct and immediate allegiance.”
120
The court further opined:
Indians born within the territorial limits of the United States, members of,
and owing immediate allegiance to, one of the Indian tribes, (an alien though
dependent power,) although in a geographical sense born in the United States,
are no more ‘born in the United States and subject to the jurisdiction thereof,’
within the meaning of the rst section of the fourteenth amendment than the
children of subjects of any foreign government born within the domain of that
government, or the children born within the United States, of ambassadors or
other public ministers of foreign nations. This view is conrmed by the second
section of the fourteenth amendment, which provides that ‘representatives
shall be apportioned among the several states according to their respective
numbers, counting the whole number of persons in each state, excluding
Indians not taxed.’
121
Though the majority purports to engage in a textualist reading of the Fourteenth Amendment,
the Court’s ruminations later in the opinion reveal the same racist undertones that drove many
of the contemporaneous objections to U.S. citizenship for Native peoples. In the eyes of the
114 Bethany Berger, Birthright Citizenship on Trial: Elk v. Wilkins and United States v. Wong Kim Ark, 37 CaRdozo l. Rev 1185,
1215 (2016).
115 Elk, 12 U.S. at 95-96.
116 Id.
117 Elk, 112 U.S. at 98.
118 Id. at 101.
119 Id. at 102.
120 Id. at 102.
121 Id.
PART II: History and the Path to U.S. Citizenship 21
majority, it was yet to be seen whether Native peoples had proven themselves worthy of U.S.
citizenship:
The national legislation has tended more and more towards the education and
civilization of the Indians, and tting them to be citizens. But the question
whether any Indian tribes, or any members thereof, have become so far
advanced in civilization that they should be let out of the state of pupilage,
and admitted to the privileges and responsibilities of citizenship, is a
question to be decided by the nation whose wards they are and whose
citizens they seek to become, and not by each Indian for himself.
122
In a convincing dissent, Justice John Marshall Harlan
123
demonstrates the majority’s poor
attention to the meaning of the Fourteenth Amendment. As Justice Harlan points out, “it was
distinctly announced by the friends of the amendment that they intended to include in the
grant of national citizenship Indians who were within the jurisdiction of the states, and subject
to their laws, because such Indians would be completely under the jurisdiction of the United
States.”
124
Based on the legislative history of the Fourteenth Amendment as well as the rights
guaranteed by the contemporaneous Civil Rights Act of 1866, Harlan reasons that this would
include any Native peoples who no longer lived on Tribal lands or had connections with their
Tribes, including those subject to taxes.
125
Justice Harlan also points out the decision’s inconsistency with prior Supreme Court
precedent. Just over 50 years before it decided Elk, the Supreme Court held in Cherokee
Nation v. Georgia that Tribes should be considered “domestic dependent nations” subject (with
or without their consent) to the authority and purported protection of the United States.
126
In
Harlan’s view, had the Court followed Cherokee Nation v. Georgia’s reasoning, it should have
reached the conclusion that Mr. Elk was indeed subject to the jurisdiction of the United States
because:
[T]he tribe of which the parents of plaintiff were members was not “a foreign
state, in the sense of the constitution,” but a domestic dependent people, “in a
state of pupilage,” and “so completely under the sovereignty and dominion of
the United States, that any attempt to acquire their lands, or to form a political
connection with them, would be considered an invasion of our territory and an
act of hostility.”
127
122 Id. at 106-07.
123 Justice Harlan is perhaps better known for authoring the lone dissent in Plessy v. Ferguson, the case in which the
Supreme Court announced the infamous rule permitting public establishments to require people of color to use separate
accommodations from white customers. Justice Harlan forcefully argued, “in view of the constitution, in the eye of the
law, there is in this country no superior, dominant, ruling class of citizens . . . In respect of civil rights, all citizens are equal
before the law.” Plessy v. Ferguson, 163 U.S. 537, 559, (1896), overruled by Brown v. Bd. of Ed. of Topeka, Shawnee Cnty.,
Kan., 347 U.S. 483 (1954) (Harlan, J. dissenting).
124 Elk, 112 U.S. at 117 (Harlan, J. dissenting).
125 Id. at 112-21 (Harlan, J. dissenting).
126 Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831).
127 Elk, 112 U.S at 121-22 (Harlan, J. dissenting) (quoting Cherokee Nation, 30 U.S. at 17-18).
22 Voting for Native Peoples: Barriers and Policy Solutions
The Court’s hypocrisy meant that Native peoples would be subjected to the authority of
the United States when it would allow the federal government to exercise greater authority
over Tribal nations and within Indian Country. But Native Americans would not be considered
“subject to the jurisdiction” of the United States when that jurisdiction came with the promise
of civil rights.
128
To Justice Harlan, the deleterious effect of the decision was clear:
Born, therefore, in the territory, under the dominion and within the jurisdictional
limits of the United States, plaintiff has acquired, as was his undoubted right,
a residence in one of the states, with her consent, and is subject to taxation
and to all other burdens imposed by her upon residents of every race. If he
did not acquire national citizenship on abandoning his tribe and becoming, by
residence in one of the states, subject to the complete jurisdiction of the United
States, then the fourteenth amendment has wholly failed to accomplish, in
respect of the Indian race, what, we think, was intended by it; and there is still
in this country a despised and rejected class of persons with no nationality
whatever, who, born in our territory, owing no allegiance to any foreign power,
and subject, as residents of the states, to all the burdens of government, are
yet not members of any political
community, nor entitled to
any of the rights, privileges, or
immunities of citizens of the
United States.
129
In the time following Elk v. Wilkins,
the federal government wielded U.S.
citizenship as a weapon in its quest
to dismantle Native nations, destroy
Tribal sovereignty, and assimilate Tribal
citizens into European culture.
Subjugation without Citizenship
The Removal and Relocation Period marks a clear shift away from the federal government’s
treatment of Tribal nations as separate sovereigns with the inherent authority to govern
peoples and lands. Indeed, in 1849, the federal government formally transferred the Bureau of
Indian Affairs from the Department of War to the Department of the Interior
130
and in 1871, the
128 See Dolan supra
under the jurisdiction of the United States in Cherokee Nation v. Georgia; there the pupillage and ward status subjected
129 Elk, 112 U.S. at 122-23 (Harlan, J. dissenting). Notably, “[d]espite the analysis of jurisdiction and wardship, Harlan still
took the view that Indians must abandon Tribal relations, and Tribal jurisdiction in order to achieve citizenship under the
Fourteenth Amendment[.]” Dolan, supra note 34 at 56.
130 U.S. Dep’t of Interior, Indian Affairs, What’s the BIA’s History? (Jan. 12, 2021), https://www.bia.gov/faqs/what-bias-history.
The Court’s hypocrisy meant that Native peoples
would be subjected to the authority of the United
States when it would allow the federal government
to exercise greater authority over Tribal nations and
within Indian Country. But Native Americans would
not be considered “subject to the jurisdiction” of the
United States when that jurisdiction came with the
promise of civil rights.
PART II: History and the Path to U.S. Citizenship 23
United States Congress expressed the view that it would no longer consider future agreements
negotiated between Tribal nations and the executive branch as treaties.
131
However, even as
the U.S. government exercised increasing control over Tribal nations, Native peoples did not
become a part of the United States’ political community as U.S. citizens. Rather, the political
status of Native peoples was “similar to that of a people in an occupied land under the control
of a foreign power.”
132
Prior to the adoption of the Fourteenth Amendment—
and for decades thereafter for Native peoples—U.S.
citizenship was intimately intertwined with race, or
more specically whiteness. Indeed, from the founding
until the late 1800s, the only people eligible for U.S.
citizenship were whites born to U.S. citizen parents
or white European immigrants.
133
At the time, in the
view of the federal government, Native peoples were
“subjects” of the United States, considered unworthy of
U.S. citizenship.
134
In an 1856 formal opinion from the U.S. Department of Justice, Attorney General Caleb Cushing
used highly racialized and dehumanizing language to describe this relationship:
The fact, therefore, that Indians are born in the country does not make them
citizens of the United States.
The simple truth is plain, that the Indians are the subjects of the United
States, and therefore are not, in mere right of home-birth, citizens of the
United States. The two conditions are
incompatible. The moment it comes to be
seen that the Indians are domestic subjects
of this Government, that moment it is clear to
the perception that they are not the sovereign
constituent ingredients of the Government.
. . .
In ne, no person of the race of Indians is a citizen of the United States by right
of local birth. It is an incapacity of his race.
But may not that natural incapacity cease? May not the members of a family of
Indians, by continual crossing of blood, cease to be Indians? Undoubtedly.
131 See Indian Appropriations Act of 1871, Pub. L. 41-120 (1871).
132 native vote supra note 73 at 2.
133 See, Dred Scott v. Sandford, 60 U.S. 393, 404 (1857), superseded (1868).
134 See, e.g., Relation of Indians to Citizenship, 7 U.S. Op. Att’y Gen. 746, 749-56 (Jul. 5, 1856); Right of Expatriation, 8 U.S. Op.
Att’y Gen. 139, 142 (Oct. 31, 1856); Dred Scott v. Sandford, 60 U.S. 393, 404 (1857), superseded (1868).
Native peoples were “subjects” of the
United States, considered unworthy of
U.S. citizenship.
Prior to the adoption of the
Fourteenth Amendment—and
for decades thereafter for Native
peoples—U.S. citizenship was
intimately intertwined with race, or
more specically whiteness.
24 Voting for Native Peoples: Barriers and Policy Solutions
. . .
[Instead of laying down a general rule] as to the stage at which, by admixture of
blood, the political incapacity of Indians will cease; it seems to me to be more
desirable to conne my conclusion to the very case presented, without going
a step beyond it,—that is, to express the opinion that a person of mixed blood,
retaining tribal relations, cannot also enjoy at the same time the rights of a
citizen of the United States.
[It is] reasonable and just that a half-blood Indian, who still “belongs” to a tribe,
and who claims and takes the benets of such tribal membership, shall not be
allowed at the same time to claim benets which are only attached by law to
persons not Indians.
135
The Attorney General reafrmed that view in a subsequent opinion later in 1856, making it
clear that in his view, Native peoples fell into an entirely separate class from white citizens and
did not enjoy the same rights:
In truth, we must divide the people of the United States into two classes: those
in the full enjoyment of all the rights of citizenship, and those deprived of some or
all of those rights; and then we must distinguish between such of the inhabitants
of the country as are citizens, and such as are subjects only, and whether capable
or not of becoming citizens, yet not so at the present time. I allude, in the latter
case, to the Indians who, in some of the States, are the subjects of the State
in which they exist, but who are in general subjects of the United States;
and to the Africans, or persons of African descent, who, being mostly of servile
condition, are of course not citizens but subjects, in reference as well to the
respective States in which they reside as to the United States.
136
The judiciary branch took a similar stance. In Dred Scott v. Sanford, the odious 1857 case
holding that enslaved and formerly enslaved Black Americans were not U.S. citizens, the U.S.
Supreme Court opined that Native peoples were subjects of the predominantly white federal
government:
It is true that the course of events has brought the Indian tribes within the limits
135 Relation of Indians to Citizenship, 7 U.S. Op. Att’y Gen. 746, 749-56 (Jul. 5, 1856); see also id. at 747, 752, 755 (referring to
individuals who are both white and Native as “half-breeds”); id. at 749 (noting that Native peoples cannot become citizens
through the naturalization acts because they are not foreigners and because “those acts only apply to ‘white’ men”).
136 Right of Expatriation, 8 U.S. Op. Att’y Gen. 139, 142 (Oct. 31, 1856). Cushing famously believed that white people were
superior to all other races, even going so far as to argue that people of color were incapable of self-government. In 1859,
he told the Massachusetts Assembly:
Mr. Speaker, I,—you,—we,—gentlemen of the House of Representatives belong to that excellent white
race, the consummate impersonation of intellect in man and loveliness in woman, whose power and
whose privilege it is, wherever they may go, and wherever they may remain, to Christianize and to civilize,
to command and to be obeyed, to conquer and to reign. I admit to an equality with me, sir, the white
man,—my blood and race, whether he be the Saxon of England, or the Celtic of Ireland. But I do not admit
as my equals either the red man of America, or the yellow man of Asia, or the black man of Africa.
ClaUde m. FUeSS, the liFe oF CaleB CUShinG, vol. 11 230-31 (1923); see also Schroedel and Hart, supra note 45 at 6.
PART II: History and the Path to U.S. Citizenship 25
of the United States under subjection to the white race; and it has been found
necessary, for their sake as well as our own, to regard them as in a state of
pupilage, and to legislate to a certain extent over them and the territory they
occupy.
137
But, at the same time, the Supreme Court suggested that in the same way Congress can pass
legislation making foreign nationals U.S. citizens, it had the authority to make Native peoples
U.S. citizens.
138
Allotment and Assimilation Period (1887-1934)
Allotment Policy
In the late 1800s, the federal government again shifted its stance toward Tribal nations. From
1887 through 1934, the Allotment and Assimilation Period, the federal government sought to
handle the “Indian problem” by attempting to destroy Tribal sovereignty and forcibly assimilate
individual Native peoples into Anglo-European culture and society. U.S. citizenship was central
to this project.
The primary tool used by the federal government to further this goal in the late nineteenth
and early twentieth centuries was allotment—yet another a weapon wielded by the federal
government to dispossess Tribal nations of their homelands.
139
Allotment was authorized by a
series of laws passed by Congress between 1887 and 1906, and carried out by the Secretary
of the Interior on behalf of the President.
140
Under the allotment acts, reservation land,
which had been promised to Tribal nations as a place where they could self-govern and had
previously been held communally by Tribal governments, was divided without the consent
of the Tribe into much smaller, privately owned parcels.
141
The parcels were divided amongst
Tribal member families to be held in trust by the federal government for a period of 25 years
and to become private property after the trust period.
142
Importantly, rather than dividing the
land into a number of parcels equal to the number of Tribal member recipients, the allotment
acts set the size of the parcels and it remained constant, no matter the size of the reservation
137 Dred Scott v. Sandford, 60 U.S. 393, 404 (1857), superseded (1868).
138 Dred Scott, 60 U.S. at 404 (“But they may, without doubt, like the subjects of any other foreign Government, be naturalized
by the authority of Congress, and become citizens of a State, and of the United States; and if an individual should leave
his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges
which would belong to an emigrant from any other foreign people.”).
139 See, e.g., Kaitlyn Schaeffer, Note, The Need for Federal Legislation to Address Native Voter Suppression, 43 n.y.U. Rev. oF l. &
SoC. ChanGe 707, 710.
140 See, e.g., Indian General Allotment Act (Dawes Act), Pub. L. 49-105, 24 Stat. 388 (1887); Dawes Act Amendments of 1891,
26 Stat. 794 (1891); Curtis Act of 1898, Pub. L. 55-517, 30 Stat. 495 (1898); Burke Act, Pub. L. 59-149, 34 Stat. 182 (1906).
141 The size of the parcels was set by the act under which the land was allotted. For example, under the Dawes Act, each
family that accepted an allotment would be entitled to either 160 acres of farmland or 320 acres of grazing land.
National Park Service, History and Culture in the Badlands: The Dawes Act, https://www.nps.gov/articles/000/dawes-act.
htm#:~:text=If%twentiethey%20accepted%twentiethe%20allotment,differences%20between%twentiethe%20two%20
acts. Importantly, while some of the land was promised as land for farming, it was often unsuitable for this purpose. Id.
142
simple”—the way in which most homeowners today own their land. See Dawes Act Amendments of 1891, 26 Stat. 794
(1891).
26 Voting for Native Peoples: Barriers and Policy Solutions
or number of Tribal members.
143
This meant that in most cases, once the parcels had been
allotted to Tribal citizens, there were surplus parcels. Under the allotment acts, any land not
allotted to Tribal members was taken from the Tribe and sold for next to nothing to white
settlers for development as private land.
144
To further the goal of forcibly assimilating Native
peoples, individual Tribal citizens who received private land through allotment were also made
U.S. citizens by the acts.
145
The allotment acts were enacted with the express purpose of breaking up Tribal lands,
weakening Tribal nations, and “assimilating” Native peoples into white U.S. society.
146
By
forcibly turning communally-held land into private property, they caused the total area of
Tribal lands—the land set aside for use by Tribal nations and over which Tribal governments
can exercise their inherent authority to govern as sovereigns—throughout the United States
to decrease from about 138 million acres to
only 48 million acres.
147
Because the allotment
acts transferred Tribal land to individual
Tribal members, and later to non-Native white
settlers, they had the effect of reducing Tribal
jurisdiction, and consequently undermining
Tribal sovereignty.
148
Allotment’s devastating effect on the sovereignty of Native nations and wellbeing of individual
Native people was no accident. The Department of the Interior’s degrading citizenship “ritual”
in which individual Tribal citizens who became U.S. citizens via allotment were made to
participate demonstrates the policy’s assimilationist purpose.
149
In the early-1900s, Secretary
of the Interior Franklin Lane and Major James McLaughlin, a traveling inspector for the
Commissioner on Indian Affairs, created the so-called ritual to represent what they hoped
would mark Tribal members’ transition away from their Native identity.
150
143 See, Indian General Allotment Act (Dawes Act), Pub. L. 49-105, 24 Stat. 388 (1887).
144 See id.
145 See id.
146 National Park Service, History and Culture in the Badlands: The Dawes Act, https://www.nps.gov/articles/000/dawes-act.
htm#:~:text=If%twentiethey%20accepted%twentiethe%20allotment,differences%20between%twentiethe%20two%20
acts.
147 See Native Governance Center, Legacies of Allotment and Indigenous Resistance, https://nativegov.org/resources/
allotment-legacies-guide/.
148 See id.; Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai
Tribes (Apr. 30, 2024) (explaining the devastating effect of allotment on Tribal lands for the Confederated Salish and
Kootenai Tribes and their members).
149 See State Historical Society of North Dakota, Lesson 1: Changing Landscapes, Topic 4: Reservation Boundaries, Section
9: Citizenship, https://www.ndstudies.gov/gr8/content/unit-iii-waves-development-1861-1920/lesson-1-changing-
landscapes/topic-4-reservation-boundaries/section-9-citizenship; Nicole Montclair-Donaghy, The New Assimilated
American, iSSUU, https://issuu.com/humanitiesnd/docs/240994_ost_spg16_new-americans/s/11759842.
150 See State Historical Society of North Dakota, supra note 149; U.S. Dep’t of Interior, Ritual on Admission of Indians to
Full American Citizenship, in State Historical Society of Nort Dakota, McLaughlin Papers, MSS10313, Roll 6, available at
https://www.ndstudies.gov/gr8/content/unit-iii-waves-development-1861-1920/lesson-1-changing-landscapes/topic-4-
reservation-boundaries/section-9-citizenship.
The allotment acts were enacted with the
express purpose of breaking up Tribal lands,
weakening Tribal nations, and “assimilating”
Native peoples into white U.S. society.
PART II: History and the Path to U.S. Citizenship 27
At the beginning of the ritual, the Tribal member becoming a U.S. citizen was asked to give
their “white name” and then their “Indian name.”
151
Men were then handed a bow and arrow and
asked to shoot it.
152
After shooting the arrow, the Department of the Interior representative
would call then Native person by their “Indian name” and tell them:
You have shot your last arrow. That means you are no longer to live the life of an
Indian. You are from this day forward to live the life of a white man. But you may
keep that arrow, it will be to you a symbol of your noble race and of the pride
you feel that you come from the rst of all Americans.
153
The men were then called by their “white name,” asked to put their hands onto a plow, and told:
This act means that you have chosen to live the life of the white man—and the
white man lives by work, From the earth we must get our living and the earth
will not yield unless man pours upon it the sweat of his brow. Only by work do
we gain a right to the land or to the enjoyment of life.
154
Similarly, women were called by their “white name” and asked to take a work bag and purse.
155
They were then told:
This means that you have chosen the life of the white woman—and the white
woman loves her home. The family and the home are the foundation of our
civilization. Upon the character and industry of the mother and home maker
largely depends the future of our Nation.
156
In addition to receiving citizenship through allotment, some individual Native American
women also received citizenship upon marrying non-Native men.
157
Other became U.S. citizens
a result of a statute that allowed Native American WWI veterans who received an honorable
discharge to apply for and be granted citizenship.
158
151 Id.
152 See id.
153 Id.
154 Id.
155 Id.
156 Id.
157 25 U.S.C. § 182 (2012). The Act, passed in 1888, provided:
Every Indian woman, member of any such tribe of Indians, who may be married after August 9, 1888, to
any citizen of the United States, is hereby declared to become by such marriage a citizen of the United
States, with all the rights, privileges, and immunities of any such citizen, being a married woman[.]
Id.
158 An Act Granting Citizenship to Certain Indians, ch. 19, 41 Stat. 350 (1919). The Act provided:
That every American Indian who served in the Military or Naval establishments of the United States
during the war against the Imperial Government [World War I], and who has received or who shall
hereafter receive an honorable discharge, if not now a citizen and if he so desires, shall, on proof of
other examination except as prescribed by said court, be granted full citizenship with all the privileges
pertaining thereto, without in any manner impairing or otherwise affecting the property rights, individual
or tribal, of any such Indian or his interest in tribal or other Indian property.
Id.
28 Voting for Native Peoples: Barriers and Policy Solutions
Figure 2. Early 20th century U.S. citizenship “ritual” for Native peoples receiving U.S. citizenship through
allotment. Source: State Historical Society of North Dakota, McLaughlin Papers, MSS10313, Roll 6.
PART II: History and the Path to U.S. Citizenship 29
During this period, the federal government also ramped up its other assimilationist policies,
including efforts to remove Native children from their homes—almost always without the free
and informed consent of the child’s parents—and send them to federally approved boarding
schools.
159
There, children were prohibited from speaking their Indigenous languages,
engaging in cultural practices, and practicing Indigenous religions.
160
At these boarding
schools, children were often physically or sexually abused and neglected.
161
Some died and
were buried at the schools without families being notied.
162
The Indian Citizenship Act of 1924
The project of U.S. citizenship for Native peoples culminated in 1924 with the Indian
Citizenship Act, or the “Snyder Act”, known for its primary sponsor U.S. Representative Homer
P. Snyder of New York.
163
The Indian Citizenship Act of 1924 statutorily granted citizenship and
its privileges to Native Americans, though by the time U.S. citizenship was granted through
federal statute, nearly two-thirds of Native peoples had already become U.S. citizens, either
through treaty, allotment, or by another statute.
164
The act provides:
That all non-citizen Indians born within the territorial limits of the United
States be, and they are hereby, declared to be citizens of the United States:
Provided, That the granting of such citizenship shall not in any manner impair or
otherwise affect the right of any Indian to tribal or other property.
165
Tribal nations and individual Native Americans had mixed views on becoming U.S. citizens.
166
Some Tribal nations and Native peoples rejected the idea that Tribal members should become
U.S. citizens for fear that U.S. citizenship was incompatible
with Tribal citizenship and governance and concerns
that extending U.S. citizenship to Native peoples would
undermine Tribal sovereignty. By contrast, other Native
peoples were pushing for U.S. citizenship because they
viewed it as a tool to secure civil rights and prevent forced
159 See national native ameRiCan BoaRdinG SChool healinG Coalition, healinG voiCeS volUme 1: a PRimeR on ameRiCan indian and
alaSka native BoaRdinG SChoolS in the U.S. (Jun. 2020), https://boardingschoolhealing.org/wp-content/uploads/2021/09/
NABS-Newsletter-2020-7-1-spreads.pdf; BRyan newland, BUReaU oF indian aFFaiRS, FedeRal indian BoaRdinG SChool initiative
inveStiGative RePoRt (May 2022),
may_2022_508.pdf.
160 See supra note 159 (listing sources).
161 See id.
162 See id.
163 Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253 (1924).
164 See id.; laUGhlin mCdonald, ameRiCan indianS and the FiGht FoR eqUal votinG RiGhtS 18 (2010).
165 Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253 (1924).
166 See PhiliP J. deloRia, AmericAn mAster nArrAtives and the Problem of Indian Citizenship in the Guilded Age and the Progressive
Era, 14 J. of the Gilded Age and Progressive Era 3, 5 (2015) (“The passage of the Indian Citizenship Act . . . would produce
mixed reactions among individuals and tribes: some embraced American citizenship, others doubled down on the concept
of tribal citizen, and some did both.”); mCdonald, supra note 164 at 18-19.
Tribal nations and individual
Native Americans had mixed
views on becoming U.S. citizens.
30 Voting for Native Peoples: Barriers and Policy Solutions
Figure 3. The Indian Citizenship Act of 1924. Source: National Archives.
PART II: History and the Path to U.S. Citizenship 31
removal and relocation.
167
Indeed, there was a tension between the use of U.S. citizenship as
a tool of assimilation and the growing view that citizenship had become a necessary way to
secure the most basic rights.
168
By and large, Tribal citizens advocating in support of U.S. citizenship for Native peoples in the
late nineteenth and early twentieth centuries viewed it as primarily a creative way to secure
better living conditions during the brutal Reservation and Relocation Era when the traditional
tools had been inadequate.
169
As Phillip J. Deloria recounts, “[f]aced with individualizing
practices of domination and land taking, Indian people contemplated citizenship as one
strategy, not for joining the nation-state, but combating it. Insisting on the continuing
legitimacy of negotiated treaties, Indian tribes struggled to maintain collective political
rights.”
170
One of the best-known Native organizations advocating for U.S. citizenship for
Native peoples in the early 1900s was the Society of American Indians (SAI). In the view of
the SAI, “Personal freedom and personal advancement are dependent upon racial rights and
racial advancement.”
171
As one of the organization’s founders explained, “Give citizenship to all
Indians with equal rights (to go into the courts) with any other race or people here in the United
States.”
172
By contrast, some Tribal nations vehemently opposed the Indian Citizenship Act.
173
Immediately
after the passage of the Snyder Act, leaders of the Onondaga Nation sent a letter to President
Calvin Coolidge asking for citizenship not to be extended to their members.
174
To this day,
167 See, e.g., Dolan, supra note 34 at 34; Ablavsky, “With the Indian Tribes”, supra note 25 at 1061-62, 1064 (noting that “Native
peoples turned to the promises of citizenship to avoid removal”).
168 Dolan supra note 34 at 65 (“History demonstrates some of the complex sentiments and positions among American Indians
at the time.”); Philip J. Deloria, American Master Narratives and the Problems of Indian Citizenship in the Gilded Age and
Progressive Era, 14 J. Gilded aGe & PRoGReSSive eRa 3 (2015); Cristina Stanciu, Americanization on Native Terms: The Society of
American Indians, Citizenship Debates, and Tropes of “Racial Difference”, 6 native am. & indiGenoUS StUd. 111 (2019).
169 Deloria supra note 168 at 10 (“Citizenship, for many members of the [Society of American Indians] (and many of the 4,000
people receiving invitations) seemed to hold out the possibility that it might serve as kind of a legal and political tool.”);
id. (“[C]itizenship, at this particular moment, was not an enterprise designed to bring [Native peoples] into the structures
of the nation-state. Rather, it was a tool to strengthen their claim against the nation and its agents, to preserve individual
land in order to remain collectively outside the structures of American society.”).
170 Deloria supra note 168 at 10; see also id. at 9-10 (“In 1871, Congress ended the practice of treaty making with Indian people
(though they continued to negotiate “agreements”). But the nation-to-nation relationship had been thoroughly understood
(and embraced) by most Indian groups, and it left behind a powerful legal residue: one that could draw upon Article Six
of the U.S. Constitution (concerning the superiority of international treaties) to make a claim to collective rights—not
Indian people have based a century of political activism on this principle. In the moment of allotment, however—when
individual landholding was being threatened in ways that involved all levels of American government—Indians also looked
for a second kind of legal base, a way to make similar kinds of claims to rights at the level of the individual rather than the
collective.”).
171 Society of American Indians, Report of the Executive Council on the Proceedings of the First Annual Conference of the
Society of American Indians 17 (1912). Deloria, supra note 168 at 2.
172 Letter from Carlos Montezuma to Jane Gordon, quoted in Cristina Stanciu, Americanization on Native Terms: The Society
of American Indians, Citizenship Depbates, and Tropes of “Racial Difference”, 6:1 native am. & indiGenoUS StUdieS 111, 140, n. 11
(2019).
173 See mCdonald, supra note 164 at 18-19.
174 See Letter from Onondaga Nation Tribal Leaders to U.S. President Calvin Coolidge (Dec. 30, 1924), https://www.
onondaganation.org/news/2018/the-citizenship-act-of-1924/.
32 Voting for Native Peoples: Barriers and Policy Solutions
the Onondaga Nation and Haudenosaunee continue to reject the authority of the federal
government to unilaterally grant U.S. citizenship to Six Nations citizens.
175
Yet, while all Native Americans have been formally entitled to U.S. citizenship since 1924,
individual Native Americans still do not equally enjoy its full privileges because of states’
refusals to respect their rights that U.S. citizenship should guarantee.
Citizenship Without Its Privileges
Many Americans’ reaction to Native peoples becoming U.S. citizens was far from positive and
as a result, U.S. citizenship for Native Americans unfortunately did not guarantee its privileges.
Indeed, despite the Fifteenth Amendment’s promise that the right to vote in U.S. elections
would extend all voting age U.S. citizens—which now included Native peoples—regardless of
race, equal access to the franchise was far from realized
for quite some time after U.S. citizenship was ofcially
granted. Instead, states and localities employed a variety
of strategies to prevent Native peoples from enjoying equal
political participation in federal, state, and local elections.
176
Edith Ranco, a Penobscot citizen living on Penobscot Tribal lands near Old Town, Maine,
describes the opposition to Native peoples’ participation in the nontribal political process
177
in
her community:
[T]he Indians aren’t allowed to have a voice in state affairs because they aren’t
voters. All they have to do out there is to look out for the interests of the Indians.
Just why the Indians shouldn’t vote is something I can’t understand. One of the
Indians went over to Old Town once to see some ofcial in the city hall about
voting. I don’t know just what position that ofcial had over there, but he said to
the Indian, “We don’t want you people over here. You have your own elections
over on the island, and if you want to vote, go over there.”
178
In 1938, perhaps recognizing the conict between Native peoples’ status as U.S. citizens and
the widespread prohibitions on their ability to vote in federal, state, and local elections, the
Solicitor of the Department of the Interior issued a formal opinion, concluding that the U.S.
Constitution requires states to permit Native peoples to vote where non-Natives would be
allowed to vote under the same circumstances.
179
Specically, the Solicitor concluded:
175 See id.
176 See MCCool, et al., native vote, supra note 73.
177
178 Robert Grady, The Life of Henry Mitchell, in U.S. woRk PRoJeCtS adminiStRation, FedeRal wRiteRS’ PRoJeCt, FolkloRe PRoJeCt, liFe
hiStoRieS, 1936-39 (1938-39). This interview was conducted as a part of the Federal Writers’ Project, an initiative of the
New Deal Works Progress Administration (“WPA,” later known as the “Work Projects Administration.”). Id. Edith Ranco
is referenced as “Mrs. Henry Mitchell” in the cited transcript. Ms. Ranco’s name was obtained from the Department of
Cultural and Historic Preservation of the Penobscot Nation. See also Siobhan Senier, Employing the Local: A Penobscot
Modern in the Federal Writers’ Project, 75 new enGland qUaRteRly 355 (Sep. 2002) (noting that Mr. Mitchell is a Penobscot
citizen).
179 See Op. Solic. Interior Dep’t, M-29596 (Jan. 26, 1938).
U.S. citizenship for Native
Americans unfortunately did not
guarantee its privileges.
PART II: History and the Path to U.S. Citizenship 33
[T]he Fifteenth Amendment clearly prohibits any denial of the right to vote to
Indians under circumstances in which non-Indians would be permitted to vote.
The laws of Idaho, New Mexico and Washington which would exclude Indians
not taxed from voting, in effect exclude citizens of one race from voting on
grounds which are not applied to citizens of other races. For this reason, such
laws are unconstitutional under the Fifteenth Amendment.
180
Even so, states and localities employed a variety of tactics to prevent Native peoples from
political participation well into the twentieth century.
Most brazenly, at least ve states expressly
barred Native Americans from registering to
vote or casting a ballot, while others argued
Native peoples could not meet certain voter
qualications. Idaho,
181
Maine,
182
Mississippi,
183
New Mexico,
184
and Washington
185
explicitly
denied the right to vote to “Indians not taxed”
well after the passage of the Snyder Act.
186
Importantly, the requirement that one pay taxes in
order to be an eligible voter only applied to Native peoples—white residents who did not pay
taxes were permitted to cast a ballot without the same restriction.
187
New Mexico’s constitutional provision prohibiting “Indians not taxed” barred Native peoples
from casting a ballot in the state’s elections until a 1948 decision by the Supreme Court of
New Mexico.
188
The case arose when Miguel Trujillo, a member of the Isleta Pueblo, Marine
180 Id.
181 See idaho ConSt. art. VI, § 3 (1890, amended 1950).
182 mCCool, et al., native vote, supra
“Indians not taxed” from voting in state elections).
183 See miSS. ConSt. art. 12, § 241 (1890, amended 1968).
184 See N.M ConSt. art. XII, § 1.
185 See waSh. ConSt. art. VI, § 1.
186 See Jim Crow Indian Style: The Disenfranchisement of Native Americans, 16 am. indian l. Rev. 167, 185 (1991)
Securing Indian Voting Rights, 129
haRv. l. Rev. 1731, 1734 (2016); mCdonald, supra note 164 at 19; mCCool, et al., native vote, supra note 73 at 12. Minnesota also
denied the franchise to “Indians not taxed” at least until the passage of the Indian Citizenship Act. See Opsahl v. Johnson,
138 Minn. 42, 48-49, 163 N.W. 988, 990 (1917). The Minnesota Supreme Court opined:
The exercise of the elective franchise is a participation in government and in the making of the laws to
which all the inhabitants of a nation, state, or municipality must yield obedience. It cannot for a moment
be considered that the framers of the Constitution intended to grant the right of suffrage to person who
were under no obligation to obey the laws enacted as a result of such grant. Or, in other words, that
those who do not come within the operation of the laws of the state, nevertheless shall have the power
to make and impose laws upon others. The idea is repugnant to our form of government. No one should
participate in the making of laws which he need not obey. As truly said by contestant: ‘The tribal Indian
contributes nothing to the state. His property is not subject to taxation, or to the process of its courts. He
bears none of the burdens of civilization, and performs none of the duties of the citizens.’
Id. It is unclear when, after the passage of the Indian Citizenship Act, the state extended the franchise to Native peoples.
187 Seesupra note 185 at 185.
188 See id. at 185-86.
Idaho, Maine, Mississippi, New Mexico,
and Washington
explicitly denied the right
to vote to “Indians not taxed” well after
the passage of the Snyder Act.
34 Voting for Native Peoples: Barriers and Policy Solutions
Corps veteran who served in World War II, and schoolteacher, attempted to register to vote.
189
The county registrar denied Trujillo’s registration because he was an “Indian not taxed” and
therefore ineligible under the state constitution.
190
The New Mexico Supreme Court concluded:
[The constitution of New Mexico] says that “Indians not taxed” may not vote,
although they possess every other qualication. We are unable to escape
the conclusion that, under the Fourteenth and Fifteenth Amendments, that
constitutes a discrimination on the ground of race. Any other citizen, regardless
of race, in the State of New Mexico who has not paid one cent of tax of any kind
or character, if he possesses the other qualication, may vote.
191
Other states used residency as a tool for disenfranchisement.
192
Their argument was
essentially that because of states’ limited (and historically nonexistent) jurisdiction within
Indian Country, despite being U.S. citizens, Tribal citizens living on reservations were not
citizens of the state in which the reservation was located.
193
Consequently, Tribal members
living within reservation boundaries lacked the requisite residency status to qualify to vote
under state law.
194
A Utah statute expressly dened individuals living on
reservations as nonresidents for the purpose of voter
qualication.
195
In 1956, Preston Allen, a Ute Tribal
member living on the Uintah Reservation and U.S. Army
veteran who served in World War II, attempted to vote
in Duchesne County and the county clerk turned him
away.
196
The clerk cited the Utah statute making Allen
ineligible to vote because he was a Tribal member who lived on Tribal lands.
197
Allen challenged
the statute and the state Supreme Court upheld its constitutionality, concluding “it is obvious
that reservation Indians, as a class, occupy a distinctly different status in their relationship
189 See mCCool, et al., native vote, supra note 73 at 13; Sarah Rounsville, Trujillo v. Garley: The Struggle for Native American
Voting Rights, inteRmoUntain hiStoRieS (updated May 16, 2023), https://www.intermountainhistories.org/items/show/251.
190 See mCCool, et al., supra note 73 at 13. Notably this provision was applied to Trujillo even though he did pay some taxes,
including federal income tax, gasoline tax, and sales tax, just not property taxes. Id.
191 Id. (quoting the unpublished opinion in Trujillo v. Garley at 6-7).
192 See id. at 11, 95-97.
193 See id. at 96.
194 See mCCool, et al., native vote, supra note 73 at 12, 95-97. Utah prohibited Native Americans living on reservations from
voting in the state’s elections until the mid-twentieth century. Id. This requirement survived a legal challenge in Utah
state court by Tribal members living within reservations who wished to vote in Utah elections and went through several
iterations of attorney general interpretations—including one that temporarily allowed Native peoples to vote in state
elections before reversing course—before the legislature ultimately repealed the law in 1957. Id. at 95-97.
195 See Allen v. Merrell, 6 Utah 2d 32, 34 (1956), vacated, 353 U.S. 932 (1957) (quoting Par. 11, Sec. 20-2-14, U.C.A. 1953,
which provided “Any person living upon any Indian or military reservation shall not be deemed a resident of Utah within
the meaning of this chapter, unless such person had acquired a residence in some county in Utah prior to taking up his
residence upon such Indian or military reservation.”).
196 See Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West,
1830-1965, 5 nev. l. J. 126, 138 (2004).
197 See id.
Tribal members living within
reservation boundaries lacked
the requisite residency status to
qualify to vote under state law..
PART II: History and the Path to U.S. Citizenship 35
to government than do other citizens.”
198
Though the Utah Supreme Court ostensibly based
its decision on Tribal sovereignty and the lack of state jurisdiction in Indian Country, an
underlying sentiment that Native peoples were somehow less deserving of participation in
state government than white citizens shone through.
199
The court reasoned:
It is not subject to dispute that Indians living on reservations are extremely
limited in their contact with state government and its units and, for this reason
also, have much less interest in or concern with it than do other citizens.
It is a matter of common knowledge that all except a minimal percentage of
reservations Indians live, not in communities, but in individual dwellings or
hogans remotely isolated from others and from contact with the outside world.
Though such a state is certainly not without its favorable aspects, they have
practically no access to newspapers, telephones, radio or television; a very
high percentage of them are illiterate; and they do not speak English but in
their dealings with others and even in their tribal courts, use only their native
Indian languages. Under such conditions it is but natural that they are neither
acquainted with the processes of government, nor conversant with activities
of the outside world generally. Inasmuch as most governmental services
are furnished them, it is patent that they would not have much concern with
services and regulations pertaining to sanitation, business, licensing, school
facilities, law enforcement and other functions carried on by the county and
state governments. This is more especially so because they are not obliged to
pay most of the taxes which support such governmental functions.
It is thus plain to be seen that in a county where the Indian population would
amount to a substantial proportion of the citizenery, or may even outnumber
the other inhabitants, allowing them to vote might place substantial control of
the county government and the expenditures of its funds in a group of citizens
who, as a class, had an extremely limited interest in its functions and very little
responsibility in providing the nancial support thereof.
200
The issue of whether Native peoples living on Tribal lands met the state’s voting residency
requirement also arose at least twice in New Mexico. In Trujillo v. Garley, the state
unsuccessfully argued that the clause of the New Mexico Constitution barring “Indians not
taxed” from voting in state elections did not violate the 15th Amendment in part because Native
peoples on reservations were not residents of the state.
201
Later in 1962—14 years after Native
peoples gained the right to vote in New Mexico—a losing candidate for the state’s lieutenant
198 See Allen v. Merrell, 6 Utah at 39-40.
199 See id.
commensurate tax burden, and are not as conversant with nor as interested in government as other citizens.”).
200 Id. at 38-39.
201 See mCCool, et al., native vote, supra note 73 at 12.
36 Voting for Native Peoples: Barriers and Policy Solutions
governor challenged the outcome of the election he lost, arguing that the Navajo citizens who
voted for his opponent did not meet the residency requirement for voter eligibility.
202
Perhaps more perniciously, other states seized on the racially charged and paternalistic
language in Cherokee Nation v. Georgia,
203
maintaining that statutory prohibitions making
individuals “under guardianship” ineligible to vote applied to Native peoples.
204
In Cherokee
Nation v. Georgia, the Supreme Court held:
[Native peoples] are in a state of pupilage. Their relation to the United States
resembles that of a ward to his guardian.
They look to [the United States] government for protection; rely upon its
kindness and its power; appeal to it for relief to their wants; and address the
president as their great father. They and their country are considered by foreign
nations, as well as by ourselves, as being so completely under the sovereignty
and dominion of the United States, that any attempt to acquire their lands, or to
form a political connexion with them, would be considered by all as an invasion
of our territory, and an act of hostility.
. . .
In considering this subject, the habits and usages of the Indians, in their
intercourse with their white neighbours, ought not to be entirely disregarded.
At the time the constitution was framed, the idea of appealing to an American
court of justice for an assertion of right or a redress of wrong, had perhaps
never entered the mind of an Indian or of his tribe. Their appeal was to the
tomahawk, or to the government. This was well understood by the statesmen
who framed the constitution of the United States[.]
205
Based on this language, numerous states, including Arizona, sought to disenfranchise Tribal
citizens under state laws barring individuals “under guardianship” from registering to vote or
casting a ballot.
206
In 1928—four years after Native peoples became U.S. citizens under the Snyder Act—the
Arizona Supreme Court determined Tribal members were ineligible to vote in the state’s
elections pursuant to a guardianship restriction.
207
Peter Porter and Rudolph Johnson, Akimel
O’odham Tribal members living on the Gila River Indian Reservation, attempted to register
to vote in Pinal County, Arizona, but the County Recorder rejected their registrations.
208
The
202 See Montoya v. Bolack, 70 N.M. 196 (1962); mCCool, et al., supra note 73 at 12.
203 Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
204 See mCCool, et al., native vote, supra note 73 at 14-18.
205 Cherokee Nation v. Georgia, 30 U.S. at 17-18.
206 See mCCool, et al., native vote, supra note 73 at 11-12.
207 See Porter v. Hall, 34 Ariz. at 315; see also Patty Ferguson-Bohnee, The History of Indian Voting Rights in Arizona:
Overcoming Decades of Voter Suppression, 47 aRiz. St. l. J. 1099, 1108-09 (2016).
208 See Porter v. Hall, 34 Ariz. at 313.
PART II: History and the Path to U.S. Citizenship 37
Recorder claimed that Porter and Johnson were ineligible
to vote because, as Tribal citizens living on a reservation,
they could not meet the residency requirements for
voter eligibility and were disqualied under the state
constitutional provision that prohibits persons under
guardianship from voting.
209
While the court rejected
the residency argument, it held that Native peoples,
“notwithstanding their citizenship,” were ineligible to vote
in Arizona because of their alleged guardianship status.
210
The Arizona Supreme Court’s decision rests on a racist view of Native peoples as inherently
less capable than white Americans of political participation. In 1928, when the case was
decided, the Arizona Constitution provided in relevant part:
No person under guardianship, non compos mentis, or insane, shall be qualied
to vote at any election[.]
211
The Arizona Supreme Court dened “guardianship” largely based on the perceived intelligence
or mental capacity of the person alleged to be under guardianship, rather than their legal status:
Broadly speaking, persons under guardianship may be dened as those who,
because of some peculiarity of status, defect of age, understanding, or self-
control, are considered incapable of managing their own affairs, and who
therefore have some other person lawfully invested with the power and charged
with the duty of taking care of their persons or managing their property, or both.
. . . The person falling within any of the classes is to some extent and for some
reason considered by the law as incapable of managing his own affairs as a
normal person, and needing some special care from the state. . . . The man who
for any reason is exempt from responsibility to the law for his acts, who cannot
be trusted to manage his own person or property, certainly as a matter of
common sense cannot be trusted to make laws for the government of others,
and placing him under the guardianship of another conclusively establishes
that incapacity. We hold, therefore, that any person who, by reason of personal
inherent status, age, mental deciency, or education, or lack of self-control, is
deemed by the law to be incapable of handling his own affairs in the ordinary
manner, and is therefore placed by that law under the control of a person or
agency which has the right to regulate his actions or relations towards others in
a manner differing from that by which the actions and relations of the ordinary
citizen may be regulated, is a ‘person under guardianship,’ within the meaning
of section 2, article 7, of the [Arizona] Constitution.
212
209 See id. at 315.
210 See id. at 331-32.
211 Id. at 315 (quoting aRiz. ConSt. art. VII, § 2).
212 Id. at 323-24.
Numerous states, including
Arizona, sought to disenfranchise
Tribal citizens under state laws
barring individuals “under
guardianship” from registering to
vote or casting a ballot.
38 Voting for Native Peoples: Barriers and Policy Solutions
The Arizona Supreme Court held that it was “undisputed” that Native peoples “fall within this
category[.]”
213
Finally, some states granted the right to vote to Native Americans only if they severed all
afliations with their Tribe and gave up their cultural identities.
214
How exactly a Tribal citizen
was expected to several Tribal relations was unclear. In practice, however, it meant that a
Native person’s eligibility to vote in federal, state, and local elections depended on whether
state ofcials determined that “the perceived differences between Indians and whites” had
essentially been “erased[.]”
215
In North Dakota, for instance, a Tribal member could meet the
test by showing they:
live the same as white people; they are law-abiding; do not live in tribes under
chiefs; that they marry under the civil laws of the state the same as whites,
and that they are Christians; that they have severed their tribal relations and
adopted civilized life for a period dating back at least 20 years.
216
In Minnesota, Native peoples were to considered to “have adopted the habits and customs of
civilization” when:
[T]hey live in separate dwellings, constructed and furnished after the manner
of the surrounding white settlers[,] . . . can understand and speak English, and
even write their names, are members of Christian churches, and make a living
much the same way as people in the vicinity of the reservation.
217
Native peoples also faced barriers that applied
more broadly to communities of color or language
minorities in general, including those faced by Black
Americans during the Jim Crow era.
218
Some of the
barriers included poll taxes or literacy tests.
219
These
devices were facially neutral but were employed
in a manner that had both the intent and effect of
disenfranchising voters of color, and did so with alarming success.
220
Finally, Native voters who
could actually cast a ballot often had their voting strength minimized through vote dilution
through strategic malapportionment.
221
213 Id. at 324.
214 mCCool, et al., native vote, supra note 73 at 11-12.
215 Id. at 12.
216 Swift v. Leach, 45 N.D. 437, 178 N.W. 437, 439 (1920).
217 Opsahl v. Johnson, 138 Minn. 42, 44-45, 163 N.W. 988, 988 (1917).
218 E.g., Securing Indian Voting Rights, 129 haRv. l. Rev. 1731, (2016).
219 See, e.g., Securing Indian Voting Rights, supra note 217 at 1734; Danna R. Jackson, Eighty Years of Indian Voting: A Call to
Protect Indian Voting Rights, 65 mont. l. Rev. 269, 272-74 (2004); mCCool, et al., native vote, supra note 73 at 18-19.
220 See id.
221 See id. at 48-68.
Some states granted the right to
vote to Native Americans only if they
severed all afliations with their Tribe
and gave up their cultural identities.
PART II: History and the Path to U.S. Citizenship 39
The Voting Rights Act of 1965 (VRA)
222
and its 1975
amendments protecting language minorities,
223
which
extended protections to Native peoples, has been an
extremely important tool in securing equal access
to the political process for Native peoples.
224
Today,
there have been more than one hundred legal actions,
including lawsuits and pre-lawsuit enforcement
actions, brought under the VRA by or on behalf of
Tribal members.
225
While these lawsuits represent
hard fought victories for Tribal nations and their
citizens, there is substantial work to be done to guarantee that all Native peoples have equal
access to the nontribal political process. The remainder of this report details those barriers.
222 See Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437 (Aug. 6, 1965).
223 See Pub. L. 94-73, 89 Stat. 400 (Aug. 6, 1975).
224 See generally mCCool, et al., native vote, supra note 73.
225 See id. at 48-68 (listing cases); native ameRiCan RiGhtS FUnd, JameS thomaS tUCkeR, JaCqUeline de león, dan mCCool, oBStaCleS
at eveRy tURn: BaRRieRS to PolitiCal PaRtiCiPation FaCed By native ameRiCan voteRS 19-23 (Jun. 2020), https://vote.narf.org/wp-
content/uploads/2020/06/obstacles_at_every_turn.pdf (listing cases); native ameRiCan RiGhtS FUnd, 2021 CaSe UPdateS
to oBStaCleS at eveRy tURn: BaRRieRS to PolitiCal PaRtiCiPation FaCed By native ameRiCanS, https://vote.narf.org/wp-content/
uploads/2021/10/obstacles-2021cases.pdf (listing cases) [hereinafter “oBStaCleS 2021 CaSe UPdateS”].
The Voting Rights Act of 1965 (VRA)
and its 1975 amendments protecting
language minorities, which extended
protections to Native peoples, has been
an extremely important tool in securing
equal access to the political process for
Native peoples.
40 Voting for Native Peoples: Barriers and Policy Solutions
PART III
Present Barriers to Political Participation
Extreme Physical Distances to In-Person Voting and Voter Services
Native Americans face substantial barriers to accessing in person voting and voter services,
including voter registration and ballot drop boxes, due to extreme physical distances. These
barriers are compounded by limited vehicle access and poor road conditions, especially in
the winter.
226
It is not uncommon for Native voters who reside on Tribal lands to live an hour
or more from the nearest polling place, voter registration location, or other county service
227
Some voters who live on the Navajo Nation must travel up to 95 miles to access their nearest
polling location, while others have to make long
trips on exclusively dirt roads.
228
In Nevada,
some Native voters have to travel up to 100
miles roundtrip in counties that do not provide
satellite voting locations on reservations.
229
In
elections where counties have not provided
satellite voting locations on reservations
in Montana, some voters have had to travel hours to reach their nearest polling place.
230
In
Minnesota, Mille Lacs Band of the Ojibwe Tribal members commonly have to travel up to 40
miles roundtrip to access in-person voting.
231
Often, Tribal members who live the farthest from
polling places and other county services are the same ones who have the fewest resources to
overcome the barriers created by extreme distances, including elders.
232
One of the most effective ways to reduce travel burdens and encourage voters living on
Tribal lands to participate in federal, state, and local elections is for counties to offer early
226 Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb. 19,
2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council; id., Testimony of Hon. Curtis Yanito, Navajo
Nation Council; Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024),
Testimony of Chairman Verlon Jose; Roundtable on Voting Barriers and Election Administration for Tribal Citizens in
Arizona (Feb. 22, 2024), Testimony of President Harvier, Salt River Pima Maricopa Indian Community; Interview with Peri
Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th District, in
Rapid City, S.D. (Apr. 16, 2024).
227 See oBStaCleS at eveRy tURn, supra note 225.
228 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council.
229 See oBStaCleS at eveRy tURn, supra note 225 at 91.
230 See Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai
Tribes (Apr. 30, 2024), Testimony of Hon. James Steele, Jr., Treasurer, Confederated Salish and Kootenai Tribes.
231 See oBStaCleS at eveRy tURn, supra note 225 at 91.
232 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council.
It is not uncommon for Native voters who
reside on Tribal lands to live an hour or
more from the nearest polling place, voter
registration location, or other county service.
PART III: Present Barriers to Political Participation 41
and Election Day voting locations on reservations.
233
But despite the distances Tribal members
must travel to cast a ballot in the absence of on-reservation voting locations, Tribal nations
often face pushback from local ofcials when they request a polling location be opened on
Tribal lands. Some county ofcials claim to have insufcient stafng to provide robust on-
reservation voting opportunities, while others simply ignore the requests altogether.
234
Refusals to Provide In-Person Voting On-Reservations
For example, in an attempt to avoid opening a polling place for the 2022 general election on the
Yomba Shoshone Reservation,
235
the Nye County, Nevada clerk ignored a state law requiring
counties to open polling places on Tribal lands upon request by a Tribal nation.
236
Without the
on-reservation polling location, Yomba Shoshone Tribal members would have to travel up to
two hours on poorly maintained dirt roads just to cast a ballot.
237
To ensure Tribal members
had access to the ballot box, Yomba Shoshone Tribal
Chairman Wayne Dyer in July 2022 requested a polling
place for the November general election, pursuant to
the process laid out by state law.
238
Even though the
County Auditor conrmed receipt of the request in
August, on October 20—just over three weeks before
the election—the Nye County Clerk informed the
Yomba Shoshone Tribe that the County would not be opening a polling location on the Tribe’s
reservation, claiming that the request had been lost in the shufe when the County’s new clerk
took ofce.
239
While Nye County ultimately agreed to open the on-reservation polling location,
it only did so on the Friday before the election, meaning that the Yomba Shoshone Tribe
lost weeks of valuable time to inform voters about where they could cast a ballot.
240
Making
matters worse, there was a three-day internet outage on the reservation lasting throughout
the weekend before the election, which further hampered the Tribe’s efforts to inform voters
about the on-reservation polling place.
241
233 See Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024),
Testimony of Dew Bad Warrior-Ganje (describing a successful campaign to have early voting implemented for two weeks
in Eagle Butte on the Cheyenne River Sioux Tribe’s reservation).
234 See Jeniffer Solis, Nye County Chaos Cut into Yomba Shoshone Voting Access, nevada CURRent (Nov. 23, 2022), https://
nevadacurrent.com/2022/11/23/nye-county-chaos-cut-into-yomba-shoshone-voting-access/
Tribes against two counties in Nevada to have on-reservation polling places, early voting locations, and ballot drop boxes).
235 See Solis, supra note 234; Gustavo Sagrero, Nye County Is Denying the Yomba Shoshone Tribe an On-site Polling Location
During Election Day, knUR (Nov. 3, 2022), https://www.kunr.org/politics-and-policy/2022-11-03/2022-election-nevada-
nye-county-denying-yomba-shoshone-tribe-polling-location; Nicole Hansen, Polling Location Opened on the Yomba
Shoshone Resrvaiton, CamPaiGn leGal CenteR (Nov. 7, 2022), https://campaignlegal.org/update/polling-location-opened-
yomba-shoshone-reservation.
236 See N.R.S. § 293.2733.
237 See Solis, supra note 234
238 See id.
239 See id.
240 See id.
241 See id.
The Nye County, Nevada clerk ignored
a state law requiring counties to open
polling places on Tribal lands upon
request by a Tribal nation.
42 Voting for Native Peoples: Barriers and Policy Solutions
In Minnesota, for years, Tribal citizens from the Red Lake Nation living on the reservation
had to travel more than 35 miles to the county seat in Bemidji to cast a ballot in person.
242
But in 2014, after community advocacy and an offer by the Tribe to provide funding,
Beltrami County agreed to open an early voting location on the reservation at the Red
Lake Tribal Ofce.
243
In recent years, however, the Red Lake Nation has not been able to
provide funding for the satellite ofce. Rather than continue to operate the satellite ofce,
Beltrami County has shut down the early voting location on the Red Lake Reservation,
despite numerous requests by the Red Lake Nation to keep it open. Today, voters from the
Red Lake Nation once again face severe and disparate burdens to accessing the ballot
box. Rather than being able cast their ballots in a nearby government ofce like residents
in the county seat of Bemidji, Red Lake Tribal members are forced to travel up to an hour to
their nearest early voting location at the Ofce of the Beltrami County Auditor—a trip that
can be prohibitively expensive in a place like the Red Lake Reservation, where more than a
quarter of all residents (25.7 percent) live below the poverty line.
244
Limited Hours for In-Person Voting on Reservations
When counties do provide polling places on
reservations, they often have limited hours,
making them less accessible than polling
places outside of Tribal lands, especially
for voters who work during the day.
245
On
the Rosebud Reservation, during the 2022
election, the satellite early voting location for
Todd County, South Dakota was only open two
days, from 10:00 a.m. to 3:00 p.m.—hours that make it almost impossible for many voters
to cast an in-person early ballot—and is located in Mission, which is more accessible to
poll workers travelling from the county seat than Tribal members living on the reservation,
rather than in Rosebud where the population center is.
246
The county clerk of Elko County,
Nevada initially planned to offer voters from the Shoshone-Paiute Tribes on the Duck
Valley Indian Reservation a mere eight hours of early voting on the reservation and only
agreed to increase access after a lawsuit by the Tribe.
247
This would have been a paltry
amount compared to the robust 108 hours of early voting, 12 hours of election day voting,
and Election Day drop box available to voters elsewhere in the County.
248
242 See Four Directions, 2014: Minnesota Adds Early Voting on Indian Reservations, https://www.fourdirectionsvote.com/
engagement/2014-minnesota-adds-early-voting-on-indian-reservations/.
243 See id.
244 See Michael Meuers, Successful Voter Registration Drive at Red Lake, Red lake nation newS (Oct. 26, 2020), https://
www.redlakenationnews.com/story/2020/10/26/opinion/successful-voter-registration-drive-at-red-lake/93281.
html; U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Poverty Status in the Past 12 Months,
S1701.
245 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
246 See id.; Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota
Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
247 Solis, supra note 234.
248 See id.
When counties do provide polling places on
reservations, they often have limited hours,
making them less accessible than polling
places outside of Tribal lands, especially
for voters who work during the day.
PART III: Present Barriers to Political Participation 43
Insufcient Ballot Drop Boxes on Reservations
Some Tribal nations have sought to have ballot drop boxes placed on reservations in order
to mitigate the difculty of accessing in-person voting, but often Tribal members still have
to travel signicant distances to access a drop box.
249
For instance, on the Hopi Reservation,
which covers 2,532 square miles and shares geography with two Arizona counties, there is
only a single ballot drop box location; this single drop box is available only to voters from one
of the two counties.
250
And as is the case with in-person voting locations, county ofcials can
often be reluctant to provide drop boxes on reservations. The Shoshone-Paiute Tribes of the
Duck Valley Indian Reservation only secured an on-reservation ballot drop box for voters in
Elko County, Nevada in the 2022 election after a lawsuit by the Tribe.
251
However, even after
the County promised to place a ballot drop box on the reservation, the Elko County Sheriff’s
Ofce refused to deliver the drop box, forcing state ofcials to intervene and assist with the
delivery to ensure voters on the Duck Valley Reservation could cast a ballot.
252
Compounding Barriers to Voting in Person
The extreme distances that Native voters frequently must travel to cast a ballot are often
compounded by poor infrastructure on or around reservations, many Native voters’ limited
access to reliable transportation, and
the all-too-often minimal resources
that people in Tribal communities
have to afford gas.
253
Many Tribal
lands are primarily served by dirt
roads.
254
On the Navajo Nation, for
example, 86 percent of roads are
unpaved.
255
These roads can become
impassable during rain and winter
249 See id.; Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024), Testimony
of Alfred Lomaquahu, Registrar, Hopi Tribe.
250 See id.; CoConino CoUnty ReCoRdeR, voteR SeRviCeS diviSion, CoConino CoUnty Ballot dRoP Box loCationS, maRCh 19, 2024
PReSidential PReFeRenCe eleCtion, https://www.coconino.az.gov/DocumentCenter/View/61915/Coconino-County-Ballot-
Drop-Box-Locations---2024-PPE; navaJo CoUnty ReCoRdeR, eaRly Ballot dRoP Box loCationS, https://www.navajocountyaz.
gov/DocumentCenter/View/2021/EARLY-BALLOT-DROP-BOX-LOCATIONS.
251 See Solis, supra note 233.
252 See Interview with Bret Healy, Counsel, Four Directions, in Washington, D.C. (Mar. 22, 2024).
253 See e.g., Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter
House (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo
Nation Council (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation
(Feb. 21, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024);
Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Roundtable on Voting Barriers and Election Administration for Tribal
Citizens in Montana (Apr. 29, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D.
(Apr. 17, 2024); oBStaCleS at eveRy tURn, supra note 224 at 31.
254 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony
of Chairman Verlon Jose; Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo
Nation Council (Feb. 19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council.
255 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council.
The extreme distances that Native voters frequently
must travel to cast a ballot are often compounded by
poor infrastructure on or around reservations, many
Native voters’ limited access to reliable transportation,
and the all-too-often minimal resources that people in
Tribal communities have to afford gas.
44 Voting for Native Peoples: Barriers and Policy Solutions
storms that are particularly common in November when most general elections take place.
256
On top of poor infrastructure, many Tribal members who live on reservations lack access
to reliable transportation and public transit rarely reaches rural parts of reservations.
257
Together, these factors can make it nearly impossible for many Tribal members to make the
trip to cast a ballot.
258
256 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
257 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and
Kootenai Tribes (Apr. 30, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban
South Dakota (Apr. 19, 2024), Testimony of Dew Bad Warrior-Ganje (describing a successful campaign to have early voting
implemented for two weeks in Eagle Butte on the Cheyenne River Sioux Tribe’s reservation); Interview with Louis “Wayne”
Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
258 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21,
2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Interview
with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th
District, in Rapid City, S.D. (Apr. 16, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens
in Montana (Apr. 29, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17,
2024); oBStaCleS at eveRy tURn, supra note 225 at 31.
PART III: Present Barriers to Political Participation 45
Lack of Standard Residential Street Addresses and
Sufficient USPS Mail Services
Lack of Standard Residential Addresses on Reservations
Laws that require voters or voter registration applicants to provide a standard residential
address as a condition of registering or voting—or that rely solely on numbered street
addresses to register or locate voters’ homes—severely hamper the ability of Native peoples to
cast a ballot because many homes on reservations do not have standard addresses.
259
Indeed,
on many reservations, homes and other buildings are not addressed at all.
260
Rather than
using a numbered street address,
261
Tribal members commonly use descriptive addresses,
specifying where they live using highway or Bureau of Indian Affairs route numbers, mile
markers, and other landmarks.
262
These directions might sound something like “turn off U.S.
Highway 55 between mile markers 4 and 5. It’s a red house with a brown roof.”
263
Because
descriptive addresses generally cannot be used on ofcial documents, Tribal members often
use their post ofce box (P.O. box) address instead for things like driver’s licenses and other
identication cards, bank and credit card statements, utility bills, and other documentation.
264
Tribal members who rely primarily on descriptive addresses often face substantial obstacles
when attempting to register to vote and cast a ballot.
Most troublingly, in some instances,
Tribal members have been completely barred from the
political process or certain methods of voter registration
when they attempt to use a descriptive address.
265
In Rosebud
County, Montana, which shares geography with the
Northern Cheyenne Tribe, local ofcials have rejected voter
259 See oBStaCleS at eveRy tURn, supra note 224 at 95; Roundtable on Voting Barriers and Election Administration on the Navajo
Nation, Part I: Sheep Springs Chapter House (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on
the Navajo Nation, Part III: Navajo Nation Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second
Mesa, Ariz (Feb. 20, 2024); Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb.
21, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Interview
with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the
27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in
Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-
Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen
of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud,
S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota
(Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes
(Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of
the Montana House of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic
Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
260 See supra note 259 (listing sources).
261 This refers to an address that includes a building number followed by a street name, city, state, and zip code (i.e., 1600
Pennsylvania Avenue NW, Washington, DC 20500).
262 See supra note 259 (listing sources).
263 This example is taken from a real descriptive address, but details have been changed to protect privacy.
264 See supra note 259 (listing sources).
265 See Telephone Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
On many reservations, homes
and other buildings are not
addressed at all.
46 Voting for Native Peoples: Barriers and Policy Solutions
registration applications that use descriptive addresses.
266
To justify the rejections, local
ofcials incorrectly claimed that Montana’s voter registration database requires voters with
nonstandard addresses to provide either geographic coordinates (i.e., latitude and longitude)
or the address assigned to them for emergency services—both of which are unfamiliar to
most voters living on reservations in the county.
267
In Wisconsin, the voter registration application
requires applicants to list a physical address,
provide documentary proof of that address, and
does not permit applicants to use a P.O. box.
268
Certain voter registration applicants, including
unhoused applicants, may use a descriptive
address or draw where they live, but they must
still provide documentary proof of the location of their residence.
269
This creates substantial
barriers for Tribal members who rely primarily on descriptive addresses and P.O. boxes.
270
Indeed, while Tribal members living on reservations are often assigned addresses to use for
emergency services, many do not memorize that address or use it on ofcial documents—
largely because they cannot use their home address for reliable mail delivery—and instead
list their P.O. box on all ofcial documents.
271
As a result, providing proof of residence in order
to register to vote is prohibitive for many Tribal members living on reservations in Wisconsin.
272
In other cases, nontribal governments have attempted to make accommodations for voters
and voter registration applicants who use descriptive addresses, to varying degrees of
success. While some states and the National Mail Voter Registration Form (the “Federal
Form”) permit voter registration applicants to draw where they live on the voter registration
application, the instructions can be extremely confusing for voters when the form does not
use the nomenclature used by Tribal members to describe where they live.
273
Pima County, Arizona Recorder Gabriella Cázares-Kelly, who is a citizen of the Tohono O’odham
Nation, explained that many voter registration applicants who live on the Tohono O’odham
266 See id.
267 See id.
applicants to provide a standard street address. See id.
268 See Telephone Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May
13, 2024); wiSConSin eleCtionS Comm’n, wiSConSin voteR ReGiStRation aPPliCation, EL-131 (revised Jun. 2020), https://
elections.wi.gov/sites/default/files/legacy/2020-06/El-131%2520Voter%2520Registration%2520App_Fillable-
%2520%2528REV%25202020-06%2529_0.pdf; Wisconsin Elections Comm’n, Voter Registration and Proof of Residence,
https://elections.wi.gov/Register#230548828-2065974417.
269 See supra note 268 (listing sources).
270 See Telephone Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
271 See id.
272 See id.
273 See U.S. eleCtion aSSiStanCe Comm’n, national mail voteR ReGiStRation FoRm, https://www.eac.gov/voters/national-mail-
voter-registration-form; aRiz. SeC’y oF State, aRizona voteR ReGiStRation FoRm,
voter_registration_form_092222-standard.pdf; Roundtable on Voting Barriers and Election Administration on the Tohono
O’odham Nation (Feb. 21, 2024), Testimony of Gabriella Cázares-Kelly, Pima County Recorder, Citizen of the Tohono
O’odham Nation (noting that the voter registration form would be more accessible for citizens of the Tohono O’odham
Nation if it asked the applicant which village they reside in).
In some instances, Tribal members have been
completely barred from the political process
or certain methods of voter registration when
they attempt to use a descriptive address.
PART III: Present Barriers to Political Participation 47
Reservation are unfamiliar with which county they live in and where they should register to
vote.
274
This is because the dividing marker between Pima County and Pinal County on the
Tohono O’odham Reservation is an unmarked wash
275
and Tohono O’odham citizens generally
rely on Tribal services that do not distinguish between the two counties.
276
Recorder Cázares-
Kelly recalls another conversation with an elder who needed assistance completing Arizona’s
voter registration application because the elder did not know how detailed the drawing of her
residence needed to be in order to properly identify her home.
277
There can also be issues processing voter registration forms from applicants using descriptive
addresses when ofcials are not properly trained.
278
Indeed, it is not uncommon for a voter who
registers using a descriptive address to be placed in the wrong precinct by county ofcials.
279
Importantly, if the mistake is not caught before Election Day and the voter shows up to the
polling place to which they should be assigned based on the actual location of their home,
they will not appear on the list of eligible voters in the precinct and are likely to be turned away
by poll workers or made to cast a provisional, rather than a regular, ballot.
280
This is particularly problematic on reservations that share geography with more than one
county, like the Tohono O’odham Reservation, which primarily shares geography with Pima
County and Pinal County, but which also has a single precinct in Maricopa County.
281
For some
time, ofcials in Maricopa County were unfamiliar with the Tohono O’odham precinct in the
County and would automatically forward voter registration applications from the reservation
to Pima County, believing they were received in error, causing undue delays in registration.
282
On some reservations, Tribal nations and the states or localities with which they share
geography have begun to designate home addresses, often in order to make 9-1-1 services
274 See id.
275 This is a topographic term that refers to “a shallow channel that follows the contours of the land and allows water to
See Clay Thompson, What Is the Difference Between Arroyo, Gulch
and Wash?, az CentRal (Jul. 20, 2015), https://www.azcentral.com/story/travel/local/history/2015/07/20/difference-arroyo-
gulch-wash-terminology/30410531/#.
276 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony
of Gabriella Cázares-Kelly, Pima County Recorder, Citizen of the Tohono O’odham Nation.
277 See id.
278 See id.; Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); First Amended
Complaint, ECF No. 43, Spirit Lake Tribe v. Jaeger, No. 1:18-cv-00222 (Feb. 28, 2019).
279 See supra note 278 (listing sources).
280 See id.
281 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony
of Gabriella Cázares-Kelly, Pima County Recorder, Citizen of the Tohono O’odham Nation.
282 See id.
48 Voting for Native Peoples: Barriers and Policy Solutions
more functional and accessible.
283
And while the efforts have generally been welcomed,
there have been serious issues with implementation, including when voters or county ofcials
attempt to use the 9-1-1 addresses for the purposes of voter registration.
284
In some instances,
where states or counties have driven the 9-1-1 addressing programs, it has been inconsistent
from jurisdiction to jurisdiction, with 9-1-1 addresses commonly showing individuals residing
miles from their actual residence and sometimes even in a different county when input into
a GPS locator.
285
As a result, important systems, including voter registration databases, that
nontribal governments rely on in order to provide services do not properly recognize these
addresses—either because the database shows the voter in the wrong location based on
their 9-1-1 address or because the requisite underlying data has not been programmed into
the databases.
286
In the context of voting, this has resulted in counties assigning voters to
incorrect precincts without the voters’ knowledge, resulting in voters being turned away from
the polling place on Election Day.
287
In some instances, this has even included voters who were
previously registered in the correct precinct that corresponds to their actual residence, but
were incorrectly relocated in county databases and moved to a different precinct without
their knowledge after ofcials made internal changes.
288
In other cases, systems designed
to make voting or voter registration more accessible, like online voter registration and online
polling place lookup tools, are not compatible with 9-1-1 addresses because ofcials have
not updated them with the necessary underlying data or because they rely on geolocation
software that does not recognize the 9-1-1 addresses.
289
Inadequate USPS Services and Vote by Mail
Tribal lands are also severely underserved by the United States Postal Service (USPS),
making mail voting and other election services delivered via mail—including important
283 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe,
in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-
Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen
of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud,
S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota
(Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House
of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic Engagement Director,
Wisconsin Conservation Voters (May 13, 2024).
284 See supra note 283 (listing sources).
285 See, e.g., Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House
of Representatives for the 15th District (May 1, 2024); First Amended Complaint, ECF No. 43, Spirit Lake Tribe v. Jaeger, No.
1:18-cv-00222 (Feb. 28, 2019).
286 See supra note 285 (listing sources).
287 See, e.g., Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Phone
Interview with Nicole Donaghy, Hunkpapa Lakota, Executive Director, North Dakota Native Vote (Jun. 17, 2024).
288 See supra note 287 (listing sources).
289 See Telephone Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
PART III: Present Barriers to Political Participation 49
Most Tribal lands have no home
mail delivery by the USPS.
communications and notices of inactivity—inaccessible for
many Native voters.
290
Indeed, most Tribal lands have no
home mail delivery by the USPS.
291
Instead, Tribal members
living on Tribal lands often rely on P.O. boxes to receive their
mail.
292
But on many reservations, post ofces are sparsely located and have limited hours.
293
Some Tribal citizens have to travel signicant physical distances to access their mail and as a
result check their mailboxes infrequently, sometimes missing important documents including
communications from election ofcials.
294
Professor Jean Schroedel
295
explains how Native peoples living on Tribal lands commonly
receive their mail:
Without residential mail delivery, people living on the reservation must travel
to post ofces and postal provider sites that are located some distance from
their homes, and these places offer fewer services, shorter hours, and a limited
number of post ofce boxes. Postal provider sites are staffed by non-USPS
contractors, located in places such as mini-marts and gas stations, and provide
very limited hours and services.
296
290 See oBStaCleS at eveRy tURn, supra note 225 at 95-96; white hoUSe, RePoRt oF the inteRaGenCy SteeRinG GRoUP on native ameRiCan
votinG RiGhtS 24-25 (Mar. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/03/Tribal-Voting-Report-FINAL.
pdf [hereinafter, “white hoUSe RePoRt”]; Jean Reith Schroedel, Kara Mazareas, Joseph Dietrich, and Jamaica Bacus-
Crawford, Yazzie v. Hobbs, The 2020 Election and Voting by Mail On- and Off-reservation in Arizona 44 U. ARk. little RoCk
l. Rev. 193 (2020) [hereinafter, “Schroedel, et al., 2020 Election and VBM”]; Jean Schroedel, Melissa Rogers, and Joseph
Dietrich, Structural Racism, the USPS, and Voting by Mail On- and Off-Reservation in Arizona, 37 StUd. in am. Pol. develoPment
111 (2023) [hereinafter, “Schroedel, et al., Structural Racism, the USPS, and VBM”] (describing how today’s inequities in
USPS services on Tribal lands is the direct result of choices made in the nineteenth and twentieth centuries to serve the
federal government’s military and settler colonial interests).
291 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business Council,
in Seabrook, Wash. (Mar. 11, 2024); Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South
Dakota House of Representatives for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne”
Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the
Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17,
2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration
for Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the
Blackfeet Tribal Council, Member of the Montana House of Representatives for the 15th District (May 1, 2024); Telephone
Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
292 See supra note 291 (listing sources).
293 See id.
294 See
Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); oBStaCleS at eveRy tURn, supra
some voters go months without access to their mail).
295 Dr. Jean Shroedel, Ph.D, is a professor emerita of political science at the Claremont Graduate University.
296 Schroedel, et al., 2020 Election and VBM, supra note 290 at 198.
50 Voting for Native Peoples: Barriers and Policy Solutions
Notably, Native peoples living on reservations have less access
to postal services than other Americans, even when compared to
individuals living in rural areas outside of reservations.
297
This is
caused by fewer post ofce and mailbox locations, shorter post
ofce hours, and, perhaps most remarkably, substantially longer
delivery times for services on-reservation, when compared to
off-reservation services.
298
In recent years, these disparities
have been worsened by closures of on-reservation post ofces
and off-reservation distribution centers that serve Tribal lands,
further reducing the number of P.O. boxes and making mail routes
longer, resulting in further delayed delivery times.
299
Given their scarcity, many post ofces on reservations are overtaxed and it is common for post
ofces to operate far fewer P.O. boxes that what is needed to fully serve the community.
300
Consequently, many Tribal members must share P.O. boxes with relatives, with upwards of ten
people using the same box in some instances.
301
Further illustrating the shortage, it is common
in families that have secured a P.O. box to pass them from generation to generation, with the
issue of who will inherit the P.O. box becoming a discussion when the holder passes away.
302
Under these circumstances, important mail may be lost, brought home by the wrong recipient,
or misplaced for long periods of time.
303
Worse yet, Tribal members have had issues with USPS
ofcials prohibiting them from sharing P.O. boxes, even when there are no additional boxes
297 See Schroedel, et al., Structural Racism, the USPS, and VBM, supra note 289 at 121-25.
298 See id.
299 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes
(Apr. 30, 2024).
300 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business Council,
in Seabrook, Wash. (Mar. 11, 2024); Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South
Dakota House of Representatives for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne”
Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the
Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17,
2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration
for Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the
Blackfeet Tribal Council, Member of the Montana House of Representatives for the 15th District (May 1, 2024); Telephone
Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
301 See supra note 300 (listing sources).
302 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of
Representatives for the 27th District, in Rapid City, S.D. (Apr. 16, 2024).
303 Id.
Native peoples living on
reservations have less
access to postal services
than other Americans,
even when compared
to individuals living in
rural areas outside of
reservations.
PART III: Present Barriers to Political Participation 51
available.
304
On the Quinault Nation, which shares geography with Washington State, the post
ofce most Tribal citizens use recently hired a new postmaster who has begun to reject mail
addressed to any recipient other than the named holder of the P.O. box, despite being aware
that there are no available P.O. boxes and Tribal members share because it is their only option
for personal mail delivery.
305
Some Tribal members simply do not have a P.O. box:
If people do not have a post ofce box, whether due to cost or the limited
number of boxes available, they will need to rely upon “general delivery” to
obtain their mail. This means the post ofce or postal provider holds the letter
for thirty days. If it is not picked up within that time, the mail is returned to the
sender or thrown out.
306
Perplexingly, these barriers exist even when the reservation is fully addressed.
307
On the
Quinault Nation, for example, almost all homes have a standard numbered street address that
Tribal members can use in interactions with Tribal and nontribal government services, including
emergency responders.
308
Even so, the USPS does not deliver mail to reservation homes.
309
This can complicate voting in a state like Washington where elections are conducted primarily
by mail because voters on the Quinault Nation must travel to the post ofce to access their
unvoted ballot or have access to a printer to print a replacement, rather than simply picking
it up in their mailbox.
310
The lack of home delivery on addressed reservations is particularly
troubling because home mail delivery makes voting services more accessible while providing
well-paying and secure jobs in the community.
Bans on community ballot collection compound each of these barriers for Native voters.
Because mail services are inaccessible for many individuals living on Tribal lands, Tribal
members commonly ask their relatives or other trusted
community members to pick up and deliver their mail
for them.
311
This community ballot collection includes
assistance with mail ballots.
312
However, numerous states,
including several with large Native populations, have placed
restrictions on who can collect or return a mail ballot and how
304 See Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller,
Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024).
305 See id.
306 Schroedel, et al., 2020 Election and VBM, supra note 289 at 198.
307 See supra note 300 (listing sources).
308 See Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller,
Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024).
309 See id.
310 See id.
311 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Roundtable
on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
312 See id.
Bans on community ballot
collection compound each of
these barriers for Native voters.
52 Voting for Native Peoples: Barriers and Policy Solutions
many mail ballots each designee is permitted to handle.
313
In Montana, for example, the state
legislature has repeatedly attempted to severely restrict community ballot collection, but
courts have prevented these efforts due to the disproportionate harm the restrictions would
inict on Native communities that rely heavily on community ballot collection to exercise their
right to vote.
314
Striking down Montana’s ban on community ballot collection, a trial court found that such
bans, combined with the high costs of voting for Native Americans, create severe burdens on
the right to vote:
[A] panoply of socioeconomic factors—the result of centuries of discrimination
against Native Americans—make it more difcult for Native Americans
living on reservations to register and vote. These include higher poverty and
unemployment rates, worse health outcomes, worse educational outcomes,
including much lower high school and college graduation rates, less internet
access, lack of home mail delivery, less stable housing, higher homelessness
rates, and overrepresentation in the criminal justice system.
Native Americans living on reservation live, on average, farther away from the
post ofce, DMV ofce, and county seats as compared to the general Montana
population. Native Americans are also less likely to have access to working
vehicles or money for gas to travel those distances. And Native Americans are
disproportionately less likely to have home mail delivery.
Because Native American voters already face these high costs to voting— both
in person and by mail—they rely more heavily on organizations to collect and
convey their ballots than the general population. Consequently, restricting
ballot collection “disproportionately harms . . . Native Americans in rural tribal
communities” because “Native Americans living on reservations rely heavily on
ballot collection efforts in order to vote in elections,” in large part “due to lack
of traditional mailing addresses, irregular mail services, and the geographic
isolation and poverty that makes travel difcult” for these Native American
voters.
315
313 See Nat’l Conf. State Leg., Ballot Collection Laws, https://www.ncsl.org/elections-and-campaigns/table-10-ballot-
collection-laws.
314 See Native American Rights Fund, 2021 Laws that Limit Native Voter Participation (Western Native Voice v. Jacobsen),
https://narf.org/cases/2021-montana-voter-laws/.
315 Western Native Voice v. Jacobsen, No. DV 21-0451 at 179-80 ¶ 597-99 (Sept. 30, 2022) (available at https://www.narf.org/
nill/documents/20220930wnv-v-jacobsen-order.pdf) (quoting Western Native Voice v. Stapleton, No. DV 20-0377, at 48,
¶ 20 (Mont. Dist. Ct. Sept. 25, 2020)). The Montana Supreme Court has also found that bans on community ballot collection
have a “disproportionate impact on Native American voters.” Driscoll v. Stapleton, 2020 MT 247, ¶ 22, 401 Mont. 405, 416,
473 P.3d 386, 393.
PART III: Present Barriers to Political Participation 53
Given the frequent inaccessibility of mail services to Native voters, Tribal leaders stress the
importance of accessible alternatives for receiving and returning ballots by mail.
316
These
alternatives include robust in-person voting options on Tribal lands, both on Election Day
and during an early voting period leading up to Election Day, conveniently-placed ballot drop
boxes, and laws that allow relatives and trusted designees to pick up and return mail ballots
for voters who have trouble doing so themselves.
317
316 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business Council,
in Seabrook, Wash. (Mar. 11, 2024); Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South
Dakota House of Representatives for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne”
Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the
Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17,
2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration
for Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the
Blackfeet Tribal Council, Member of the Montana House of Representatives for the 15th District (May 1, 2024); Telephone
Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
317 See supra note 316 (listing sources).
54 Voting for Native Peoples: Barriers and Policy Solutions
Disparate Impact of Voter Identification Laws on Tribal Citizens
Throughout the past decade, several states have enacted, implemented, or enforced voter
identication laws, including documentation requirements to register to vote and to cast a
ballot in person or by mail, that abridge the right of Native peoples to participate fully and
equally in the nontribal political process.
318
While all 50 states and Washington, D.C. use
at least one method to conrm voters’ identities, in 36 states voters are asked to show
identication at the polling place before casting a ballot.
319
In 12 states, the identication
requirement is a “strict” one, meaning that “[v]oters without acceptable identication must
vote on a provisional ballot and also take additional steps after Election Day for it to be
counted.”
320
And in nine of the states with strict ID requirements, the ID must also contain a
photo of the voter.
321
Often, when a state implements a voter identication law, Tribal ID is not automatically included
among the types of qualifying identication.
322
Indeed, Tribal ID is only formally recognized as
an acceptable form of voter ID in 16—or less than half—of the 36 states with voter ID laws.
323
Some states expressly preclude Tribal ID from the
forms of valid identication, mandating that voter
ID be issued by the U.S. or state government.
324
Perversely, numerous states that either prohibit or
do not expressly recognize Tribal ID do explicitly
permit voters to use concealed carry and hunting
licenses as valid voter identication.
325
Even more states refuse to recognize Tribal IDs that are issued by a Tribal nation located
outside of the state where the Tribe is located.
326
In Wisconsin, for example, voters may use
Tribal ID, but only if it is “issued by a federally recognized Indian tribe in Wisconsin.”
327
This
can be particularly problematic for voters who are descendants of one Tribal nation and live
318 See oBStaCleS at eveRy tURn, supra note 225 at 73-78; white hoUSe RePoRt, supra note 290 at 21-22; Native American Voting
Rights: Exploring Barriers and Solutions, Hearing Before the H. Comm. on House Administration, 116th Cong. (Feb. 11, 2020)
id. (written statement of Patty Ferguson Bohnee at 11-12); Roundtable on
Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb. 19, 2024); Roundtable
on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Phone Interview with Nicole Donaghy, Hunkpapa
Lakota, Executive Director, North Dakota Native Vote (Jun. 17, 2024).
319 See nat’l Cong. State Leg., Voter ID Laws (updated Feb. 2, 2024), https://www.ncsl.org/elections-and-campaigns/voter-
id#toggleContent-15991 [hereinafter “NCSL, Voter ID”].
320 Id.
321 See id.
322 See oBStaCleS at eveRy tURn, supra note 225 at 75-76; Native American Voting Rights: Exploring Barriers and Solutions,
Hearing Before the H. Comm. on House Administration
at 8-12); id. (written statement of Patty Ferguson Bohnee at 11-12).
323 See NCSL, Voter ID, supra note 319 (listing requirements imposed by state voter ID laws).
324 See id.
325 See id.
326 See oBStaCleS at eveRy tURn, supra note 225 at 75.
327 wiSC. eleCtionS Comm’n, ACCePtaBle Photo idS, https://myvote.wi.gov/Portals/0/Documents/AcceptablePhotoIDs.
pdf?ver=vS9TnMVULlI9Yi0mGe-P0g%3D%3D.
Tribal ID is only formally recognized as
an acceptable form of voter ID in 16—or
less than half—of the 36 states with
voter ID laws.
PART III: Present Barriers to Political Participation 55
on that Tribal nation’s lands in the state where are they are a qualied voter, but are citizens of
different Tribal nation outside of the state.
Some states also impose, or have attempted to impose, burdensome requirements for the
contents of a valid voter ID, precluding any Tribal ID from qualifying, even if a state formally
lists Tribal ID among the valid types of identication.
328
These include requirements that
identication list the address of the voter or voter registration applicant’s residence, despite
the fact that many Tribal citizens living on Tribal lands do not have a standard address at their
home.
329
Instead, many Tribal IDs either list the holder’s P.O. box or list no address at all.
330
For example, in 2022, Arizona passed House Bill 2492, a bill that, among other discriminatory
requirements, required voter registration applicants to provide documentary proof of location
of residence (DPOR) before becoming registered to vote.
331
Advocates who challenged the law
in court feared that the law would effectively bar eligible voters whose homes do not have
standard numbered street addresses—that is, most Tribal citizens living on reservations
in Arizona—from registering to vote because no documents would list their (nonexistent)
residential address.
332
Lawmakers disregarded the impact such a requirement could have on
Native voters when they passed House Bill 2492—in 2006, the Inter Tribal Council of Arizona
and several Tribal nations successfully challenged the state’s voter ID law that mirrored House
Bill 2492’s requirements, resulting in the Secretary of State of Arizona adopting procedures
that would allow Tribal citizens to vote with a Tribal ID that does not contain a standard
residential street address.
333
In a 2023 lawsuit brought by Tribal nations, the U.S. Department
of Justice, and nonprot organizations, a federal district court decided—following a motion by
plaintiffs and Arizona’s Governor and Secretary of State—that under Arizona’s law, as written,
328 See oBStaCleS at eveRy tURn, supra note 225 at 77.
329 See supra
330 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business
of Legal Counsel, and Willow Howard, Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); Interview with Peri
Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th District,
in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D.
(Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and
Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of the Rosebud
Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17,
2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024);
Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House
of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic Engagement Director,
Wisconsin Conservation Voters (May 13, 2024).
331 See A.R.S. § 16-123.
332 See Amended Complaint, Living United for Change in Arizona v. Hobbs, ECF No. 67, No. 2:22-cv-000509 (D. Ariz. Jul. 18,
2022).
333 See Joint Stipulation, ECF No. 749, Gonzales v. Arizona, No. CV 06-1268-PHX-ROS (D. Ariz. Apr. 18, 2008).
56 Voting for Native Peoples: Barriers and Policy Solutions
Tribal ID satised the DPOR requirement, regardless of whether it included a street address.
334
While Native voters in Arizona are now able to register to vote under the Court’s interpretation
of House Bill 2492, the victory took more than a year of resource-intensive litigation by Tribal
nations.
North Dakota passed a voter ID law in 2013, and again amended it in 2017, imposing similar
burdens, requiring voters to present an ID at the polling place that included the voter’s current
street address.
335
North Dakota lawmakers passed the bill even though most reservations
sharing geography with the state were not addressed and voters whose homes did have
addresses commonly did not know what their address was because of the state and counties’
haphazard 9-1-1 addressing program.
336
Only after years of litigation did the state agree to
permit voters to use Tribal ID and supplementary documentation from Tribal governments
designating a voter’s place of residence within the Tribal nation’s jurisdiction when casting a
ballot.
337
Finally, even where state law permits Tribal ID as a valid form of voter identication, outright
discrimination by poll workers and other election ofcials—or deciencies in poll worker
training—can mean that Native voters attempting to use Tribal ID are improperly turned away
at the polling place.
338
In Roosevelt County,
Montana, local ofcials have persistently
refused to accept Tribal ID from voters from the
Fort Peck Tribes after the nation changed the
design of its identication card.
339
And this is
not because the County is unfamiliar with Fort
Peck’s new Tribal ID—County ofcials continue
to turn away Fort Peck citizens even after the
Tribal nation shared examples of valid Fort
Peck ID with the County.
340
In North Dakota, even after the state reached a settlement agreement in the challenge
to its voter ID law, purportedly requiring election ofcials to accept Tribal IDs at polling
places regardless of whether the ID includes a standard address, voters on the Spirit Lake
Nation continue to be barred from the ballot box when they attempt to vote with Tribal ID.
341
In Wisconsin, there have been reports of “many Native people . . . being turned away,” with
334 See Mi Familia Vota v. Fontes, __ F.3d __, No. CV-22-00509-PHX-SRB, 2023 WL 8181307, at *18 (D. Ariz. Sept. 14, 2023); Mi
Familia Vota v. Fontes, __ F.3d __, No. CV-22-00509-PHX-SRB, 2024 WL 862406 (D. Ariz. Feb. 29, 2024).
335 See Campaign Legal Center, Cases and Actions: Spirit Lake Tribe, et al. v. Jaeger (updated Apr. 13, 2021), https://
campaignlegal.org/cases-actions/spirit-lake-tribe-et-al-v-jaeger.
336 Id.
337 See id.; Consent Decree, Brakebill v. Jaeger, No. 1:18-cv-00222 (D.N.D. Apr. 27, 2022).
338 See oBStaCleS at eveRy tURn, supra note 225 at 76.
339 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
340 See id.
341 See Consent Decree, Brakebill v. Jaeger, No. 1:18-cv-00222 (D.N.D. Apr. 27, 2022); Phone Interview with Nicole Donaghy,
Hunkpapa Lakota, Executive Director, North Dakota Native Vote (Jun. 17, 2024); c.f., Expert Rep. of Daniel McCool, Ex. 18,
Intervenor Defs. Mot. for Summ. J., ECF No. 108, Walen v. Burgum, No. 1:22-cv-00031 (D.N.D. Feb. 28, 2022).
Even where state law permits Tribal ID as a
valid form of voter identication, outright
discrimination by poll workers and other
election ofcials—or deciencies in poll
worker training—can mean that Native voters
attempting to use Tribal ID are improperly
turned away at the polling place.
PART III: Present Barriers to Political Participation 57
poll workers telling prospective voters that their Tribal IDs were invalid.
342
Not only does this
treatment violate Native voters’ rights under state and federal law, it also discourages them
from participating in the future
343
—perhaps the very purpose of such treatment by the state.
States’ and localities’ refusals to accept Tribal ID as a valid form of voter identication
makes voting unduly burdensome for many eligible Native voters.
344
Indeed, identication
issued by a state government can be “unreasonably difcult for Native Americans to obtain.”
345
For some Tribal members, the price of a state-issued identication is prohibitively expensive.
346
Others, like elders and unhoused Tribal members, lack the requisite documentation needed to
obtain nontribal identication, such as a birth certicate.
347
Moreover, state agencies where
Native voters can apply for a state ID, such as the Department of Motor Vehicles (DMV), are
often located far from Tribal lands.
348
Some Tribal members report having to travel up to 90 miles to reach the nearest consistently
open DMV—a trip that can be prohibitively expensive for individuals with low incomes and
those living below the poverty line.
349
Moreover, when Native peoples access services at
nontribal governmental agencies, they often face outright hostility from workers, further
heightening the burden of obtaining identication.
350
Finally, states’ refusals to recognize
Tribal ID as valid identication can also cause voter confusion, especially for voters from Tribal
nations that share geography with or have communities in more than one state, leading to a
confusing situation wherein Tribal members on one side of a state line can use their Tribal ID to
vote while those from the same community on the other side of state line cannot.
351
342 oBStaCleS at eveRy tURn, supra note 225 at 76.
343 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
344 See oBStaCleS at eveRy tURn, supra note 225 at 73-75.
345 Id. at 73.
346 Id. at 74.
347 Id.
348 Id. at 73.
349 Id.
350 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe,
in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated
Salish and Kootenai Tribes (Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet
Tribal Council, Member of the Montana House of Representatives for the 15th District (May 1, 2024).
351 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024) (describing voter confusion when Tribal citizens living in different states must comply with different voting
laws).
58 Voting for Native Peoples: Barriers and Policy Solutions
Inadequate Language Assistance
The failure of states and localities to provide accessible voting and voter education materials
in Indigenous languages hampers the ability of Native peoples to register to vote, understand
the issues and candidates they are voting on, access the polls, and cast a meaningful ballot.
352
More than a quarter (27.8 percent) of Native Americans aged ve or older speak a language
other than English in their home.
353
Of those who speak another language at home, 17.8 percent
(or 5.0 percent of the total Native American population
aged ve or older) speak English less than “very
well.”
354
For these eligible voters, having voter education
materials, voter registration forms, ballots, and oral
assistance in their Indigenous language can be crucial
to understanding how to register to vote and cast a
meaningful ballot, especially when it comes to confusing
voter requirements or lengthy state or local ballot
initiatives.
355
Moreover, while many Tribal members who
speak an Indigenous language as their primary language
can speak and comprehend English, these eligible voters often understand concepts more
completely in their primary language, making them more likely to fully participate in the political
process when materials are available to them in their primary language. Unfortunately, few
states and localities offer robust assistance in Indigenous languages, sometimes in violation of
federal law.
Existing Federal Protections
Federal law provides important, but inadequate, protections for Indigenous languages.
356
This
is in part because existing federal protections only extend to larger populations whose primary
language is not English.
357
Section 203 of the Voting Rights Act of 1965 (VRA) is the primary
existing federal law protection for voters whose primary language is not English. Section 203
mandates that certain jurisdictions with signicant non-English speaking populations provide
352 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on Voting Barriers
and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election Administration for
Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal
Citizens in Montana (Apr. 29, 2024); oBStaCleS at eveRy tURn, supra note 224 at 49-63; white hoUSe RePoRt, supra note 289 at
14-15.
353 U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates: Nativity by Language Spoken at Home by
Ability to Speak English for the Population 5 Years and Over (American Indian and Alaska Native Alone), B16005C. This
estimate is for the population that self-reported their race as “American Indian or Alaska Native Alone” and reported being
born in the United States. Because this report primarily concerns the relationship between the federal government and
federally recognized Tribal nations, the authors have excluded the respondents categorized as “Foreign Born” to ensure
the statistics do not capture Indigenous respondents from nations outside the United States.
354 Id.
355 See supra note 352 (listing sources).
356 oBStaCleS at eveRy tURn, supra note 225 at 50-53 (discussing decreasing language coverage under the Voting Rights Act).
357 See 52 U.S.C. § 10503(b)(2)(A) (formula).
Having voter education materials,
voter registration forms, ballots, and
oral assistance in their Indigenous
language can be crucial to
understanding how to register to vote
and cast a meaningful ballot.
PART III: Present Barriers to Political Participation 59
all voting materials that are provided in English—including voter education materials,
358
forms,
notices, and ballots—in specic non-English languages.
359
Pursuant to Section 203, a state or political subdivision must provide voting materials in
other languages (i.e., is “covered” by Section 203) if, based on data from the Census Bureau’s
American Community Survey (ACS), the illiteracy
360
rate of a population in that jurisdiction
whose primary language is one other than English is greater than the national illiteracy
rate and the jurisdiction meets one of the following: (1) greater than 5 percent of the voting
age citizens
361
of that state or political subdivision consider that same language other than
English their primary language and have limited English prociency;
362
(2) greater than
10,000 voting age citizens in that political subdivision consider that same language other than
English their primary language and have limited English prociency;
363
or (3) in a political
subdivision that shares geography with a reservation, greater than 5 percent of the Native
voting age population of that reservation consider that same language other than English
their primary language and have limited English prociency.
364
Importantly, Section 203
provides an exception for Indigenous languages that are “historically unwritten,” permitting
states or political subdivisions to forgo written assistance and materials, and only “furnish
oral instructions, assistance, or other information relating to registration and voting.”
365
The
Census Bureau publishes these coverage determinations every ve years.
366
Section 208 of the VRA further requires states and localities to permit “[a]ny voter who
requires assistance by reason of blindness, disability, or inability to read or write” to be “given
assistance by a person of the voter’s choice.”
367
This provision protects the right of voters
with limited English prociency to bring along an assistant of their choice, including trusted
relatives or friends.
Unmet Needs Under Federal Law
While Section 203 of the VRA provides important protections for minority language speakers,
its coverage for Indigenous languages often falls below what is needed to guarantee the
right to effectively participate in federal elections for Native peoples for several reasons.
368
Importantly, many Indigenous language speakers are left without protections when the
358
or information relating to the electoral process, including ballots[.]” 52 U.S.C. § 10503(b)(3)(A).
359 See 52 U.S.C. § 10503(c).
360
361 Voting age citizens are U.S. citizens who are 18 years or older (i.e., old enough to vote in federal elections).
362 See
English adequately enough to participate in the electoral process[.]” 52 U.S.C. § 10503(b)(3)(B).
363 See 52 U.S.C. § 10503(b)(2)(A). This provision mandates coverage only for political subdivisions. States cannot be
subjected to coverage based on the 10,000-citizen threshold. Id.
364 See id.
365 See 52 U.S.C. § 10503(c).
366 See 52 U.S.C. § 10503(b)(2)(A).
367 52 U.S.C. § 10508.
368 See oBStaCleS at eveRy tURn, supra note 225 at 49-53; white hoUSe RePoRt, supra note 290 at 14-15.
60 Voting for Native Peoples: Barriers and Policy Solutions
state or locality in which they vote or the language they speak is not covered by Section
203 because the population estimates (sometimes erroneously) show that the community
of Indigenous language speakers with limited English prociency is too small to meet the
law’s requirements.
369
While some local jurisdictions became newly covered by Section 203
following the Census Bureau’s 2021 determinations, the overall trend since 2002 has been one
of decreasing coverage.
370
Sometimes, the lack of Section 203 coverage is simply caused by the population of Indigenous
language speakers with limited English prociency being smaller than what would be covered
under Section 203.
371
However, even when the Indigenous language speaking population is
small, the provision of Indigenous language assistance by states or localities is a critical factor
in ensuring the political process is equally accessible to all eligible voters.
372
Often, Tribal
members who have limited English prociency come from the same communities that face
multiple other obstacles to accessing the ballot, including through geographic isolation and
barriers related to socioeconomic conditions.
373
Moreover, providing materials in Indigenous
languages also helps make voters who speak an Indigenous language as their primary
language but who speak and understand English better understand what they are voting for
and feel more welcome at the polling place.
374
This makes Indigenous language assistance a
critical tool in improving voter turnout for Native peoples.
375
Importantly, because of its history of Indigenous language suppression,
376
the federal
government has a duty to work vigorously to ensure Native peoples receive sufcient language
assistance. Indeed, while many Tribal nations now operate robust language protection and
revitalization programs, today’s numerically smaller populations of Indigenous language
369 See oBStaCleS at eveRy tURn, supra note 225 at 50-53. For coverage determinations, see Voting Rights Act Determinations
of 2006, Determinations Under Section 203, 86 Fed. Reg. 69611 (Dec. 8, 2021); Voting Rights Act Determinations of
2006, Determinations Under Section 203, 81 Fed. Reg. 87532 (Dec. 5, 2016); Voting Rights Act Determinations of
2006, Determinations Under Section 203, 76 Fed. Reg. 63602 (Oct. 13, 2011); Voting Rights Act Determinations of 1992,
Determinations Under Section 203, 67 Fed. Reg. 48871 (Jul. 26, 2002).
370 See U.S. Census Bureau, Section 203 Comparison Tables: Covered Jurisdiction Count by State, https://www2.census.gov/
programs-surveys/decennial/rdo/datasets/2021/2021_Section203-Determinations/Sec203_comparisons_2021_revised.
pdf. Since 2002, entire languages have fallen out of coverage, while various jurisdictions have oscillated between being
covered and not being covered depending on the year. See id.
371 See oBStaCleS at eveRy tURn, supra note 225 at 50 (“Some of the coverage loss may have also been attributable to the
Indian coverage in some of the earlier Section 203 determinations.”).
372 See oBStaCleS at eveRy tURn, supra note 225 at 52-53.
373 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
Howard, Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024).
374 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Phone Interview with Anthony
Yakama Nation (Mar. 22, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana
(Apr. 29, 2024).
375 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony
of Gabriella Cásarez-Kelly, Pima County Recorder, Citizen of the Tohono O’odham Nation.
376 See supra Part I, A History of the Relationship between Native Nations and the United States and the Path to U.S.
Citizenship.
PART III: Present Barriers to Political Participation 61
The United States owes every effort
to Tribal nations and Native peoples
to rectify, to the extent possible, the
federal government’s destructive
attempts to eradicate Indigenous
languages.
speakers can be directly attributed to concerted federal and state government efforts in
the late-nineteenth through mid-twentieth centuries to forcibly assimilate Native peoples
into non-Native culture and society.
377
The United States owes every effort to Tribal nations
and Native peoples to rectify, to the extent possible, the federal government’s destructive
attempts to eradicate Indigenous languages.
In many areas, communities of Indigenous language
speakers might be sufciently populous to trigger
coverage in a local jurisdiction but the ACS—which
is based on samples, rather than the total population
like the census—simply does not capture them.
378
According to a report by the Native American Rights
Fund (NARF), “census undercounts and [errors
resulting from] statistical sampling . . . can have a
disproportionate impact on very small American Indian
and Alaska Native voting-age populations.”
379
This can
be due to the sampling error that is inherent in surveys of small populations as well as non-
sampling error, like lack of coverage and low response rates.
380
The disproportionate impact
can be especially severe for “voters [with limited English prociency] who reside on more
sparsely populated and geographically isolated reservations,” and who are more difcult for
the Census Bureau to reach.
381
377 See BRyan newland, BUReaU oF indian aFFaiRS, FedeRal indian BoaRdinG SChool initiative inveStiGative RePoRt 7, 39-40, 51, 54 (May
2022), . In a 2022 in-
depth investigation into the harms caused by boarding schools for Native children, the Bureau of Indian Affairs found:
The Federal Indian boarding school system deployed systematic militarized and identity-alteration
methodologies to attempt to assimilate American Indian, Alaska Native, and Native Hawaiian children
through education, including but not limited to the following: (1) renaming Indian children from Indian
to English names; (2) cutting hair of Indian children; (3) discouraging or preventing the use of American
Indian, Alaska Native, and Native Hawaiian languages, religions, and cultural practices; and (4) organizing
Native Hawaiian children into units to perform military drills.
Id. See also Rebecca Nagle, The U.S. Has Spent More Money Erasing Native Languages than Saving Them, hiGh CoUntRy newS
(Nov. 15, 2019), https://www.hcn.org/issues/51-21-22/indigenous-affairs-the-u-s-has-spent-more-money-erasing-native-
languages-than-saving-them/.
378 See oBStaCleS at eveRy tURn, supra note 225 at 50-51; aRizona State UniveRSity, SandRa day o’ConnoR ColleGe oF law, indian
leGal CliniC, aRizona native vote eleCtion PRoteCtion PRoJeCt: 2018 eleCtion RePoRt 9 (Dec. 15, 2021), https://law.asu.edu/sites/
[hereinafter “ASU 2018 Election Report”].
379 Id. at 50; see also U.S. CenSUS BUReaU, UndeRStandinG and USinG ameRiCan CommUnity SURvey data: what USeRS oF data FoR
ameRiCan indianS and alaSka nativeS need to know (Apr. 2019), https://www.census.gov/content/dam/Census/library/
publications/2019/acs/acs_aian_handbook_2019.pdf [hereinafter “AIAN Data User Handbook”]; CaRolina FRanCo and eRiC
SlUd, CenteR FoR StatiStiCal ReSeaRCh & methodoloGy and methodoloGy diReCtoRate, U.S. CenSUS BUReaU, exeCUtive SUmmaRy:
StatiStiCal methodS FoR 2021 CoveRaGe deteRminationS UndeR votinG RiGhtS aCt SeCtion 203(B) (Oct. 25, 2021), https://
www2.census.gov/programs-surveys/decennial/rdo/about/voting-rights-determination/2021_Section203/Sec203_
ExecSummary2021_v3.pdf.
380 See aian data USeR handBook, supra note 379 at 46-52, 69-71.
381 oBStaCleS at eveRy tURn, supra note 225 at 50; see also Deborah Stempowski, U.S. Census Bureau, Counting Every Voice:
Understanding Hard-to-Count and Historically Undercounted Populations (nov. 7, 2023), https://www.census.gov/newsroom/
blogs/random-samplings/2023/10/understanding-undercounted-populations.html#:~:text=Hard%2Dto%2DCount%20
Populations,to%20adapt%20to%20count%20everyone.
62 Voting for Native Peoples: Barriers and Policy Solutions
For example, a lack of language protections creates a substantial barrier for citizens of the
Apsáalooke (Crow) Nation,
382
which shares geography with the State of Montana and Big Horn
County, Treasure County, and Yellowstone County.
383
Many citizens of the Apsáalooke Nation
speak Apsáalooke as their rst and primary language.
384
However, neither Montana nor the
relevant counties are required under Section 203 to provide voting materials in the Apsáalooke
language.
385
This means that in order to vote, or even register, Apsáalooke speakers often
must seek assistance from relatives or other trusted persons, foregoing a private ballot.
386
Elders, who commonly face additional barriers including limited mobility and access to
transportation, are often the most impacted by the failure to provide language assistance.
387
Noncompliance with Federal Law
Even where local jurisdictions are required by the VRA to provide voting materials in
Indigenous languages, what is actually offered is often insufcient.
388
Since the passage
of the language assistance provisions of the VRA in 1975, there has been widespread and
persistent noncompliance with the requirements of Sections 203 and 208.
389
Remarkably,
some Section 203 covered localities have knowingly refused to provide Indigenous language
assistance in voting, despite being required by federal law to do so.
390
Language-based barriers to the ballot are particularly stark
for citizens of the Navajo Nation.
391
Numerous counties that
share geography with the Navajo Nation are covered under
Section 203, but Navajo citizens, and especially elders, face
persistent barriers to accessing language assistance.
392
This
is particularly true for materials related to ballot initiatives,
which often have a confusing language structure and
unfamiliar terminology.
393
As a result, the Navajo Nation must
382 The Apsáalooke Nation is federally recognized as the Crow Tribe of Montana. See 89 Fed. Reg. 944 (Jan. 8, 2024).
383 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
384 See id.
385 See Voting Rights Act Amendments of 2006, Determinations Under Section 203, 86 Fed. Reg. 69611 (Dec. 8, 2021).
386 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
387 See id.
388 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024); oBStaCleS at eveRy tURn, supra note 225 at 53-63.
389 See oBStaCleS at eveRy tURn, supra note 225 at 57 (describing denials of Section 208-required assistance in Alaska,
Washington, and Arizona); id. at 58-63 (describing Section 203 noncompliance in Alaska, Arizona, New Mexico, and San
Juan County, Utah); native vote - eleCtion PRoteCtion PRoJeCt: 2016 eleCtion RePoRt, indian leGal CliniC, SandRa day o’ConnoR
ColleGe oF law, aRizona State UniveRSity 34-47 (Mar. 6, 2018),
Election%20Report.pdf [hereinafter “aSU 2016 eleCtion RePoRt”] (describing noncompliance with Section 203 throughout
Arizona); MCCool, et al., native vote, supra note 73.
390 See aSU 2016 eleCtion RePoRt, supra note 389 at 47.
391 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024).
392 See id.
393 See id.; oBStaCleS at eveRy tURn, supra note 225 at 62-63 (reporting that “Navajo voters in San Juan County[, Utah] have
never received any information in Navajo about ballot questions before the election.”).
Some Section 203 covered
localities have knowingly
refused to provide Indigenous
language assistance in voting,
despite being required by
federal law to do so.
PART III: Present Barriers to Political Participation 63
often expend its own resources to provide voter education to its citizens in Navajo because the
materials provided by nontribal governments are either inadequate or nonexistent.
394
In 2016, the Navajo Nation Human Rights Commission sued San Juan County, Utah to force
local ofcials to comply with Section 203 after years of persistent failures to comply with
federal law and offer materials and translators in Navajo.
395
After two years of litigation,
the county agreed to a consent decree.
396
Elsewhere on Navajo Nation, in 2018, Arizona and
numerous counties covered by Section 203 made “no effort” to provide a Navajo translation
for a signature requirement on mail ballots, giving Navajo language speakers less of an
opportunity to vote by mail and have their vote counted than English speakers.
397
Navajo
language materials remain inaccessible to many Navajo citizens throughout Navajo Nation to
this day.
398
Some jurisdictions also improperly rely on Section 203’s exception for “historically unwritten”
Indigenous languages in an attempt to evade the provision’s requirements.
399
This exception,
however, is not intended to justify the provision of incomplete assistance.
400
Rather, as a
federal court observed:
Compliance with the VRA’s bilingual provisions is measured by an
“effectiveness” standard. The critical question is whether materials are
provided in a such a way that voters from applicable language groups are
“effectively informed of and participate effectively in voting-connected
activities” and whether a covered jurisdiction has taken “all reasonable steps to
achieve that goal.”
401
394 Id.
395 See Complaint, Navajo Nation Human Rights Commission v. San Juan County, Utah, ECF No. 2, No. 2:16-cv-00154 (D. Utah
Feb. 25, 2016); Consent Decree, Navajo Nation Human Rights Commission v. San Juan County, Utah, ECF No. 199, No.
2:16-cv-00154 (D. Utah Feb. 22, 2018); Roundtable on Voting Barriers and Election Administration on the Navajo Nation,
Part I: Sheep Springs Chapter House (Feb. 19, 2024), Testimony of Angelo Baca (Navajo and Hopi), Cultural Resources
396 See Consent Decree, Navajo Nation Human Rights Commission v. San Juan County, Utah, ECF No. 199, No. 2:16-cv-00154.
397 aSU 2018 eleCtion RePoRt, supra note 389 at 24.
398 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024).
399 See 52 U.S.C. § 10503(c); oBStaCleS at eveRy tURn, supra
203 by erroneously claiming that Alaska Native languages are “historically unwritten”).
400 In Nick v. Bethel, a federal district court determined that there is no blanket exception to providing Indigenous language
materials in a written form. See Nick v. Bethel, No. 3:07-CV-0098 TMB, 2008 WL 11429390, at *3 (D. Alaska July 23, 2008).
Instead:
the portion of the text regarding Alaska Native languages is conditional; the exemption applies only “. . . if
the predominant language is historically unwritten. . .” If Congress had intended to carve out an exception
for all Alaska Native and American Indian language, there would have been no reason to include the clause
from the written assistance requirements of the VRA for all Alaska Native languages. To do so would violate
on a language-by-language basis. In other words, a language is only exempt if found to be “historically
unwritten,” whatever that term may mean in the context of the VRA.
Id.
401 Nick v. Bethel, No. 3:07-CV-0098 TMB, 2008 WL 11456134, at *4 (D. Alaska July 30, 2008) (quoting 28 C.F.R. § 55.2).
64 Voting for Native Peoples: Barriers and Policy Solutions
At times, this might even require the provision of written materials in languages deemed
“historically unwritten.”
402
A report by NARF explains that written materials are important
because “the absence of materials written in American Indian and Alaska Native Languages
makes it much more difcult to provide complete, accurate, and uniform translations of
English-language voting materials.”
403
In particular, authorities forcing voters to rely on
recorded oral translations is especially problematic because recordings are often lengthy and
can be inaccessible to voters who lack the necessary technology to play them, leading some
voters to avoid using the translations altogether.
404
For decades, Alaska has
failed to provide language assistance materials to Native voters even
though several in-state jurisdictions were covered by the VRA in multiple Native languages.
405
Despite numerous federal court determinations that the state is required to provide language
assistance in Alaska Native languages in Section 203 covered jurisdictions, Alaska continues
to out the VRA’s requirements.
406
Fred Augustine of the Village of Alakanuk, a plaintiff in
one of the challenges, explained through a translator to NARF why language assistance is so
important:
Sometimes I wonder if my votes count. Poll workers speak to me in English, but I
don’t understand. I didn’t understand any of the ballots but I still voted. We go to
vote and vote, but we don’t know what to do and how to vote.
407
Currently, Alaska is subject to a court-mandated settlement agreement requiring the state to
offer meaningful translation services, translated assistance, and Yup’ik language assistance
in the Dillingham and Kusilvak census areas.
408
402 See oBStaCleS at eveRy tURn, supra note 225 at 53-55.
403 Id. at 55.
404 Id.
405 See id. at 53-55, 58-61. While Alaska was not covered statewide, the state operates all elections and was therefore
subjected to the requirements.
406 Id. at 54-55.
407 Native American Rigths Fund, Native Voting Rights and Language Access (Toyukak v. Dahlstrom), https://narf.org/cases/
toyukak-v-treadwell/.
408 Id.
PART III: Present Barriers to Political Participation 65
Vote Dilution and Racial Gerrymandering
Even where Native voters can cast a ballot, their vote often does not count equally to the
votes of other voters due to dilutive and discriminatory districting schemes or at-large voting
methods of election that violate the U.S. Constitution, federal, or state law.
Existing Federal Protections
The U.S. Constitution and federal law bars states and localities from implementing electoral
systems, including district-based maps and at-large electoral schemes, that are designed with
the intent or have the effect of diluting the voting power of Native peoples. Specically, in an
electoral system where representatives are elected from districts, including congressional
,409
state legislative,
410
and local seats,
411
Article I, Section 2 and the Fourteenth Amendment
of the U.S. Constitution mandates that lawmakers must design districts with roughly equal
population sizes.
412
The Fourteenth Amendment, Fifteenth Amendment, and Section 2 of the Voting Rights
Act prohibit map drawers from intentionally diluting the electoral power of communities of
color, including through district-based and at-large electoral systems
.413
The Fourteenth
Amendment further prohibits lawmakers from adopting a district-based map where race,
rather than other traditional redistricting criteria like the protection of communities of interest,
409 See U.S. ConSt. art. I, sec. 2; Wesberry v. Sanders, 376 U.S. 1, 7-8 (1964) (“[T]he command of Art. I, § 2, that Representatives
be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional
election is to be worth as much as another’s.”) (quoting U.S. ConSt. art. I, sec. 2); id. at 18 (“While it may not be possible to
draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution’s plain objective
of making equal representation for equal numbers of people the fundamental goal for the House of Representatives.
That is the high standard of justice and common sense which the Founders set for us.”); Karcher v. Daggett, 462 U.S. 725,
727 (1983) (declaring a state’s congressional maps unconstitutional “because the population deviations among districts,
although small, were not the result of a good-faith effort to achieve population equality.”).
410 See U.S. ConSt. amend. XIV, § 2; Baker v. Carr, 369 U.S. 186, 237 (1962) (holding that challenges to state legislative districts
based on unequal population size are justiciable under the Fourteenth Amendment); Reynolds v. Sims, 377 U.S. 533, 560-
61 (1964) (“[T]he fundamental principle of representative government in this country is one of equal representation for
equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.”); id. at 568
(“[A]s a basic constitutional standard, the Equal Protection Clause requires that the seats in both houses of a bicameral
state legislature must be apportioned on a population basis. Simply stated, an individual’s right to vote for state legislators
is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens
living on other parts of the State.”); Evenwel v. Abbott, 578 U.S. 54, 64 (2016) (“As history, precedent, and practice
demonstrate, it is plainly permissible for jurisdictions to measure equalization by the total population of state and local
legislative districts.”).
411 See U.S. ConSt. amend. XIV, § 2; Avery v. Midland Cnty., Tex., 390 U.S. 474, 485-86 (1968) (“[T]he Constitution imposes
one ground rule for the development of arrangements of local government: a requirement that units with general
governmental powers over an entire geographic area not be apportioned among single-member districts of substantially
unequal population.”).
412 See U.S. ConSt. art. I, § 2; id. amend. XIV, § 2. The requirement to generally equalize population across electoral districts is
generally rereferred to as the “one person, one vote” principal. See Cornell Law School, Legal Information Institute, One-
Person, One-Vote Rule, https://www.law.cornell.edu/wex/one-person_one-vote_rule. See also Reynolds v. Sims, 377 U.S.
533 (1964) (requiring principle of one-person, one-vote); tennant v. Jefferson Cnty. Comm’n, 567 U.S. 758 (2012) (requiring
congressional districts to have substantially equalized population).
413 See U.S. ConSt. amend. XIV, § 2; 52 U.S.C. § 10301; Gomillion v. Lightfoot, 364 U.S. 339 (1960) Claims brought pursuant
the Fourteenth and Fifteenth Amendment and Section 2’s protections against intentional discrimination are commonly
referred to as “intentional vote dilution” or “intentional discrimination” claims. These are distinct from “racial
gerrymandering” claims, focusing primarily on the nefarious subjective intent of map drawers.
66 Voting for Native Peoples: Barriers and Policy Solutions
was the predominate criteria driving map drawers’ decisions.
414
Finally, and perhaps most
importantly, Section 2 of the VRA prohibits states and localities from adopting district maps
or at-large electoral schemes that have the effect of diluting the voting power of communities
of color, irrespective of the map drawer’s intent.
415
In addition to federal protections, several
states have enacted state law protections against discriminatory electoral systems.
416
414 See Bethune-Hill v. Virginia State Bd. of Elections, 580 U.S. 178, 187 (2017); Cooper v. Harris, 581 U.S. 285, 291-93 (2017).
On May 23, 2024, the U.S. Supreme Court released its decision in Alexander v. South Carolina State Conference of the
NAACP, a racial gerrymandering challenge to South Carolina’s congressional map. See Alexander v. South Carolina State
Conference of the NAACP, 602 U.S. __ (2024). Though its effects have yet to play out in federal court, Justice Samuel
Alito’s decision ignored well-established Supreme Court precedent outlining the racial gerrymandering test and sought
to create a novel evidentiary standard that it unique to plaintiffs of color in these particular types of cases.
415 Allen v. Milligan, 599 U.S. ___, 143 S.Ct. 1487, 1507 (2023) (“Section 2 prohibits States from imposing any ‘standard,
practice, or procedure . . . in a manner which results in a denial or abridgement of the right of any citizen . . . to vote on
account of race or color.’ What that means, § 2 goes on to explain, is that the political processes in the State must be
‘equally open,’ such that minority voters do not ‘have less opportunity than other members of the electorate to participate
in the political process and to elect representatives of their choice.’”). In Thornburg v. Gingles, the Supreme Court laid out
the test to establish a violation of Section 2 when a district-based map or at-large redistricting scheme dilutes the political
See Thornburg v. Gingles, 478 U.S. 30 (1986); Milligan, 143
S.Ct. at 1507.
Gingles preconditions:
compact to constitute a majority in a [legislative] district. . . . Second, the minority group must be able
to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white
minority candidate running unopposed—usually to defeat the minority’s preferred candidate.
Gingles, 478 U.S. at 50-51 (internal citations omitted). See also Bone Shirt v. Hazeltine, 461 F.3d 1011, 1018 (8th Cir. 2006)
compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority
Gingles preconditions, a court then considers the “Senate Factors” to determine
whether, under a totality of the circumstances, the electoral system dilutes the voting strength of a community of color.
The Senate Factors include:
[1.] the history of voting-related discrimination in the State or political subdivision;
[2.] the extent to which voting in the elections of the State or political subdivision is racially polarized;
[3.] the extent to which the State or political subdivision has used voting practices or procedures that tend
to enhance the opportunity for discrimination against the minority group, such as unusually large election
districts, majority vote requirements, and prohibitions against bullet voting;
[4.] the exclusion of members of the minority group from candidate slating processes;
[5.] the extent to which minority group members bear the effects of past discrimination in areas such as
education, employment, and health, which hinder their ability to participate effectively in the political
process;
[6.] the use of overt or subtle racial appeals in political campaigns;
. . .
. . .
members of the minority group[;] and
[9.] that the policy underlying the State’s or the political subdivision’s use of the contested practice or
structure is tenuous may have probative value.
Id. at 44-45.
416 Lata Nott, Protecting the Freedom to Vote Through State Voting Rights Acts (Jan. 4, 2024), https://campaignlegal.org/
update/protecting-freedom-vote-through-state-voting-rights-acts; Movement Advancement Project, State Level Voting
Rights Acts (last visited May 30, 2024), https://www.lgbtmap.org/democracy-maps/state_level_voting_rights_acts.
PART III: Present Barriers to Political Participation 67
U.S. Census
One of the most basic ways in which Tribal citizens’ votes are diluted is through insufcient
and inaccurate population data, which serves as the basis for congressional reapportionment
and congressional, state, and local redistricting.
417
According to the Census Bureau, people
of color and people whose primary language is not English are some of the most difcult
for the census to count and Native Americans living on reservations are “persistently
undercounted.”
418
Indeed, the American Indian and Alaska Native
419
population living on
reservations has been “denitive[ly]” undercounted in at least every census since 1990.
420
In
2020, despite substantial efforts by Tribal nations to work with the Census Bureau to assist
citizens with their responses, like in years past, the census undercounted Native Americans
living on reservations at higher rate than any other racial or ethnic group that the Census
Bureau tracks.
421
The Census Bureau estimates that the census undercounted American Indian
and Alaska Native populations on reservations at a rate of 5.64 percent.
422
This is compared to
an overcount of white respondents at a rate of 1.64 percent.
423
There are several compounding reasons for the signicant undercount on Tribal lands. First,
many of the same barriers that make casting a ballot burdensome for Native peoples also
complicate census response, leading to substantially lower self-response rates on Tribal
lands than outside of Tribal lands.
424
The Census Bureau relies primarily on internet, mail, and
phone for self-response, but Native peoples living on reservations disproportionately lack
access to reliable at-home broadband and timely, convenient USPS mail services, making it
417 See SaRah andRe, anJa Jolin, andy loRenzo-SalinaS, dan viCUña, Common CaUSe oReGon, tRiBal demoCRaCy PRoJeCt, national
ConGReSS oF ameRiCan indianS, StRonGeR toGetheR: native ameRiCanS’ FiGht FoR FaiR RediStRiCtinG 4-5 (2024), https://www.
commoncause.org/oregon/wp-content/uploads/sites/24/2024/05/OR_StrongerTogetherv4.pdf [hereinafter “StRonGeR
toGetheR RediStRiCtinG”].
418 See Deborah Stempowski, U.S. Census Bureau, Counting Every Voice: Understanding Hard-to-Count and Historically
Undercounted Populations (nov. 7, 2023), https://www.census.gov/newsroom/blogs/random-samplings/2023/10/
understanding-undercounted-populations.html#:~:text=Hard%2Dto%2DCount%20Populations,to%20adapt%20
to%20count%20everyone (noting that the Census Bureau considers racial and ethnic minorities and people who speak
languages other than English, amongst others, “hard-to-count populations” and that American Indian and Alaska Native
populations living on reservations are “historically undercounted”).
419 We use this terminology to mirror the language used by the Census Bureau on the decennial census, American
Community Survey, and in its data. Census and American Community Survey (ACS) data on Native peoples is based on
See U.S. CenSUS BUReaU, UndeRStandinG and USinG ameRiCan CommUnity SURvey data:
what USeRS oF data FoR ameRiCan indianS and alaSka native need to know 6 (2019), https://www.census.gov/content/dam/
Census/library/publications/2019/acs/acs_aian_handbook_2019_ch01.pdf.
420 Stempowski, supra note 418; see also Making Indian Country Count: Native Americans and the 2020 Census: Hearing
Before the S. Comm. on Indian Affs., 115th Cong. (2018).
421 Shadie khUBBa, kRiSta heim, and Jinhee honG, U.S. CenSUS BUReaU, national CenSUS CoveRaGe eStimateS FoR PeoPle in the United
StateS By demoGRaPhiC ChaRaCteRiStiCS: 2020 PoSt-enUmeRation SURvey eStimation RePoRt 7 (Mar. 2022), https://www2.census.
gov/programs-surveys/decennial/coverage-measurement/pes/national-census-coverage-estimates-by-demographic-
characteristics.pdf.
422 Id. The census also undercounted Native peoples living outside of Tribal lands, but at a lower rate of 0.86 percent. Id.
423 Id.
424 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
68 Voting for Native Peoples: Barriers and Policy Solutions
harder for them to avail themselves of self-response.
425
In 2020, some Tribal members who
did receive their census invitation by mail and attempted to answer the questionnaire online
had difculties completing the form because it requested the respondent’s address in a
standardized format that is nonexistent on many reservations.
426
Unsurprisingly, the disparities in self-response rates between respondents living on Tribal
lands and the nation at large are striking, with self-response rates on nearly all Tribal
lands throughout the United States falling well below the national self-response rate. In
South Dakota, every single Tribal nation had a self-response rate from citizens living on the
reservation below both the national self-response rate of 67.0 percent and state self-response
rate of 67.5 percent.
427
All but one Tribal nation’s self-response rate fell more than 20
percentage points below the national and state rates—and a majority were well under half.
428
The same is true in Montana, where the only Tribal lands with a self-response rate within 20
percentage points of the national rate was Flathead Reservation, where the Confederated
Salish and Kootenai Tribes are located.
429
Notably, this reservation has a majority non-Native
population due to allotment.
430
In Arizona, most Tribal lands had response rates well below
the statewide rate. Fourteen Tribal nations had self-response rates less than half the national
self-response rate, and only one Tribal nation had a self-response rate at or above the national
425 See U.S. Census Bureau, How the 2020 Census Will Invite Everyone to Respond (Apr. 16, 2020) (noting that almost 95
percent of households receive their census invitation in the mail and most will be asked to respond online); supra Part
III, Inadequate USPS Services and Vote by Mail; id. Transportation and Physical Infrastructure (describing the disparate
internet and USPS service rates on reservations, when compared to areas outside of Tribal lands).
426 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); supra Part III, Lack of Standard Residential Street Addresses
with residents instead using a descriptive address for their physical location and a P.O. Box for mail).
427 See U.S. Census Bureau, 2020 Census: Tracking Self-Response Rates Map (Jan. 28, 2021), https://www.census.gov/library/
visualizations/interactive/2020-census-self-response-rates-map.html [hereinafter “2020 Census: Self Response Rates
Map”].
428 See id. The self-response rates for the Tribal nations sharing geography with South Dakota are: Cheyenne River Sioux
Tribe (29.8 percent), Crow Creek Sioux Tribe (29.7 percent), Flandreau Santee Sioux Tribe (56.0 percent), Kul Wicasa Oyate
(Lower Brule Sioux Tribe) (28.2 percent), Oglala Lakota Nation (23.0 percent), Rosebud Sioux Tribe (24.9 percent), Sisseton
Wahpeton Oyate (42.8 percent), Standing Rock Sioux Tribe (36.5 percent), and Yankton Sioux Tribe (44.6 percent). Id. This
is compared to a nationwide self-response rate of 67.0 percent and 67.5 percent in the state. Id.
429 See id. The self-response rates for the Tribal nations sharing geography with Montana are: Blackfeet Nation (29.4
percent), Chippewa Cree Tribe of the Rocky Boy Reservation (34.8 percent), Confederated Salish and Kootenai Tribes (47.4
percent), Crow Nation (20.6 percent), Fort Belknap Indian Community (32.7 percent), and the Northern Cheyenne Tribe
(17.6 percent). Id. This is compared to a statewide self-response rate of 60.4 percent. Id. Note that the self-response rate
for the Little Shell Chippewa is not reported because the federal government has not recognized a land base for the Tribe
and consequently the census does not report response rates.
430 See U.S. Census Bureau, 2022 American Community Survey, 5-Year Estimates, B02014, B03002. Of the estimated 31,690
people living on the Flathead Reservation, where the Confederated Salish and Kootenai Tribes are located, approximately
61.9 percent are white, while only 33.2 percent are Native American. See also Roundtable on Voting Barriers and Election
Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024) (describing the immense land
loss for the Confederated Salish and Kootenai Tribes caused by allotment).
PART III: Present Barriers to Political Participation 69
average.
431
Most strikingly, not a single citizen of the Havasupai Nation living on the Tribe’s
reservation—located at the base of the Grand Canyon—responded via self-response.
432
While Minnesota led the nation in self-response, with an overwhelming 75.1 percent of
respondents returning their questionnaire statewide, self-response on Tribal lands that share
geography with the state fell well below the national rate.
433
Alaska, where 15.7 percent of the
population is American Indian or Alaska Native, had the lowest self-response rate of the 50
states and the District of Columbia, with just over half (54.7 percent) of households returning
the census questionnaire.
When households do not return the census questionnaire, the Census Bureau attempts to
count them rst through administrative records and then in person through home enumeration
as a part its Nonresponse Followup (NRFU) Program.
434
Importantly, where self-response
rates are low, substantially more resources are required for the NRFU process than in areas
with higher self-response rates, necessitating longer follow up periods and leading to greater
chances of missing individuals or even entire households. While the Census Bureau has
improved its capacity to enumerate Native peoples living on Tribal lands, this community has
historically been one of the hardest for the Census Bureau to accurately count through its
NRFU efforts.
435
Several factors made NRFU less successful on Tribal lands in 2020 than in other areas.
436
First, on some reservations, the Census Bureau failed to employ enumerators who lived in the
431 See 2020 Census: Self Response Rates Map, supra note 427. The Tribal nations with self-response rates less than half
the national rate (i.e., 33.5 percent and below) the Cocopah Indian Tribe (20.9 percent self-response), Colorado River
Indian Tribes (25.5 percent), Fort Yuma Quechan Indian Tribe (29.6 percent), Gila River Indian Community (13.1 percent),
Havasupai Tribe (0.0 percent), Hopi Tribe (19.3 percent), Hualapai Tribe (30.9 percent), Kaibab Paiute Tribe (11.1 percent),
Navajo Nation (22.7 percent), San Carlos Apache Tribe (18.9 percent), Tohono O’odham Nation (19.3 percent), Tonto
Apache Tribe (25.4 percent), White Mountain Apache Tribe, located on the Fort Apache Reservation (26.5 percent), and
the Yavapai-Apache Nation (31.9 percent). Id. This is compared to a statewide self-response rate of 64.1 percent. The only
Tribal nation sharing geography with Arizona that had a self-response rate at or higher than the national self-response
rate was the Ak-Chin Indian Community, which is located in a more urban area, with 69.6 percent of respondents returning
a questionnaire. Id. See also Arizona State University, American Indian Policy Institute, Census Response Tracker for Indian
Country (Arizona), https://aipi.asu.edu/blog/2020/06/census-response-tracker-indian-country-arizona.
432 See 2020 Census: Self Response Rates Map, supra note 427.
433 See 2020 Census: Self Response Rates Map, supra note 427. The self-response rates for the Bois Forte Band of Chippewa
(38.4 percent), Fond Du Lac Band of Lake Superior Chippewa (62.7 percent), Gichi-Onigaming (Grand Portage Band
of Lake Superior Chippewa) (36.7 percent), Leech Lake Band of Ojibwe (34.4 percent), Mille Lacs Band of Ojibwe (41.2
percent), Prairie Island Indian Community (55.2 percent), Red Lake Nation (13.8 percent), Shakopee Mdewakanton Dakota
Community (59.7 percent), Upper Sioux Community Pezihutazizi Oyate (57.4 percent), and White Earth Nation (35.6
percent) fell below the national response rate (67.0 percent) and well below the state response rate (75.1 percent).
434 See ConGReSSional ReSeaRCh SeRviCe, the 2020 deCennial CenSUS: oveRview and iSSUeS (apr. 22, 2019), https://crsreports.
congress.gov/product/pdf/IF/IF11015; U.S. Census Bureau, 2020 Census: Nonresponse Followup (last visited May 14, 2024),
https://www.census.gov/newsroom/press-kits/2020/nonresponse-followup.html; U.S. CenSUS BUReaU, tRiBal ConSUltation
handBook: BaCkGRoUnd mateRialS FoR tRiBal ConSUltationS on the 2020 CenSUS (Fall 2015), https://www.census.gov/content/
dam/Census/library/publications/2015/dec/2020_tribal_consultation_handbook.pdf.
435 See white hoUSe RePoRt supra note 290.
436 See Isaiah Murtaugh, Why Native Americans Don’t Share the Government’s Optimism About the Census, U.S. newS (Oct.
30, 2020), https://www.usnews.com/news/healthiest-communities/articles/2020-10-30/native-americans-fear-census-
undercount-despite-government-optimism.
70 Voting for Native Peoples: Barriers and Policy Solutions
community, were trusted by community members, and understood where people live.
437
This
was in part the result of the Census Bureau’s decision to shift its job applications to a primarily
online format, despite substantial disparities in broadband access on Tribal lands.
438
Troy Heinert, who is Sicangu Lakota,
439
served as the Minority Leader of the South Dakota
Senate from 2019 to 2023. Leader Heinert worked as a eld enumerator on the Rosebud
Sioux Reservation for the 2020 Census, and explained how the Census Bureau’s failure
to hire enumerators who lived on Tribal lands impacted NRFU.
440
According to Heinert, the
ofcials directing the NRFU program were unfamiliar with the reservation, and therefore
designed a NRFU response effort without understanding the makeup and particularities
of the communities on the reservation.
441
While Heinert lives on and is familiar with the
community on one side of the Rosebud Sioux Reservation, he was assigned enumeration on
the other side of the reservation.
442
The Census Bureau assigned another enumerator, who
lives in the area where Heinert was assigned to enumerate, to Heinert’s community.
443
This
lack of familiarity made NRFU more time-consuming and caused the Census Bureau to
undercount households and members of large or multigenerational households on the
Rosebud Sioux Reservation.
444
Enumerators’ familiarity, or lack thereof, with
reservation populations is important for several
reasons.
445
First, Tribal citizens have high levels
of distrust in relation to federal government
437 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu
Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024);
Abigail Weinberg, Native Americans Are Regularly Undercounted in the Census. COVID-19 Will Make It Worse, hiGh CoUntRy
newS (Jul. 3, 2020), https://www.hcn.org/articles/climate-desk-native-americans-are-regularly-undercounted-in-the-
census-covid-19-will-make-it-worse/.
438 See id. (“Another way to engage Native communities would be to hire more Native enumerators. But in 2020, the census
Bureau.”); supra Part III, Transportation and Physical Infrastructure (describing barriers in access to broadband on Tribal
lands).
439 The Sicangu Lakota are federally recognized as the Rosebud Sioux Tribe of the Rosebud Indian Reservation, South
Dakota. See 89 Fed. Reg. 944 (Jan. 8, 2024).
440 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
441 See id.
442 See id.
443 See id.
444 See id.
445 See id.
Having census enumerators from the
community can make Tribal members more
comfortable and encourage participation.
PART III: Present Barriers to Political Participation 71
ofcials.
446
When unfamiliar enumerators working for a federal government agency show up
to the home of a Tribal citizen home requesting personal information, Tribal citizens are often
hesitant to provide the information necessary to complete the enumeration.
447
Having census
enumerators from the community can make Tribal members more comfortable and encourage
participation.
448
Kevin Allis, a citizen of the Forest County Potawatomi Community and the Chief Executive
Ofcer of the National Congress of American Indians, describes how distrust of the federal
government can impact census participation on Tribal lands:
There still exists on many reservations a distrust for government people come
around asking you for all kinds of personal information . . . [An accurate count]
requires having folks that are employed by Census that had access to these
communities, understood these communities, and, more importantly, would be
recognized by these communities as reliable people to provide information.
449
In addition to fostering trust, hiring census workers who live on the Tribal lands they are
assigned to enumerate means that enumerators are more likely to be familiar with where
community members live.
450
This is particularly important on rural reservations where homes
often do not have standard street addresses and are difcult to navigate using internet-based
GPS.
451
446 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business Council,
in Seabrook, Wash. (Mar. 11, 2024); Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South
Dakota House of Representatives for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne”
Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the
Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17,
2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration
for Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the
Blackfeet Tribal Council, Member of the Montana House of Representatives for the 15th District (May 1, 2024); Telephone
Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024) (reporting high
Joseph Dietrich, Javier M. Rodriguez, Political Trust and Native American Electoral Participation, 101 SoC. SCi. q. 1885 (2020)
[hereinafter, “Schroedel, et al., Political Trust”]; Weinberg, supra note 437; oBStaCleS at eveRy tURn, supra note 225 at 43-44.
447 See id; Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
448 See id.; Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19,
2024), Testimony of Dew Bad Warrior-Ganje; Roundtable on Voting Barriers and Election Administration for Tribal Citizens
in Montana (Apr. 29, 2024); Risa Johnson, Overcoming Barriers for Native American Voters, PBS ameRiCan exPeRienCe (June 25,
2020), https://www.pbs.org/wgbh/americanexperience/features/vote-overcoming-barriers-for-native-american-voters/.
449 Weinberg, supra note 437.
450 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
451 See id.
72 Voting for Native Peoples: Barriers and Policy Solutions
Another factor undermining the success of NRFUs on
Tribal lands was the 2020 Census’s woefully inadequate
support for Indigenous language speakers.
452
In 2020, the
Census Bureau did not offer the questionnaire in a single
Native language.
453
The only Native language in which the
Census Bureau provided any language support, including
print and video language guides to assist with completion of the English questionnaire,
bilingual census takers, and keyword translation glossaries, was Navajo.
454
Despite urging
by Tribal leaders, Members of Congress, and other advocates, for additional Native language
assistance, no other Native language was supported by the 2020 Census.
455
The Census
Bureau’s failure to offer adequate Indigenous language assistance made participation less
accessible for both Indigenous language speakers who have limited English prociency as
well as those who understand English but feel more comfortable reading and speaking their
Native language and would be more likely to trust and fully understand materials provided in
that language.
456
The COVID-19 pandemic compounded the already complicated NRFU efforts on Tribal
lands.
457
Because of existing socioeconomic, health, and housing conditions that predispose
Native communities to worse health outcomes, Tribal nations and Native communities
were hit particularly hard by the COVID-19 pandemic.
458
At the height of the pandemic,
Native Americans were far more likely than white Americans to catch COVID-19 and, once
infected, signicantly more likely than white Americans to experience severe symptoms,
452 Weinberg, supra note 437.
453 See U.S. CenSUS BUReaU, 2020 CenSUS SUPPoRt FoR lanGUaGeS, https://www.census.gov/content/dam/Census/library/
factsheets/2020/dec/2020-support-languages.pdf.
454 Id.
455 See, e.g., Making Indian Country Count: Native Americans and the 2020 Census: Hearing Before the S. Comm. on Indian Affs.,
Division Chief, Decennial Census Management Division, U.S. Census Bureau (Dec. 20, 2018), https://capac-chu.house.gov/
press-release/capac-members-send-bicameral-letter-us-census-bureau-urging-adequate-language-support; Weinberg
, supra note 436.
456 Id.
457 See, e.g., Colleen Connolly, Covid 19 Adds a New Snag to the 2020 Census Count of Native Americans (June 23, 2020), https://
www.smithsonianmag.com/history/covid-19-adds-new-snag-to-2020-census-count-native-americans-180975150/;
Weinberg, supra note 437 (quoting OJ Semans (Rosebud Sioux) of Four Directions calling 2020 the “worst case scenario
on doing a census count in any state in Indian Country”); Justine Anderson, Pandemic Protocols Portend Census Undercount
on Tribal Lands, native SUn newS today (June 3, 2020), https://www.nativesunnews.today/articles/pandemic-protocols-
portend-census-undercount-on-tribal-lands-2/; Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former
Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
458 Ivy Hurwitz, Alexandra V Yingling, Teah Amirkabirian, Amber Castillo, Jehanzaeb J Khan, Alexandra Do, Dominic K
Lundquist, October Barnes, Christophe G Lambert, Annabeth Fieck, Gregory Mertz, Clinton Onyango, Samuel B Anyona,
J Pedro Teixeira, Michelle Harkins, Mark Unruh, Qiuying Cheng, Shuguang Leng, Philip Seidenberg, Anthony Worsham,
Jens O Langsjoen, Kristan A Schneider, and Douglas J Perkins, Disproportionate Impact of COVID-19 Severity and Mortality
on Hospitalized American Indian/Alaska Native Patients, 2:8 PnaS nexUS 1 (2023); Katherine Leggat-Barr, Fumiya Uchikoshi,
and Noreen Goldman, COVID-19 Risk Factors and Mortality Among Native Americans, 45 demoGRaPhiC RSCh. 1185 (2021); Nat’l
Indian Health Board, Follow the Evidence: Data Shows that American Indians and Alaska Natives Are Disproportionately
Impacted by COVID-19 (Jul. 28, 2020), https://nihb.org/covid-19/partner-blog/follow-the-evidence-data-shows-that-
american-indians-and-alaska-natives-are-disproportionately-impacted-by-covid-19/.
In 2020, the Census Bureau did
not offer the questionnaire in a
single Native language.
PART III: Present Barriers to Political Participation 73
become hospitalized, and die due to complications of the disease.
459
In an effort to protect
the health and welfare of Tribal members, many Tribal governments implemented strict
isolation procedures on reservations that were often far more restrictive than those in place
on neighboring nontribal lands.
460
Some Tribal nations closed their borders, prohibiting
nonresidents from entering their reservations.
461
These restrictions signicantly hampered the
ability of census takers to count populations on Tribal lands during their eld operations.
462
Even where a home is successfully captured, either through self-response, administrative
records, or NRFU, the census often fails to account for the household’s total number of
residents due to overcrowding and temporary living arrangements.
463
Many homes on Tribal
lands are overcrowded,
464
meaning that more people are living in the home than the number
it was constructed to house.
465
According to an analysis by the United States Department of
Housing and Urban Development (HUD), an estimated 15.9 percent of homes on Tribal lands
are overcrowded, compared to only 2.2 percent of houses nationwide.
466
When homes on Tribal lands are overcrowded, it is often extreme—according to HUD, about
six percent of homes are “severely” overcrowded.
467
On the Rosebud Indian Reservation, for
example, overcrowded homes might have up to three times the number of residents the home
is intended to hold.
468
Commonly, overcrowding is either the result of multiple generations
living in a home or because relatives are providing temporary shelter to an individual that
459 Hurwitz, et al., supra
severe COVID-19 as white COVID patients and more likely to die once infected); nat’l CoUnCil URB. indian health, ameRiCan
indian and alaSka native data on Covid-19, https://ncuih.org/wp-content/uploads/COVID-AI-AN-Info-doc_NCUIH_D072_
V4.pdf (noting that Native peoples were 3.5 times more likely than white Americans to test positive for COVID-19, 3.2 times
more likely to be hospitalized, and 2.2 times more likely to die). Between 2019 and 2021 alone, the Native Americans’ life
expectancy dropped by a shocking 6.6 years. See German Lopez and Ashley Wu, Covid’s Toll on Native Americans, ny timeS
(Sept. 8, 2022), .
460 Justine Anderson, Pandemic Protocols Portend Census Undercount on Tribal Lands, native SUn newS (Jun. 3, 2020), https://
www.nativesunnews.today/articles/pandemic-protocols-portend-census-undercount-on-tribal-lands-2/; Weinberg,
supra note 437.
461 Anderson, supra note 460; Weinberg, supra note 4 37.
462 Anderson, supra note 460; Weinberg, supra note 4 37.
463 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
464
person per room. See nanCy PindUS, G. thomaS kinGSley, JenniFeR BieSS, diane levy, JaSmine SiminGton, ChRiStoPheR hayeS, and
URBan inStitUte, U.S. deP’t oF hoUSinG and URBan develoPment, hoUSinG needS oF ameRiCan indianS and alaSka nativeS in tRiBal
aReaS: a RePoRt FRom the aSSeSSment oF ameRiCan indian, alaSka native, and native hawaiian hoUSinG needS at 74 (Jan. 2017),
[hereinafter “hUd, aian hoUSinG
RePoRt”].
465 hUd, aian hoUSinG RePoRt, supra note 464 at xxi, 73-76; overcrowded Housing and the Impacts on American Indians and
Alaska Natives: Field Hearing Before the S. Comm. On Indian Affs., 115th Cong. (2018), https://www.govinfo.gov/content/
pkg/CHRG-115shrg33406/pdf/CHRG-115shrg33406.pdf.
466 See hUd, aian hoUSinG RePoRt, supra note 464 at xxi, 73-76. This metric climbs to a shocking 19 percent of households
Id. at 82.
467 Id.
1.5 persons per room. Id.
468 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
74 Voting for Native Peoples: Barriers and Policy Solutions
would otherwise be unhoused.
469
Indeed, an estimated 17 percent of households on Tribal
lands include a member that is only staying at the home because they have no other place to
stay.
470
This can have a detrimental impact on census
results. When more people are living in a home
than are intended to live there, census respondents
sometimes underreport the number of residents
in their home out of fear or distrust of government
authorities.
471
Temporary residents are often not
identied on formal documentation associated
with the home and are therefore unlikely to be captured by administrative records. Likewise,
temporary residents might not be reported to enumerators because the respondent does
not consider them a permanent part of the residence. Together, these factors exacerbate the
undercount on Tribal lands.
472
The 2020 Census’s nal population counts on Tribal lands reect the signicant barriers noted
here. Native Americans and Alaska Natives living on Tribal lands were the most undercounted
racial or ethnic group the Census Bureau tracks, with estimates suggesting that the 2020
undercount may have surpassed the already-high 2010 undercount.
473
On some reservations,
enrollment records show that the population of Tribal citizens living on Tribal lands is as large
as twice the population captured by the 2020 Census.
474
Impact of a Census Undercount on Redistricting
Because census data is used to determine relative district populations for the purpose of
redistricting, an undercount of Native peoples in the census has a direct impact on the political
representation Native peoples have in federal, state, and local legislatures.
475
When map
drawers create electoral districts using data that articially deates the size of the Native
469 See hUd, aian hoUSinG RePoRt, supra note 464 at 77, 81. According to the Department of Housing and Urban Development
(HUD), “although AIAN households most commonly include members of the core family (for example spouse and children),
AIAN households also include other members, particularly grandchildren with some regularity.” Id. at 77. HUD estimates
that 39 percent of households on Tribal lands include extended family (i.e., related family members beyond the adult
respondent and their spouse or partner and minor children). Id. About 28 percent of those extended households are
Id. at 81.
470 Id. at 85.
471 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024)
472 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
473 See Stempowski, supra note 418.
474 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe,
in Rosebud, S.D. (Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-
Founder and Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of
the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D.
(Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
475 Shondiin Silversmith, Large Census Undercount of Indigenous People on Tribal Lands Means Fewer Resources, Political
Power, az miRRoR (Apr. 7, 2022), https://azmirror.com/2022/04/07/large-census-undercount-of-indigenous-people-on-
tribal-lands-means-fewer-resources-political-power/.
Native Americans and Alaska Natives
living on Tribal lands were the most
undercounted racial or ethnic group
the Census Bureau tracks.
PART III: Present Barriers to Political Participation 75
Native, Counted
Native, Uncounted
Non-Native, Counted
MAP A: Accurate Census Count
MAP B: Undercounted Native Population
Ideal District Size = 50
MAP A
Total Population = 50
Native Population = 30
Non-Native Population = 20
MAP B
Total Population = 60
Counted Population = 50
Native Population = 30
Counted Native Population = 20
Non-Native Population = 30
Figure 4. Example maps demonstrating the impact of a census undercount on Native representation.
population, the resulting districts dilute the Native vote by overcrowding Native voters into fewer
districts than are justied by the real size of the Native population. Simultaneously, because the
data shows fewer Native peoples populating the district than actually live there, map drawers
can pack additional white voters into the district, overpopulating it, while still enacting districts
with equal population sizes according to the inaccurate census count.
476
Figure 4 above shows how a census undercount can impact Native representation. In Map
A, there is an accurate census count, and the district is correctly populated at the ideal
district size. In that district, Native voters comprise a
numerical majority and will likely be able to elect a
candidate of choice. Map B represents an undercount
of Native residents. While in reality, the district in Map
B is overpopulated—with 10 more than the ideal district
size—the population data shows that the district has only
50 residents. Of the district’s 30 Native residents, 10 were
not counted by the census and are therefore not reected
476 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
An undercount of Native peoples
in the census has a direct impact
on the political representation
Native peoples have in federal,
state, and local legislatures.
76 Voting for Native Peoples: Barriers and Policy Solutions
in the total population count for the purposes of redistricting. This allowed map drawers to
add 10 additional non-Native residents, malapportioning the district without the data showing
as much. With an equal number of Native and non-Native voters, the district will be highly
competitive, with non-Native voters likely blocking Native voters from electing a candidate of
choice due to lower overall turnout rates in Native communities.
Vote Dilution through Discriminatory Districts and Electoral Systems
States and localities also disenfranchise Native voters through the district-based and at-
large electoral schemes that dilute the power of their vote, including ones that violate
federal law or voters’ constitutionally protected
rights.
477
Commonly, states do this by: (1) using at-
large electoral systems in jurisdictions where the
Native peoples comprise a numerical minority of
the population; (2) cracking politically cohesive
Native communities between two or more electoral
districts; (3) packing Native communities into single
districts where they comprise a supermajority,
despite being large enough to constitute a majority
in more than one district; (4) overpopulating districts with large concentrations of Native
voters and under populating white majority districts in order to reduce the weight of votes
from Native Americans; or (5) racially gerrymandering district lines by intentionally placing
voters inside or outside of a particular district primarily because of their race, without a
compelling justication for doing so.
As a result of redistricting conducted nationwide
in 2021, Tribal nations and their citizens have
already brought at least ve successful lawsuits
challenging discriminatory maps.
478
One Tribal
nation was forced to defend a North Dakota state
legislative subdistrict drawn around its reservation
to comply with the Voting Rights Act against
a challenge by white plaintiffs.
479
Too often,
477 See mCCool, et al., native vote, supra note 73 at 48-67 (listing federal voting rights cases brought by Tribal nations or
on behalf of Tribal citizens from 1965 through 2006); oBStaCleS at eveRy tURn, supra note 225at 19-20, 115-23 (describing
redistricting litigation brought by Tribal nations or on behalf of Tribal citizens from 2007 through 2020); white hoUSe RePoRt,
supra note 290 at 21-22; Julia Kirschenbaum & Michael Li, Brennan Center for Justice, Gerrymandering Explained (June
9, 2023), https://www.brennancenter.org/our-work/research-reports/gerrymandering-explained (explaining the various
ways in which lawmakers dilute the voting strength of communities of color).
478 See, e.g., Lower Brule Sioux Tribe v. Lyman Cnty., 625 F. Supp. 3d 891, 923 (D.S.D. 2022); Turtle Mountain Band of
Chippewa Indians v. Howe, No. 3:22-CV-22, 2023 WL 8004576, at *17 (D.N.D. Nov. 17, 2023); Order, Consent Decree, and
Judgement, Spirit Lake Tribe v. Benson County, ECF No. 37, 3:22-cv-00161 (D.N.D. Apr. 24, 2023); Order, Consent Decree,
and Judgement, Winnebago Tribe v. Thurston County, No. 8:23-cv-00020 (D. Neb. Jan. 26, 2024); Nick Diaz, Voting Rights
Win in New Mexico: Navajo Community Gains Equal Opportunity to Elect Preferred Candidates in Second San Juan County
Commission District, lawyeRS Committee FoR Civil RiGhtS UndeR law (Mar. 25, 2024), https://www.lawyerscommittee.org/
voting-rights-win-in-new-mexico-navajo-community-gains-equal-opportunity-to-elect-preferred-candidates-in-second-
san-juan-county-commission-district/.
479 See Walen v. Burgum, __ F.Supp.3d. __, No. 1:22-CV-31, 2023 WL 7216070, at *10 (D.N.D. Nov. 2, 2023) (three judge panel;
U.S. S. Ct. appeal docketed Mar. 6, 2024).
As a result of redistricting conducted
in 2021, Tribal nations and their
citizens have already brought at least
ve successful lawsuits challenging
discriminatory maps.
States and localities also disenfranchise
Native voters through the district-based
and at-large electoral schemes that
dilute the power of their vote, including
ones that violate federal law or voters’
constitutionally protected rights..
PART III: Present Barriers to Political Participation 77
discriminatory map drawers are repeat offenders, forcing the same Tribal nations to expend
limited resources in one redistricting cycle after the next to ensure state and local ofcials
adopt electoral systems that comply with federal and state law and give Native citizens an
equal opportunity to participate effectively in the political system.
480
Blocking Native-Preferred Candidates Through At-Large Electoral Systems
The most common way map drawers dilute the voting strength of Native peoples is through
the use of at-large electoral systems in jurisdictions where Native Americans comprise a
minority of the eligible voter population.
481
When Native peoples make up less than half of
a jurisdiction’s population, non-Native voters may be able to block Tribal members’ ability
to elect even a single candidate of choice to the political body. Indeed, there have been at
least 26 successful legal actions challenging at-large voting schemes that dilute the Native
vote.
482
At-large electoral systems are most commonly used to dilute Native American voting
strength at the local level.
483
However, some states utilize
multi-member districts in the lower houses of their state
legislatures with subdistricts permitted at the discretion
of legislators. This threatens to dilute the voting strength
of Native Americans if legislators elect not to utilize
subdistricts in areas where Native peoples constitute a
substantial minority of the voting age population.
484
Benson County, North Dakota. Benson County, North Dakota is the quintessential example
of a locality that, for years, has undermined the electoral power of Native voters through an
at-large system. Since 2000, Benson County, North Dakota, which shares geography with
the Spirit Lake Nation, has been bound by a consent decree that required the County to
adopt a district-based electoral system for its County Commission because its previous “at-
large method of electing the Benson County Commissioners, operating in the totality of the
circumstances in Benson County, dilute[d] Native American voting strength in violation of
Section 2 of the Voting Rights Act.”
485
Indeed, prior to 2000, not a single Native candidate had
ever been elected to the Benson County Commission.
486
480 See infra notes 485-494 and accompanying text (discussing repeated Voting Rights Act violations in Benson County,
North Dakota); notes 548-556 and accompanying text (discussing repeated vote dilution attempts using an at-large
system in San Juan County, New Mexico); notes 557-561 and accompanying text (discussing persistent vote dilution in
Thurston County, Nebraska).
481 See, e.g., Order, Consent Decree, and Judgement, Spirit Lake Tribe v. Benson County, ECF No. 37, 3:22-cv-00161 (D.N.D.
Apr. 24, 2023); Lower Brule Sioux Tribe v. Lyman Cnty., 625 F. Supp. 3d 891, 922 (D.S.D. 2022); United States v. Chamberlain
Sch. Dist., No. 4:20-CV-4084, 2020 WL 6866809, at *1 (D.S.D. June 18, 2020); mCCool, et al., native vote, supra note 73 at
48-67 (collecting cases); oBStaCleS at eveRy tURn, supra note 225 at 19-20 (collecting cases).
482 See supra note 481 (listing sources).
483 See id.
484 See n.d. ConSt. art. IV, § 2; S.D. ConSt. art. III, § 5.
485 Consent Decree at 5 ¶ 2, U.S. v. Benson County, No. A2-00-30 (D.N.D. Mar. 10, 2000), available at https://www.justice.gov/
.
486 Id. at 4 ¶ 13.
At-large electoral systems are
most commonly used to dilute
Native American voting strength
at the local level.
78 Voting for Native Peoples: Barriers and Policy Solutions
The court permanently enjoined the County from using its
at-large election method, requiring the County to institute
“ve single-member districts” including “two majority-
Native American voting districts.”
487
Unfortunately,
the win was short-lived. In 2004—just four years after
the consent decree took effect—the Benson County
Board of Commissioners called a special session where
Commissioners reviewed the documentation related to
the consent decree and then voted to revert to an at-large
system of voting, despite the consent decree’s express ban
on doing so.
488
In 2021, despite the clear and binding consent decree that remained in effect, Benson County
once again adopted an electoral system where candidates for the County Commission would
be elected at-large, undermining the electoral strength of citizens of the Spirit Lake Nation
and other Native voters in the County.
489
Under the at-large system, Native voters likely would
have been unable to elect a single candidate of choice, despite making up 44.3 percent of the
County’s voting age population.
490
When it adopted the at-large system, the Benson County Commission knew that a federal
court had invalidated a nearly identical plan as a violation of the Voting Rights Act because it
discriminated against Native voters.
491
Before adopting the 2021 plan, the Commission even
received testimony objecting to the at-large system and reminding Commissioners of the
consent decree.
492
Not only did the plan violate the consent decree, but it also likely violated
North Dakota law, which prohibits counties from using at-large electoral systems, except in
specic circumstances that did not apply to Benson County.
493
Following a lawsuit by Spirit
Lake Nation and Spirit Lake citizens, the County agreed to adopt district-based elections
because the at-large system was inconsistent with both the 2000 consent decree and Section
2 of the Voting Rights Act.
494
Lyman County, South Dakota. More than 40 percent of voters in Lyman County, South Dakota
live on the Lower Brule Reservation. Until 2023, however, Native voters were almost completely
487 Id. at 7 ¶ 6.
488 See Complaint at 10, ECF No. 1, Spirit Lake Tribe v. Benson County, 3:22-cv-00161 (D.N.D. Oct. 7, 2022).
489 See Consent Decree at 3 ¶ 9, ECF No. 37, Spirit Lake Tribe v. Benson County, 3:22-cv-00161 (D.N.D. Apr. 24, 2023);
system required County Commission candidates to reside in the electoral district in which they were running but permitted
See Consent Decree at 3 ¶ 12, ECF No. 37, Spirit Lake Tribe, 3:22-cv-00161.
490 See Consent Decree at 3 ¶ 11, ECF No. 37, Spirit Lake Tribe, 3:22-cv-00161.
491 See Consent Decree, U.S. v. Benson County, No. A2-00-30; see also Native American Rights Fund, Benson County (ND)
(Spirit Lake Tribe v. Benson County), https://narf.org/cases/benson-county-nd-redistricting/ (quoting plaintiff and citizen
election system would illegally dilute the Native vote because the court had already prevented them from this form of
voter suppression.”).
492 See Complaint at 11, ECF No. 1, Spirit Lake Tribe v. Benson County, 3:22-cv-00161 (D.N.D. Oct. 7, 2022).
493 See N.D.C.C. § 11-11-02.
494 See Consent Decree at 4-5 ¶ 2, 4 ¶¶ 16-17, ECF No. 37, Spirit Lake Tribe, 3:22-cv-00161.
When it adopted the at-large
system, the Benson County
Commission knew that a federal
court had invalidated a nearly
identical plan as a violation of
the Voting Rights Act because
it discriminated against
Native voters.
PART III: Present Barriers to Political Participation 79
unable to elect their preferred candidates to the Lyman County Board of Commissioners
because of the County’s at-large electoral system.
495
During the 2020 redistricting process,
Kul Wicasa Oyate
496
(“Lower Brule Sioux Tribe” or “Lower Brule”) Tribal leaders and citizens
informed the Board of Commissioners that its failure to adopt a district-based electoral
system, rather than at-large elections, would violate Section 2 of the Voting Rights Act.
497
While the Board of Commissioners agreed with the Tribe that federal law required it to draw
two majority Native districts, “[r]ather than adopt the Tribe’s preferred plan, the County went
to the state legislature to amend South Dakota law to allow implementation of a novel hybrid
redistricting plan, causing a delay [until 2026] for when tribal members would likely be able to
elect their preferred commissioners.”
498
Because of the County’s unwarranted delays, Lower Brule sued the Board of Commissioners
to enforce the rights of its citizens to fair representation.
499
Stephanie Bolman-Altamirano, a
Lower Brule citizen, plaintiff, and then-member of the Lower Brule Tribal Council explains why
the delay was so harmful:
Each and every day people who do not represent us make decisions that affect
my community. Their decisions over the past three decades have created great
disparities across various systems, which continue to have devastating effects
on people I care about.
500
The South Dakota federal district court found the at-large plan likely violated Section 2 of
the VRA, reasoning that, “[s]ince 1992 . . . the effect of a single county-wide district has been
to create a system where the County’s white majority can and largely has blocked election of
Native-preferred candidates.”
501
Ultimately, the case was resolved with a consent decree that
accelerated the timeline for Lyman County Native voters to achieve fair representation.
502
Chamberlain School District, South Dakota. From 2007 until 2020, only one Native person
was elected to the seven-member Chamberlain School Board despite Native Americans,
primarily from Lower Brule and the Crow Creek Sioux Tribe (“Crow Creek”), comprising
495 See Lower Brule Sioux Tribe v. Lyman Cnty., 625 F. Supp. 3d 891, 923 (D.S.D. 2022) (“[A]t-large commission elections
have effectively squelched the chances of electing a Native-American-preferred candidate to the Commission with the
exception of defendant/independent candidate Schelske, who received majority support from Native Americans and won
a seat on the Commission.”); Roundtable on Voting Barriers and Election Administration for Citizens of the Lower Brule
Sioux Tribe (Apr. 17, 2024).
496 The Kul Wicasa Oyate are federally recognized as the Lower Brule Sioux Tribe of the Lower Brule Sioux Reservation,
South Dakota. 89 Fed. Reg. 944.
497 Native American Rights Fund, Lyman County (SD) Redistricting (Lower Brule Sioux Tribe v. Lyman County), https://narf.org/
cases/lower-brule-sioux-tribe-lyman-county-redistricting/ (last visited May 17, 2024) [hereinafter “NARF, Lyman County
Redistricting”]; Roundtable on Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr.
17, 2024).
498 Lower Brule Sioux Tribe, 625 F. Supp. 3d at 923; see also Roundtable on Voting Barriers and Election Administration for
Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024); NARF, Lyman County Redistricting, supra note 497.
499 See Roundtable on Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024);
NARF, Lyman County Redistricting, supra note 497.
500 Id. (statement of Stephanie Bolman).
501 Lower Brule Sioux Tribe, 625 F. Supp. 3d at 923-24.
502 See Consent Decree, ECF No. 125, Lower Brule Sioux Tribe v. Lyman County, 3:22-cv-03008 (D.S.D. Dec. 15, 2022).
80 Voting for Native Peoples: Barriers and Policy Solutions
29.0 percent of the school district’s voting age
population.
503
This is because the district employed
an at-large electoral system, allowing the white
majority to out-vote Native voters in nearly every
contest.
504
In 2020, the U.S. Department of Justice
sued the Chamberlain School District because the
School Board’s at-large system diluted the voting
strength of Native voters in the Chamberlain.
505
The parties quickly reached a consent decree,
requiring School Board elections to shift to a hybrid system that gives Native voters a better
opportunity to elect a candidate of choice.
506
It is worth noting that Chamberlain School
District’s electoral system was such an egregious violation of federal law that this lawsuit
was one of only two Section 2 enforcement actions brought by the U.S. Department of Justice
under the Trump Administration.
507
The Chamberlain School District exemplies the importance of ensuring fair representation
of Native peoples in their local governing bodies. Chamberlain is a predominately white
township, located near the Crow Creek and Lower Brule Reservations—the type of locality
commonly referred to as a “border town.” While the city does not share geography with
any Tribal nations, many Crow Creek and Lower Brule Tribal citizens living in the town or on
the nearby reservations send their children to school in the Chamberlain School District.
508
There is a well-documented history of discrimination and abuses against Native peoples in
Chamberlain schools by Chamberlain ofcials as well as individuals acting on behalf of the
federal government within Chamberlain schools.
In 1898, the Bureau of Indian Affairs opened the Chamberlain Indian School, a federal
government-run boarding school designed to forcibly assimilate Native children into U.S.
culture and society.
509
When the school was later sold to the Catholic Church and reopened
as the St. Joseph’s Indian School, it became the site of horric abuses of Native children,
including widespread sexual abuse—crimes that lasted well into the twentieth century.
510
At
the same time, Chamberlain’s own ofcials expressed distain for Native peoples. In 1954, when
the Bureau of Indian Affairs was considering transferring an agency to Chamberlain, Mayor
503 Complaint at 3 ¶ 15, ECF No. 1, U.S. v. Chamberlain School District, 4:20-cv-04084 (D.S.D. May 27, 2020); Consent Decree at
2 ¶¶ iv-v, ECF No. 4, U.S. v. Chamberlain School District, 4:20-cv-04084 (D.S.D. Jun. 18, 2020).
504 See id. ¶¶ iv-vi.
505 See Complaint at 3 ¶ 15, ECF No. 1, U.S. v. Chamberlain School District, 4:20-cv-04084 (D.S.D. May 27, 2020).
506 See Consent Decree at 2 ¶¶ iv-v, ECF No. 4, U.S. v. Chamberlain School District, 4:20-cv-04084 (D.S.D. Jun. 18, 2020).
507 See Civil Rights Division, U.S. Dep’t of Justice, Cases Raising Claims Under Section 2 Of The Voting Rights Act (updated
May 25, 2022), https://www.justice.gov/crt/cases-raising-claims-under-section-2-voting-rights-act-0.
508 See Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024).
509 Bryan Newland, Bureau of Indian Affairs, FedeRal indian BoaRdinG SChool initiative inveStiGative RePoRt, Appendix B (May
2022), https://www.bia.gov/service/federal-indian-boarding-school-initiative.
510 Patrick Anderson, Native American Victims of Sex Abuse at Catholic Boarding Schools Fight for Justice, aRGUS leadeR (May
17, 2019), https://www.argusleader.com/story/news/2019/05/16/native-american-sex-abuse-victims-catholic-boarding-
schools-south-dakota/1158590001/; Nick Estes, My relatives went to a Catholic school for Native children. It was a place
of horrors, GUaRdian (Jun. 30, 2021), https://www.theguardian.com/commentisfree/2021/jun/30/my-relatives-went-to-a-
catholic-school-for-native-children-it-was-a-place-of-horrors.
The Chamberlain School District
exemplies the importance of ensuring
fair representation of Native peoples in
their local governing bodies..
PART III: Present Barriers to Political Participation 81
Herschel V. Melcher expressed his strong opposition to “having Indians in [Chamberlain’s]
schools or living in unsanitary conditions about the city.”
511
Melcher continued, “[w]e have no
intention of making an Indian comfortable around here, especially an ofcial.”
512
Almost 60 years after Chamberlain’s mayor told the federal government that Native children
were not welcome in the city’s schools, the Chamberlain School Board—which had been
elected under an at-large system—repeatedly refused to allow Tribal citizens to perform
an honor song for graduating seniors, prompting a civil rights investigation by the U.S.
Department of Education.
513
Referencing the request, one school board member remarked, “I
can’t see how it honors everybody when it’s not in our language, and when I say our language,
I mean English . . . I look at the Pledge of Allegiance and it covers everything.”
514
Rather than
participate in the graduation ceremony, honor song performers were forced to perform the
song outside and across the street from the school.
515
Without fair representation for Native
voters in Chamberlain, the interests of Native students, parents, and teachers in the city will
continue to be disregarded and disrespected.
North Dakota State Legislature. In North Dakota, two members of the State House of
Representatives are elected from each State Senate district, either at-large or from equal-
population subdistricts.
516
During the 2021 redistricting cycle, it became clear that the
population of the Mandan, Hidatsa and Arikara Nation (MHA Nation)
517
residing on the Fort
Berthold Reservation had become sufciently large that the North Dakota Legislative
Assembly would be required to draw a subdistrict following the reservation’s political
boundaries in order to comply with Section 2 of the Voting Rights Act.
518
After hearing
testimony from Chairman Mark Fox of the MHA Nation requesting a State House subdistrict
and performing a careful analysis of what the VRA required, the Legislative Assembly elected
511 Christina Rose, Is Racism Behind Banning of Honor Song from Graduation Ceremonies?, indian CoUntRy today (Dec. 13, 2013),
https://ictnews.org/archive/is-racism-behind-banning-of-honor-song-from-graduation-ceremonies; see also, U.S. Dep’t of
Indian Affairs, Crow Creek Agency Will Move to Pierre, South Dakota (Sept. 20, 1954), https://www.bia.gov/as-ia/opa/online-
press-release/crow-creek-indian-agency-will-move-pierre-south-dakota.
512 Rose, supra note 511.
513 See Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024); Jonathan Ellis, Chamberlain Honor Song Complaint Prompts Investigation, aRGUS leadeR (Sept. 17, 2014),
https://www.argusleader.com/story/news/2014/09/16/chamberlain-honor-song-complaint/15736899/; Rose, supra
note 510; Lakota Times, Chamberlain School Board Rejects Honor Song Request for Native American Students, lakota
timeS (May 15, 2013), https://www.lakotatimes.com/articles/chamberlain-school-board-rejects-honor-song-request-for-
native-american-students/; Tally Monteau-Colombe, Chamberlain School Board Denies Singing of a Lakota/Dakota Honor
Song, indian CoUntRy today (May 21, 2013), https://ictnews.org/archive/chamberlain-school-board-denies-singing-of-a-
lakotadakota-honor-song (describing the Chamberlain School Board’s refusal to allow a Lakota/Dakota honor song and a
prior incident where non-Native students wore shirts reading “White Pride Worldwide” to a Chamberlain school).
514 Lakota Times, supra note 513.
515 See Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024).
516 See N.D. ConSt. art. IV, §§ 1-2.
517
Reservation, North Dakota”. See 89 Fed. Reg. 944 (Jan. 8, 2024).
518 See Walen v. Burgum, No. 1:22-CV-31, 2023 WL 7216070, at *8-10 (D.N.D. Nov. 2, 2023); Sept. 23, 2021 Hearing Before the
Joint Redristicting Committee, 67th Leg., Reg. Sess. (N.D. 2021) (Testimony of Mark N. Fox, Chairman, Mandan, Hidatsa
and Arikara Nation), [hereinafter “Fox
Testimony”].
82 Voting for Native Peoples: Barriers and Policy Solutions
to draw a subdistrict that mirrors the political boundaries of the Fort Berthold Reservation.
519
The majority of the voting age population of the subdistrict is Native American, giving Native
voters the opportunity to elect a candidate of their choice to the State House.
520
After the legislature enacted the Native majority subdistrict, white voters challenged the
map in federal court, arguing that the state house subdistrict was an unconstitutional racial
gerrymander.
521
This forced the MHA Nation to expend resources to defend the district and
ensure its citizens would have fair representation in North Dakota’s Legislative Assembly.
522
In
November 2023, a federal court determined that the Legislative Assembly had “good reasons
and strong evidence to believe” that the subdistrict was required by Section 2 of the VRA and
upheld the constitutionality of the district.
523
North Dakota Secretary of State Michael Howe and North Dakota Governor Doug Burgum,
who are the primary defendants in the case, had been defending the map against the
constitutional challenge, even moving to have the case resolved before trial in favor of MHA
Nation’s position.
524
Alarmingly, in May 2024, the North Dakota Governor and Secretary of
State inexplicably reversed course, abandoning their defense of the subdistrict and MHA
Nation citizens’ right to fair representation in the Legislative Assembly.
525
As a part of an appeal to the U.S. Supreme Court by the non-Native plaintiffs, the Governor and
Secretary of State requested that the Court vacate the win the state itself had secured.
526
In
its brief, the state asked the Court to ignore decades of precedent and decide that compliance
with Section 2 of the VRA cannot be a compelling justication for the consideration of race in
drawing district boundaries.
527
North Dakota’s actions have left voters in limbo and the MHA
Nation on its own, in opposition to the State of North Dakota and non-Native plaintiffs, to
defend the rights of its citizens before the U.S. Supreme Court.
528
519 See Walen, 2023 WL 7216070, at *8-10; Fox Testimony, supra note 517.
520 See n.d. leGiSlatURe, RediStRiCtinG Committee, PRoPoSed Statewide Plan (Sept. 29, 2021),
committees/67-2021/map_for_consideration_092921.pdf.
521 See Complaint, ECF No. 1, Walen v. Burgum, No. 1:22-cv-00031 (Feb. 16, 2022).
522 See Mot. to Intervene, ECF No. 16, Walen v. Burgum, No. 1:22-cv-00031 (Mar. 30, 2022).
523 See Walen, 2023 WL 7216070, at *10.
524 See Mem. in Supp. of Mot. for Summ. J., ECF No. 102, Walen v. Burgum, No. 1:22-cv-00031 (Feb. 28, 2023) (moving for
summary judgement because “the undisputed evidence shows race was not a predominant factor in legislative decision
making, and even if it were the predominant factor, the Legislature had good reasons to believe a failure to subdistrict
would be a violation of the Voting Rights Act”); Mem. in Resp. to Intervenor Defs. Mot. for Summ. J., ECF No. 112, Walen v.
Burgum, No. 1:22-cv-00031 (Mar. 21, 2023) (joining MHA Nation’s legal arguments in favor of summary judgement).
525 See Mem. in Resp. to Jurisdictional Statement, Walen v. Burgum, No. 23-969 (U.S. May 6, 2024).
526 Id.
527 See id. at 2-3.
528 See Native American Rights Fund, Defending a Majority Native-Voter Subdistrict in North Dakota (Walen v. Burgum), https://
narf.org/cases/majority-native-voter-subdistrict/ (noting that “[t]he abrupt change left the MHA Nation and individual
voters on their own to defend North Dakota’s legislative actions and Native voters’ rights before the Supreme Court” and
quoting MHA Nation Chairman Fox calling the change of position “unconscionable”).
PART III: Present Barriers to Political Participation 83
Cracking Tribal Lands and Other Politically Cohesive Native Communities
States and localities persistently dilute the political power of Native voters by enacting
districting plans that split (or “crack”) Tribal lands and other politically cohesive Native
communities between two or more electoral districts.
529
Map drawers can crack Native
communities in a variety of ways: Native voters are prevented from participating equally in
the nontribal political process—that is, the political structures of local, state, and federal
governments—when map drawers split politically cohesive communities of Native peoples
that are sufciently large and geographically compact enough to make up the majority in an
electoral district, often in violation of Section 2 of the VRA.
530
529 See, e.g., Turtle Mountain Band of Chippewa Indians v. Howe, No. 3:22-CV-22, 2023 WL 8004576, at *17 (D.N.D. Nov. 17,
2023) [hereinafter Turtle Mountain]; mCCool, et al., native vote, supra note 73 at 64 (describing Jepsen v. Vigil-Giron, a
challenge to New Mexico’s 2000 district plan for the State Legislature where a state court had to redraw court-drawn
maps because they diluted the Native vote); U.S. Dep’t of Justice, New South Dakota Sanitary District Established to Include
Native Americans Under Agreement with Justice Department (Jun. 26, 2000), https://www.justice.gov/archive/opa/pr/2000/
June/363cr.htm (describing a consent decree requiring the locality to enact an additional sanitary district because the
prior plan had diluted the voting strength of Native residents); Old Person v. Cooney, 230 F.3d 1113, 1130 (9th Cir. 2000);
Stabler v. Thurston County, 129 F.3d 1015 (8th Cir. 1997); Goddard v. Babbitt, 536 F. Supp. 538 (D. Ariz. 1982); Klahr v.
Williams, 339 F. Supp. 922 (D. Ariz. 1972).
530 See, e.g., Turtle Mountain, 2023 WL 8004576, at *17.
Native
Non-Native
Reservation
Boundary
Congressional
District Boundary
MAP A:
Reservation Split
MAP B:
Reservation Kept Together
MAP A
District 1A:
Native VAP = 45
Non-Native VAP = 55
District 1B:
Native VAP = 20
Non-Native VAP = 80
MAP B
District 1B:
Native VAP = 65
Non-Native VAP = 35
District 2B:
Native VAP = 0
Non-Native VAP = 100
District 1ADistrict 1B
District 1B District 2B
Figure 5. Example maps showing the impact on Native representation when Tribal lands are cracked
between districts.
84 Voting for Native Peoples: Barriers and Policy Solutions
Even where the population of Native voters living on a reservation or other Tribal lands is too
small to make up the majority in an electoral district, their voting strength can be diluted when
map drawers split the community between two or more districts.
531
Splitting communities in
this way undermines Native voters’ ability to exert cohesive political inuence, reducing the
likelihood that an elected representative in their district will be responsive to their needs.
Furthermore, Native people’s ability to effectively have their voices heard in the nontribal
political process can be undermined when map drawers fail to include nearby communities
of Tribal citizens living on a Tribal nation’s ancestral homelands but outside the formal
reservation boundaries in the same district as the reservation.
532
The burden on Native voters when their communities are improperly split between districts
is compounding. Most obviously, it prevents Tribal citizens, who might otherwise make up the
majority in an electoral district, from voting as a bloc in a single district to elect a candidate
of their choice or, at a minimum, exercise cohesive
political power.
533
Beyond the immediate impact on
voters, splitting Tribal lands and Native communities
between districts also hampers the ability of Tribal
leaders to effectively advocate for their citizens.
534
Specically, when reservations and other Tribal
communities are cracked between districts where Tribal citizens make up less than a majority,
Tribal leaders are forced to split their advocacy between multiple elected ofcials who may
be less responsive than a single elected ofcial that represents the Tribal leaders’ entire
constituency, and with whom Tribal leaders have developed a strong working relationship.
535
531 See, Sept. 15, 2021 Hearing Before the Joint Redristicting Committee, 67th Leg., Reg. Sess. (N.D. 2021) (statement
of Nicole Donaghy, Executive Director, North Dakota Native Vote),
2021/23_5061_03000appendixe.pdf (recommending treating reservations and other Tribal communities as communities
of interest because “[s]plitting the reservation or [Native] communities into multiple districts would dilute the ability of
tribal members to elect the representative of their choice”).
532 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9,
Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024).
533 See, e.g., Turtle Mountain Band of Chippewa Indians v. Howe, No. 3:22-CV-22, 2023 WL 8004576, at *17 (D.N.D. Nov. 17,
2023).
534 See, e.g., Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9,
Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); Roundtable on Voting Barriers and Election Administration
for Tribal Citizens in Montana (Apr. 29, 2024).
535 See, e.g., Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar.
9, 2024) (explaining the importance of including ancestral homelands where communities of Tribal citizens traditionally
and presently live in the same district as the reservation or seat of the Tribal government); Phone Interview with Anthony
Yakama Nation (Mar. 22, 2024) (explaining that many citizens of the Yakama Nation live on the Tribe’s ceded lands outside
the Reservation and those same citizens are often the most underserved by nontribal governments making the Tribe’s
advocacy on their behalf particularly important).
The burden on Native voters when
their communities are improperly split
between districts is compounding.
PART III: Present Barriers to Political Participation 85
North Dakota State Legislature. In the 2021 redistricting cycle, the North Dakota Legislative
Assembly deployed State House subdistricts
536
(where they were neither requested nor
required) in order to dilute the voting strength of citizens of the Turtle Mountain Band of
Chippewa Indians (the “Turtle Mountain Band”) and Spirit Lake Nation, “unlawfully packing
[a single state legislative subdistrict] with a supermajority of Native Americans and cracking
the remaining Native American voters in the region into other districts[.]”
537
Specically, the
Legislative Assembly split the Turtle Mountain Reservation from nearby Turtle Mountain
Trust Lands where Tribal members also live and which had previously been included in the
same legislative district as the reservation.
538
This placed a supermajority of Native voters the
subdistrict containing the reservation and left the subdistrict containing Tribal trust lands with
too few Native voters to elect a candidate of choice.
539
The Legislative Assembly further cracked the Native community in northern North Dakota by
breaking the Spirit Lake Reservation into another state legislative district where Native voters
were also a minority and unable to elect any candidate of choice to the State House or State
Senate.
540
The Legislative Assembly enacted this map despite express notice that the plan
would violate the Voting Rights Act and a formal request from Turtle Mountain Chairman Jamie
Azure and then-Chairman of the Spirit Lake Nation Doug Yankton to create a single legislative
district that would unify the Tribal lands.
541
A federal district court in North Dakota determined that the plan violated Section 2 of the
VRA because it “prevent[ed] Native American voters from having an equal opportunity to elect
candidates of their choice[.]”
542
While Section 2 required map drawers to enact a plan that
would have allowed Native voters to elect one candidate of choice to the State Senate and two
candidates of choice to the State House, the challenged plan reduced that representation to a
single State House Representative.
543
Notably, in the 2022 election held under the challenged
536 In North Dakota, three members of the Legislative Assembly are elected from each state legislative district: one state
senator and two representatives in the State House. See N.D. ConSt. art. IV, §§ 1-2. In each legislative district, the entire
population votes for the single member of the State Senate, while the two representatives in the State House can be
elected either at-large or from two subdistricts, each consisting of equal populations. Id. During the 2021 redistricting
process, the Legislative Assembly elected to draw subdistricts in just two of the state’s 47 legislative districts. See n.d.
leGiSlatURe, RediStRiCtinG Committee, PRoPoSed Statewide Plan (Sept. 29, 2021),
map_for_consideration_092921.pdf. One State House subdistrict mirrors the boundaries of the Fort Berthold Reservation
where the Mandan, Hidatsa and Arikara Nation is located, as required by Section 2 of the Voting Rights Act, while the other
is the subdistrict at issue in Turtle Mountain. See Walen v. Burgum, __ F.Supp.3d. __, No. 1:22-CV-31, 2023 WL 7216070, at
*10 (D.N.D. Nov. 2, 2023); Turtle Mountain, 2023 WL 8004576.
537 Turtle Mountain Band of Chippewa Indians v. Howe, No. 3:22-CV-22, 2023 WL 8004576, at *1 (D.N.D. Nov. 17, 2023)
[hereinafter “Turtle Mountain”].
538 Id. at *10-15.
539 See id. at *10-15.
540 See id.
541 Nov. 1, 2021, Letter from Turtle Mountain Chairman Jamie Azure and Spirit Lake Nation Chairman Douglas Yankton, Sr.,
to the North Dakota Legislative Redistricting Committee and Governor Doug Burgum, ECF No. 1-2, Ex. 1, Turtle Mountain,
No. 3:22-CV-22, 2023 (D.N.D. Feb. 7, 2022), available at
Letter%20%28Exhibit%201%29_FILED.pdf.
542 See Turtle Mountain, 2023 WL 8004576 at *17.
543 See id.
86 Voting for Native Peoples: Barriers and Policy Solutions
map, North Dakota lost its single state senator from a North Dakota Tribal nation, leaving the
94-member State Senate without a single Native member for the rst time since 2006.
544
Chairman Jamie Azure of the Turtle Mountain Band of Chippewa Indians explains the
importance of Tribal citizens being able to engage in the nontribal political process:
Working together, tribes can accomplish anything. This decision shows the
impact tribal nations can make when they unite to stop the cycle of exclusion
and underrepresentation that has for generations prevented too many Native
people from having a say in state-level decision-making.
545
The case is currently pending an appeal in the Eighth Circuit Court of Appeals, where the
Secretary of State of North Dakota has challenged the plaintiffs’ authority to bring suit under
Section 2 of the VRA and argued that the remedial action to comply with the VRA was an
unconstitutional racial gerrymander.
546
If the state wins its appeal, a new map could undo
altogether the progress made in North Dakota and undermine the ability of future plaintiffs to
bring lawsuits under Section 2 of the Voting Rights Act throughout the Eighth Circuit.
Packing Supermajorities of Native Voters into a Single Electoral District
Lawmakers further dilute Tribal citizens’ voting strength by packing supermajorities of Native
voters into single electoral districts, even where the community is large enough to constitute
a majority and elect candidates of choice in more than one district.
547
Strikingly, in the 2021
redistricting cycle, at least two counties with large Native populations adopted electoral
schemes that undermined Native voting strength by packing Native voters into dilutive
districts, despite federal courts having previously forced those same counties to redesign
their electoral systems because they prevented Tribal citizens from participating equally in
local elections.
San Juan County, New Mexico. Native voters—primarily from the Navajo Nation—account for
nearly half the population in San Juan County, New Mexico. Despite this, Native voters have
been persistently excluded from equal participation in elections for the County Commission
due to the County’s discriminatory electoral system. Until 1980, voters in San Juan County
544 Prior to the 2022 election, the district containing the Turtle Mountain Reservation and Turtle Mountain Trust Lands had
been represented by Senator Richard Marcellais, a citizen of the Turtle Mountain Band of Chippewa Indians. See N.D.
Legislative Branch, Richard Marcellais (last visited May 15, 2024), https://ndlegis.gov/biography/richard-marcellais.
545 Native American Rights Fund, North Dakota Redistricting (Turtle Mountain Band of Chippewa Indians v. Michael Howe),
https://narf.org/cases/north-dakota-redistricting-map/.
546 See Brief of Defendant-Appellant, Turtle Mountain Band of Chippewea Indians v. Michael Howe, No. 23-3655 (8th Cir. Jan.
30, 2024).
547 See Order, Consent Decree, and Judgement, Winnebago Tribe v. Thurston County, No. 8:23-cv-00020 (D. Neb. Jan. 26,
2024); Complaint, Navajo Nation v. San Juan County, 1:22-cv-00095 (D.N.M. Mar. 27, 2024) (challenging County Commission
districts in San Juan County, New Mexico because they packed a supermajority of Native voters into a single district);
Austin Fisher, San Juan County Scraps Gerrymandered Voting Maps, SoURCe nm (Mar. 27, 2024), https://sourcenm.
com/2024/03/27/san-juan-county-scraps-gerrymandered-voting-map/ (describing allegations and outcome in Navajo
Nation v. San Juan County, which was dismissed with stipulations favorable to plaintiffs, requiring map drawers to enact a
new map with an additional Native majority district); Turtle Mountain, 2023 WL 8004576; Bone Shirt v. Hazeltine, 461 F.3d
it packed a supermajority of Native voters into a single legislative district, hampering their ability to elect a candidate of
choice in a second district).
PART III: Present Barriers to Political Participation 87
In the 2021 redistricting cycle, at
least two counties with large Native
populations adopted electoral
schemes that undermined Native
voting strength by packing Native
voters into dilutive districts, despite
federal courts having previously
forced those same counties to
redesign their electoral systems.
elected their County Commissioners at-large.
548
This
electoral system prevented Native voters from electing
a single candidate of choice to the County Commission.
As a result, the U.S. Department of Justice sued the
County, forcing it to enter a stipulation and adopt a
district-based system that would provide Native voters a
fairer chance to elect a candidate of choice to the County
Commission.
549
Unfortunately, even after being sued by the U.S.
Department of Justice, San Juan County continued to
dilute the Native vote through a discriminatory district-
based scheme. In the following decades, Native voters
were packed into just one of the county’s ve County Commission districts.
550
By 2020,
Native peoples made up 41.1 percent of the San Juan County population, but elected just a
single candidate of choice to the County Commission.
551
By contrast, non-Hispanic white
residents were only 35.8 percent of the population, but could elect candidates of choice in
the remaining four districts.
552
Because a supermajority of Native voters were packed into the
district with a functioning Native majority, they were unable to achieve representation even
close to proportional.
553
In 2021, Navajo Nation and the Navajo Nation Human Rights Commission challenged the
County Commission districts under Section 2 of the Voting Rights Act.
554
The plaintiffs
argued that by packing a supermajority of Native voters into a single district and cracking
the remaining Native voters across the four other districts, the electoral plan gave Native
Americans less opportunity to participate in the political process and elect candidates of their
choice to the County Commission than their white neighbors.
555
After more than two years
of costly litigation, the County agreed to adopt a second functioning majority Native district,
but it will only take effect beginning in 2026, meaning that Native voters in San Juan County
will live under illegal and racially discriminatory County Commission districts for another two
years before receiving a remedy.
556
548 See mCCool, et Al., native vote, supra note 73 at 51 (describing U.S. v. San Juan County).
549 Id.
550 See Fisher, supra note 547.
551 See Fisher, supra note 547; U.S. Census Bureau, 2020 Decennial Census, P1, P8.
552 See Fisher, supra note 547; U.S. Census Bureau, 2020 Decennial Census, P1, P8.
553 See Complaint at 18, 22-24, ECF No. 1, Navajo Nation v. San Juan County, No. 1:22-cv-00095 (D.N.M. Feb. 10, 2022). Native
Americans comprise the numerical majority (52.3 percent) of the voting age population in a second electoral district, but
due to differential turnout rates between white and Native residents, it would be almost impossible for Native voters to
elect a candidate of choice in that district. See id.
554 Id.
555 Id. at 24-30.
556 See Fisher, supra note 5 47.
88 Voting for Native Peoples: Barriers and Policy Solutions
Thurston County, Nebraska. In 2021, another repeat offender, Thurston County, Nebraska
for the third time adopted an electoral system for its Board of Supervisors that diminished
the voting strength of citizens of the Winnebago Tribe of Nebraska and the Omaha Tribe of
Nebraska.
557
Although Native people comprise nearly 60 percent of Thurston County, the
map only gave Native voters the opportunity to elect candidates of their choice in three of
the seven Supervisor districts.
558
Worse yet, the County adopted the 2021 map despite having
been informed by Tribal leaders and Native voters that the map would fail to provide citizens
of the Winnebago Tribe of Nebraska and the Omaha Tribe of Nebraska an equal opportunity
to participate in the political process.
559
Vice Chairman Brian Chamberlain of the Winnebago
Tribe of Nebraska said of the map:
Not only did the Thurston County Board of Supervisors reject the VRA-compliant
map shared by the Winnebago Tribe and the Omaha Tribe, but once the Tribes
made their concerns known, the Board decided to make its bad map even
worse, by reducing the number of Native Americans in [two of the districts that
might have allowed Native voters to elect a candidate of choice]. This is a slap
in the face to the Tribes and tribal members in the county, and shows another
example of discrimination on the part of the county against tribal members.
560
Remarkably, this was not the rst, or even the second, time Thurston County’s electoral
system prevented Native voters from achieving fair representation in the County. In two
prior redistricting cycles the county was forced—once by the U.S. Department of Justice
in a consent decree and later by a federal court in a suit by private plaintiffs—to redraw its
electoral map because it diluted the Native vote.
561
557 See Order, Consent Decree, and Judgement, Winnebago Tribe v. Thurston County, No. 8:23-cv-00020 (D. Neb. Jan. 26,
2024); Native American Rights Fund, Tribes and Voters Sue Nebraska County to Secure Equal Representation (Jan. 19, 2023),
https://narf.org/thurston-nebraska-redistricting/.
558 Complaint at 2, ECF No. 1, Winnebago Tribe v. Thurston County, No. 8:23-cv-00020 (D. Neb. Jan. 19, 2023).
559 Id. at 3-4.
560 Native American Rights Fund, Tribes and Voters Sue Nebraska County to Secure Equal Representation, supra note 557.
561 See id.; mCCool, native vote, supra note 73 at 51 (describing consent decree in U.S. v. Thurston County, where Thurston
County agree to move from at-large elections for its Board of Supervisors to district-based elections); Stabler v. Thurston
County, 129 F.3d 1015 (8th Cir. 1997) (upholding the district court’s order requiring Thurston County to create a third
majority-minority district for its Board of Supervisors that would allow citizens of the Winnebago Tribe of Nebraska and
Omaha Tribe of Nebraska to elect a candidate of choice).
PART III: Present Barriers to Political Participation 89
Systemic Barriers Compounding the Direct Barriers
Housing and Socioeconomic Conditions
The federal government’s removal, reservation, assimilation, and termination policies of the
nineteenth and twentieth centuries created systemic obstacles that compound the barriers
Tribal citizens face to full and equal participation in the nontribal political process —that is,
the political structures of local, state, and federal governments.
562
These obstacles extend
from reduced socioeconomic opportunities and negative health outcomes for Tribal citizens
to poor infrastructure and insufcient housing on Tribal lands. These conditions make it more
difcult for Native voters to access voter education materials, register to vote, cast a ballot,
and even have their vote count equally.
563
Native communities have persistently lower incomes and
higher rates of poverty than non-Natives. This is especially
true for Native people who live on reservations. The median
household income for Native Americans ($55,925) is
almost $20,000 less than the median household income
nationwide ($75,149) and nearly $25,000 less than the
median household income in white households ($81,423).
564
Similarly, Native Americans have the highest poverty rate (22.6 percent) of any racial or ethnic
group the Census Bureau tracks, with a rate more than double that of white Americans (9.2
percent) and more than 10 percentage points higher than the national rate (12.5 percent).
565
562 See Adam Crepelle, Federal Policies Trap Tribes in Poverty, ameRiCan BaR aSSoCiation (Jan. 6, 2023), https://www.americanbar.
org/groups/crsj/publications/human_rights_magazine_home/wealth-disparities-in-civil-rights/federal-policies-trap-
tribes-in-poverty/.
563 See oBStaCleS at eveRy tURn, supra note 224 at 34-39; white hoUSe RePoRt, supra note 289 at 18-19; Roundtable on
Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House (Feb. 19, 2024);
Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb. 19,
2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on Voting Barriers
and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election Administration
for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive Assistant to the
Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business Council, in Seabrook,
Willow Howard, Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); Interview with Peri Pourier, Citizen of the
Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th District, in Rapid City, S.D. (Apr.
16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview
with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director,
Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former
Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024); Interview with Donita
Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson, S.D. (Apr. 17, 2024);
Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024);
Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House
of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic Engagement Director,
Wisconsin Conservation Voters (May 13, 2024).
564 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Median Income in the Past 12 Months (in
race as American Indian or Alaska Native (AIAN) alone and non-Hispanic white alone.
565 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Poverty Status in the Past 12 Months, S1701.
The reported statistics are for the population reporting AIAN alone and non-Hispanic white alone as their race.
Native communities have
persistently lower incomes
and higher rates of poverty
than non-Natives.
90 Voting for Native Peoples: Barriers and Policy Solutions
On many reservations, the disparities are even worse. On the
Rosebud Indian Reservation, for example, the median household
income is just $30,284 and more than half the population (54.0
percent), including 62.4 percent of all children, live below the
poverty line.
566
On the Pine Ridge Reservation, where the Oglala
Lakota Nation is located and the median household income is
only $34,567, half of all people (50.2 percent) and 56.2 percent
of children live below the poverty line.
567
On the Tohono O’odham
Reservation, more than half of all children (51.3 percent) and 40.0
percent of the total population live below the poverty line.
568
On the
Navajo Nation, the median household income is $32,579 and 36.7
percent of the population and nearly half of all children (46.5 percent) live below the poverty
line.
569
On the Ho-Chunk Reservation, more than half of all children (50.4 percent) and 35.4
percent of the total population live below the poverty line. On the Spirit Lake Reservation,
more than a third of the population (33.9 percent and 39.5 percent of children) lives below the
poverty line.
570
On the Fort Peck Reservation, 34.3 percent of the population and 40.0 percent
of children live below the poverty line.
571
On the Blackfeet Reservation, an estimated 30.9
percent of the population and 34.7 percent of children live below the poverty line.
572
On the
Red Lake Reservation, 30.6 percent of the population and a third of all children live below the
poverty line.
573
Native peoples living on Tribal lands are also substantially more likely to be unhoused or
have inconsistent housing than Americans living outside of Tribal lands.
574
Native Americans
are overrepresented in the unhoused population, accounting for an estimate 1.5 times their
population share.
575
By contrast, white Americans are underrepresented in the unhoused
566 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Median Income in the Past 12 Months (in
Status in the Past 12 Months, S1701.
567 See id; U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Median Income in the Past 12 Months (in
568 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Poverty Status in the Past 12 Months, S1701.
569 U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Median Income in the Past 12 Months (in 2022
Status in the Past 12 Months, S1701.
570 See id.
571 See id.
572 See id.
573 See id.
574 U.S. deP’t oF hoUSinG and URBan develoPment: oFFiCe oF CommUnity PlanninG and develoPment, the 2023 annUal homeleSS
aSSeSSment RePoRt (ahaR) to ConGReSS: PaRt 1: Point-in-time eStimateS oF homeleSSneSS 2 (Dec. 2023), https://www.huduser.
[hereinafter “HUD, 2023 AHAR”] (“[I]ndigenous people
homelessness.”); U.S. deP’t oF hoUSinG and URBan develoPment, hoUSinG needS oF ameRiCan indianS and alaSka nativeS in tRiBal
aReaS: a RePoRt FRom the aSSeSSment oF ameRiCan indian, alaSka native, and native hawaiian hoUSinG needS 3 (Jan. 2017), https://
[hereinafter “HUD, AIAN hoUSinG RePoRt”].
575 See HUD, 2023 AHAR supra note 574; U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, ACS
Demographics and Housing Estimates, DPO5 (reporting AIAN alone or in combination with some other race). While Native
peoples make up an estimated 2 percent of the population, they account for an estimated 3.5 percent of the unhoused
population. Id.; HUD, AIAN hoUSinG RePoRt, supra note 573 at 13.
Native peoples living
on Tribal lands are also
substantially more likely
to be unhoused or have
inconsistent housing than
Americans living outside
of Tribal lands.
PART III: Present Barriers to Political Participation 91
population when compared to their overall population share.
576
And the disparities are
getting worse. Between 2022 and 2023, the number of Native Americans who were unhoused
increased at a rate (18 percent increase) nearly double that of the nation as a whole (11 percent
increase).
577
Even more Native peoples live in overcrowded homes or only have temporary
living arrangements. An estimated 15.9 percent of homes on Tribal lands are overcrowded,
compared to only 2.2 percent of houses nationwide, with about six percent of homes being
“severely”
578
overcrowded.
579
There are also many Tribal citizens who live temporarily with
relatives or friends, frequently moving between homes to avoid becoming unsheltered, with
an estimated 16.6 percent of households on Tribal lands sheltering an individual who has no
other place to live.
580
For individuals who are unhoused or have temporary or overcrowded living arrangements,
each step in the voting process can become more burdensome.
581
When eligible voters are
unhoused or move frequently, they are more likely to lack the requisite documentation needed
to register to vote and cast a ballot, especially if such documentation becomes lost or if the
individual elects to store it in a more permanent location away from where they are staying.
It can also be more difcult for voters with overcrowded or temporary living arrangements to
obtain the requisite documentation because they are not on listed on any ofcial documents
associated with the house where they are staying.
582
Voters without permanent housing are
also more likely to not be registered at the correct residence on Election Day and may be
turned away without casting a ballot as a result. These socioeconomic factors, in concert with
576 See HUD, 2023 AHAR, supra note 574; U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, ACS
Demographics and Housing Estimates, DPO5 (reporting non-Hispanic white alone). While white Americans make up an
estimated 58.9 percent of the population, they account for an estimated 49.7 percent of the unhoused population. Id.;
HUD, AIAN hoUSinG RePoRt, supra note 574 at 13.
577 HUD, 2023 AHAR, supra note 574 at 15, 26, 29.
578 Id.
1.5 persons per room. Id.
579 See HUD, AIAN hoUSinG RePoRt, supra note 574 at xxi, 73-76, 81. This metric climbs to a shocking 19 percent of households
Id. at 82.
580 See id. at 75, 79-81. One survey respondent reported that on the Pine Ridge Reservation, “People go from one family
member’s home to another; everyone’s homeless around here—but, they just stay with family members and extended
families until they get kicked out—it’s not good—they are not living in the street, but it’s still not good.” Id. at 80.
581 See oBStaCleS at eveRy tURn, supra note 225 at 38-40.
582 See Interview with Scott Herman, President, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy
Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District
26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban
South Dakota (Apr. 19, 2024).
92 Voting for Native Peoples: Barriers and Policy Solutions
more direct voting barriers, make it substantially more difcult for Native peoples than non-
Natives to participate equally in the nontribal political process.
583
Transportation and Physical Infrastructure
On top of the persistent poverty, there is insufcient transportation and physical infrastructure
on many reservations. Some Tribal citizens living on reservations lack even basic access to
electricity and running water.
584
According to the U.S. Water Alliance, “Native Americans
are more likely to face water issues than any other group.”
585
An estimated “58 out of every
1,000 Native American households lack complete plumbing” compared to only three in 1,000
white households.
586
Put differently, households belonging to Native residents are 19 times
more likely than white households to lack indoor plumbing.
587
On the Navajo Nation the
problem is markedly more severe, with an estimated 30 percent of families living without
running water.
588
Homes on Tribal lands are also disproportionately “unelectried.”
589
The U.S. Department of
Energy estimates that approximately “17,000 Tribal homes are unelectried impacting more
than 54,000 people.”
590
The communities with the highest rates of unelectried homes are
583 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business
of Legal Counsel, and Willow Howard, Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); Interview with Peri
Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th District,
in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D.
(Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and
Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of the Rosebud
Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17,
2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024);
Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota
(Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes
(Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of
the Montana House of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic
Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
584 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on
Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb. 19, 2024).
585 diG deeP, U.S. wateR allianCe, CloSinG the wateR aCCeSS GaP in the United StateS: a national aCCeSS Plan 22 (2019), https://
uswateralliance.org/wp-content/uploads/2023/09/Closing-the-Water-Access-Gap-in-the-United-States_DIGITAL.pdf.
586 Id.
587 Id.
588 Water as a Trust Resource: Examining Access in Native Communities: Hearing Before the S. Comm. on Indian Affs., 118th
Cong. 18 (2023) (statement of Hon. Crystalyne Curley, Speaker, Navajo Nation Council), https://www.indian.senate.gov/
wp-content/uploads/CHRG-118shrg54473.pdf.
589 U.S. deP’t oF eneRGy, tRiBal eleCtRiCity aCCeSS and ReliaBility: RePoRt to ConGReSS (Aug. 2023), https://www.energy.gov/sites/
default/files/2024-01/EXEC-2023-000952%20-%20Tribal%20Electricity%20Access%20Reliability%20Report%20
to%20Congress%20%28Final%20Draft%20-%20Clean%29-signed%20by%20S1.pdf [hereninafter “doe, tRiBal
eleCtRiCity”].
590 Id. at 52.
PART III: Present Barriers to Political Participation 93
the Hopi Tribe, where an estimated 35 percent of homes are unelectried, and the Navajo
Nation, where an estimated 21 percent of homes are unelectried.
591
Agreements with utility
companies that were reached in the mid-twentieth century without Tribal consultation can
also mean exorbitant electricity and broadband prices that can become prohibitive for Tribal
members living at or near the poverty line.
592
Indeed, Tribal communities “[g]enerally pay a
higher-than-average rate for their electricity” and “use a higher-than-average proportion of
their income toward energy costs.”
593
For citizens of the Rosebud Sioux Tribe living on the
reservation, electric bills alone can cost upwards of $500 per month—almost one fth of the
median household income on the reservation.
594
Given the high poverty rates, many Tribal members living on reservations also lack access
to reliable private transportation.
595
Instead, many families share cars and individuals rely
on friends and relatives for rides.
596
When individuals do have cars, gas can be prohibitively
expensive, meaning that individuals often try to combine as many errands as possible
into a single trip in order to save money.
597
When it comes time to register to vote or cast a
ballot, Tribal members often struggle to nd transportation to the polls.
598
If they do have
transportation, they often attempt to add their trip to the polling place to another errand in
order to avoid expending additional limited resources on gas.
599
There are also systemic disparities in broadband
access for Native peoples living on Tribal lands,
making it more difcult or even impossible for eligible
voters to use online voter information and voter
access tools, including online voter registration and
591 Id. at 51.
592 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); c.f. Interview with
Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024).
593 See doe, tRiBal eleCtRiCity, supra note 589 at iv.
594 Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
595 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024);
Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and
Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for
Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the
Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
596 See supra note 595 (listing sources).
597 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South
Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
598 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and
Kootenai Tribes (Apr. 30, 2024).
599 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024).
Native Americans have the lowest rates
of internet access of any racial or ethnic
group that the Census Bureau tracks.
94 Voting for Native Peoples: Barriers and Policy Solutions
polling place lookup systems.
600
Nationally, Native Americans have the lowest rates of internet
access of any racial or ethnic group that the Census Bureau tracks.
601
An estimated 91.0
percent of households nationwide have a computer with a broadband internet subscription,
compared to only 82.2 percent of households nationwide where the householder is Native
American.
602
On Tribal lands, the gap is even higher.
According to the Federal Communications Commission, only approximately 79.1 percent of
Americans on Tribal lands have access to internet coverage at speeds considered adequate
for use, compared to an impressive 98.8 percent of Americans in urban areas, 95.6 percent
of the United States as a whole, and 82.7 percent of Americans in other rural areas.
603
And on
some reservations, there is far less access. On the Hopi Reservation and the Navajo Nation,
only one third of all households (37.4 percent and 37.9 percent, respectively) have a broadband
internet subscription.
604
On the Pine Ridge Reservation, where the Oglala Lakota Nation is
located, and Rosebud Indian Reservation, where the Rosebud Sioux Tribe is located, just over
half (59.3 percent and 59.3 percent, respectively) of all households have a broadband internet
subscription.
605
Worse yet, numerous Tribal members report having internet at their home
that is too slow to use for important tasks like voter registration, meaning these statistics may
overestimate coverage rates.
606
600 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Roundtable on
Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers and Election
Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson, Executive
Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation Business
of Legal Counsel, and Willow Howard, Governmental Affairs Liaison, Yakama Nation (Mar. 22, 2024); Interview with Peri
Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th District,
in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D.
(Apr. 17, 2024); Interview with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and
Co-Executive Director, Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of the Rosebud
Sioux Tribe, Former Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17,
2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024);
Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota
(Apr. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024);
Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes
(Apr. 30, 2024); Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of
the Montana House of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic
Engagement Director, Wisconsin Conservation Voters (May 13, 2024); StRonGeR toGetheR RediStRiCtinG, supra note 417 at 10.
601 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Types of Internet Subscriptions by Selected
Characteristics, S2802.
602 See id.
603 See FedeRal CommUniCationS CommiSSion, FoURteenth BRoadBand dePloyment RePoRt, FCC 21-18, 20, Fig. 1 (Jan. 19, 2021), https://
docs.fcc.gov/public/attachments/FCC-21-18A1.pdf.
604 See U.S. Census Bureau, 2022 American Community Survey 5-Year Estimates, Types of Internet Subscriptions by Selected
Characteristics, S2802.
605 See id.
606 See Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024); Interview with Brittany Bryson,
Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation
Business Council, in Seabrook, Wash. (Mar. 11, 2024).
PART III: Present Barriers to Political Participation 95
Lack of broadband access makes it more difcult for voters to access important information,
like changes to polling locations, election dates, or the documentation necessary to bring to
a polling place. Lack of access also hampers the ability of Tribal governments and grassroots
organizations to assist voters with voter registration and education.
607
607 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024); Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller,
Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024).
96 Voting for Native Peoples: Barriers and Policy Solutions
Discrimination and Neglect: From Outright Hostility to Failure
to Offer Robust Options for Participation by Tribal Members and
Government-to-Government Consultation with Tribal Nations
One of the primary barriers to equal participation for Native peoples in the nontribal political
process is express racial discrimination. This includes discrimination by state and local
ofcials as well as by fellow voters. The impact of this discrimination is multifold. Initially,
discrimination has the obvious effect of hampering Native peoples’ ability to register to vote,
cast a ballot, or have their vote equally counted. But once Native voters
overcome the explicit barriers—often through litigation, advocacy, and
grassroots organizing—the impact of the persistent need to combat
voter suppression and the signicant energy Native peoples must
expend to exercise their basic and fundamental right to vote has the
long-lasting effect of discouraging civic participation.
608
Ofcials Interfering with Voting and Voter Registration Opportunities
One of the most common ways in which state and local ofcials nationwide inhibit Native
Americans’ ability to participate in the nontribal political process is by interfering with their
ability to register to vote and remain registered.
609
Ofcials do this by failing to provide the
voter registration services that are required by law, harassing nonpartisan Native organizations
and interfering with their voter registration efforts, and by improperly removing Native voters
from voter rolls.
610
Targeting voter registration activities and assistance is particularly
harmful to Native peoples. Because of the numerous hurdles Native
peoples face when attempting to register to vote, nonpartisan
voter assistance from community members and local ofcials is
critical to ensuring access to the ballot.
611
Removing Native voters
from the voter rolls and improperly rejecting their voter registration
applications likewise has a compounding effect. If the voter who faces
disqualication is not notied of their alleged ineligibility in time, they
will likely be unable to cast a ballot. In addition, for the many Native voters who are already
hesitant to participate in nontribal elections, being turned away at the polling place can
seriously discourage them from participating in future elections.
612
608 Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony of
April Ignacio.
609 See infra note 612-661 and accompanying text.
610 See id.
611 See supra Part III, Inadequate USPS Services and Vote by Mail, Transportation and Physical Infrastructure.
612 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Telephone
Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
Targeting voter
registration activities
and assistance is
particularly harmful to
Native peoples.
The impact of this
discrimination is
multifold.
PART III: Present Barriers to Political Participation 97
Failure to Offer Legally-Required Voter Registration Opportunities
The National Voter Registration Act of 1993 (NVRA) requires states to provide eligible
voters with an opportunity to register to vote and assistance with that registration any time
they access certain services at the Department of Motor Vehicles (DMV), public assistance
agencies, and agencies that provide services to persons with
disabilities.
613
Over the course of several years, South Dakota
systematically neglected its duty to provide the required voter
assistance services at DMVs and public assistance agencies,
especially in locations that primarily serve Tribal citizens.
614
State
ofcials persistently failed to offer voter registration applications
to recipients of state services, improperly claimed that sites
operated by government contractors that primarily serve Tribal
citizens and others living in rural areas need not offer voter
registration services at all, and even lost or failed to process
countless completed voter registration forms, among other
derelictions.
615
As a result, South Dakota saw a substantial drop in
voter registration services through public assistance agencies—
down from providing voter registration services to 7,000 citizens in 2004 to a mere 1,100
registrations in 2016.
616
This is especially harmful for eligible Native voters who commonly
struggle to access other opportunities for voter registration.
617
Kimberly Dillon, a member of the Rosebud Sioux Tribe, who attempted to register to vote at a
South Dakota state agency, explains the impact of the state’s decient registration system:
I was denied the opportunity to cast a vote in the 2020 presidential election
because the state didn’t process my voter registration. How many other
people faced this violation of our basic freedom to vote? We cannot allow voter
suppression to continue in South Dakota or anywhere in Native America.
618
In May 2022, following a lawsuit by the Rosebud Sioux Tribe, the Oglala Lakota Nation, and
several Tribal members, a federal court determined that South Dakota systematically failed
to offer voter registration and assistance services and trainings at its Department of Public
Services (the agency that provides driver’s licenses) and its Department of Social Services in
violation of the NVRA.
619
Several months later, South Dakota agreed to a settlement requiring
613 See 52 U.S.C. §§ 20504 (DMV registration), 20506 (public assistance agencies and services for persons with disabilities).
614 See Native American Rights Fund, South Dakota Voter Registration (Rosebud Sioux Tribe v. Barnett), https://narf.org/cases/
south-dakota-voter-registration/ [hereinafter “NARF, South Dakota Voter Registration”]; Letter from the Rosebud Sioux
Tribe, Oglala Sioux Tribe, and Four Directions to Steve Barnett, Secretary of State of South Dakota regarding Notice of
Noncompliance with Sections 5 and 7 of the National Voter Registration Act (May 20, 2020), available at https://narf.org/
nill/documents/20200520NVRA-SD-ltr.pdf.
615 See supra note 614 (listing sources).
616 See NARF, South Dakota Voter Registration, supra note 614.
617 See supra Part III, Inadequate USPS Services and Vote by Mail; Part III, Systemic Barriers Compounding the Direct Barriers.
618 See NARF, South Dakota Voter Registration, supra note 614.
619 See Rosebud Sioux Tribe v. Barnett, 603 F.Supp.3d 783 (D.S.D. 2022).
Over the course of several
years, South Dakota
systematically neglected its
duty to provide the required
voter assistance services at
DMVs and public assistance
agencies, especially in
locations that primarily
serve Tribal citizens.
98 Voting for Native Peoples: Barriers and Policy Solutions
it to provide equal access to voter registration services along with improved training and
accountability measures for state ofcials.
620
Obstructing Voter Registration Drives
In the lead up to the November 2020 election, Beltrami County and Cass County interfered with
an unprecedented and nonpartisan effort to register thousands of eligible Native Americans
to vote throughout Minnesota.
621
Over the course of eight days, in compliance with Minnesota
law,
622
Tribal members collected an estimated 8,000 completed voter registration applications
from eligible voters living on Tribal lands—with about 5,500
coming from the Red Lake Nation
623
and the remaining
primarily from the Leech Lake Band of Ojibwe
624
and the
White Earth Nation
625
—and timely returned the forms
to county auditors.
626
On the nal day of the regular
voter registration period, Beltrami County and Cass
County attempted to reject numerous voter registration
applications from Tribal members—possibly in violation of
state law.
627
In Beltrami County, staff in the County Auditor’s ofce claimed that some Tribal members’
voter registration forms were illegible while others were incomplete because a box requesting
the applicant’s state identication number or the last four digits of their Social Security
Number was left blank.
628
Notably, this question is one that Native applicants who live on
Tribal lands are more likely than others to have trouble completing. Indeed, Native peoples
disproportionately lack state-issued identication and those without state-issued ID would
620 See Settlement Agreement and Stipulated Order of Dismissal, Rosebud Sioux Tribe v. Barnett, ECF No. 129-1, No. 5:20-cv-
05058 (D.S.D. Aug. 23, 2022).
621 See Letter from Steven D. Sandven on Behalf of Four Directions Native Vote to Steve Simon, Minnesota Secretary of State
(Oct. 16, 2020) [hereinafter “Oct. 16, 2020, Four Directions Letter]; Letter from O.J. Semans, Sr., Co-Executive Director,
Four Directions Native Vote to Steve Simon, Minnesota Secretary of State (Jul. 20, 2022) [hereinafter “Jul. 20, 2022, Four
Directions Letter].
622 see
Steve Simon, Voter Registration Drives, https://www.sos.state.mn.us/elections-voting/get-involved/voter-registration-
drives/.
623 The Red Lake Nation is federally recognized as the Red Lake Band of Chippewa Indians, Minnesota. See 89 Fed. Reg. 944
(Jan. 8, 2024).
624 The Leech Lake Band of Ojibwe is federally recognized as a band of the Minnesota Chippewa Tribe. See id.
625 The White Earth Nation is federally recognized as a band of the Minnesota Chippewa Tribe. See id.
626 See Hannah Olson, Unprecedented Push for Indigenous Voter Participation Could Shake Up Election, BemidJi PioneeR (Oct. 30,
2020), https://www.bemidjipioneer.com/news/unprecedented-push-for-indigenous-voter-participation-could-shake-up-
election; Oct. 16, 2020, Four Directions Letter, supra note 620; Jul. 20, 2022, Four Directions Letter, supra note 620.
627 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
628 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra
County Auditor staff claimed some forms were incomplete because Box 7 on those forms, which requests a Minnesota-
to certify that they “do not have a MN-issued ID card, or a Social Security Number[,]” was left unchecked. See minneSota
SeCRetaRy oF State, minneSota voteR ReGiStRation aPPliCation, https://www.sos.state.mn.us/media/1587/minnesota-voter-
registration-application.pdf [hereinafter “minneSota voteR ReGiStRation aPPliCation”].
Beltrami County and Cass County
interfered with an unprecedented
and nonpartisan effort to register
thousands of eligible Native
Americans to vote throughout
Minnesota..
PART III: Present Barriers to Political Participation 99
need to remember the last four digits of their Social Security Number to complete the form.
629
Rather than accept and process the forms as timely submitted, following up with the
applicants as-needed to obtain the missing or hard-to-read information as Minnesota law
requires,
630
Beltrami County informed Four Directions Native Vote that it would reject any
application with missing or illegible information and make no further attempts to allow
applicants to cure their applications.
631
Moreover, because Beltrami County waited until the
last day of the regular voter registration period to inform Four Directions Native Vote of its
astonishing decision to disregard state law, the organizers of the registration drive were
left with no time to attempt to contact the applicants themselves prior to the registration
deadline.
632
As a result, numerous Native voters in Beltrami County, including many who
registered for the rst time to vote in nontribal elections, likely had their voter registration
applications rejected.
633
In May 2022—more than a year and a half after the voter registration drive, but just a few
months before the 2022 election in which Beltrami County ofcials faced re-election—the
Beltrami County Sheriff’s Ofce opened a criminal investigation into the voter registration
drive at the request of the Beltrami County Auditor and State’s Attorney.
634
While the
investigation was later abandoned, organizers believe it was “designed to suppress Native
American voter participation in Beltrami County in the upcoming 2022 election[.]”
635
Cass County also attempted to improperly reject more than one hundred voter registration
applications from Tribal members that were collected by organizers as a part of their get
out the vote efforts.
636
On the nal day of the registration period, staff at the Cass County
Auditor’s ofce performed a “cursory review” of more than 700 voter registration applications
submitted by Native organizers.
637
The ofce quickly rejected 176 forms, claiming they would
629 See supra
application permits applicants to complete the form without providing their Minnesota-issued driver’s license or
felony punishable by 5 years in prison and a $10,000 penalty that they “do not have a MN-issued driver’s license, a MN-
issued ID card, or a Social Security Number.” See minneSota voteR ReGiStRation aPPliCation, supra note 628. If a Tribal member
registration drive, they could not truthfully check this box. When informed about the disparities in access to state-issued
Tribal ID number. See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note
Minnesota
no space to write a TribalSee minneSota voteR ReGiStRation aPPliCation, supra note 628.
630 See Minn. Stat. § 201.071 (“The election judges shall request an individual to correct a voter registration application if it is
id. § 201.061.
631 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
632 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
633 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621. Minnesota
does allow same day registration, but applicants who use that option are required to present additional documents that
a voter who pre-registered would not need to bring. See
Steve Simon, Elections and Voting: Register on Election Day, https://www.sos.state.mn.us/elections-voting/register-to-vote/
register-on-election-day/. This means voters who believed they were pre-registered but had their application rejected
would likely have to return home to get additional documents in order to cast a ballot on Election Day.
634 See id.
635 Id.
636 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
637 See id.
100 Voting for Native Peoples: Barriers and Policy Solutions
not accept applications from residents of other counties, even though Minnesota law allows
for “voters to submit their voter registration applications to any county auditor[.]”
638
Worse
yet, when organizers reviewed the rejected applications, they discovered that 155 of the 176
rejected applications were in fact completed by Tribal members living in Cass County.
639
Staff
in the Cass County Auditor’s ofce ultimately accepted the 155 previously rejected forms from
Beltrami County residents on the day after the regular voter registration deadline.
640
However,
they refused to accept the remaining 21 forms to be passed along to the correct ofcials in
other counties as timely submitted, even though Minnesota law permits a voter registration
form to be returned to “any county auditor.”
641
Instead, staff called law enforcement in an
attempt to force organizers to leave the premises.
642
Harassment of Nonpartisan Native Organizers
In Cascade County, Montana, election ofcials have harassed Native organizers who provide
important voter education and registration assistance to Native residents.
643
On one occasion,
when organizers from the nonpartisan nonprot Western Native Voice—who were Tribal
members themselves—attempted to return the completed voter registration applications
they collected from eligible Native voters residing in Cascade County, they were met with
skepticism and harassment by the staff member at the Cascade County Clerk’s ofce who
was supposed to assist them.
644
The staff member questioned
the organizers and suggested that the forms they were
returning had somehow been faked.
645
The staff member
even demanded that the organizers provide a handwriting
sample to prove that they had not lled out the applications
themselves.
646
This demand was particularly pernicious given
that no Montana law or regulation requires such a sample,
nor would Montana law even permit a county clerk to reject
a voter registration application on the basis of a makeshift
handwriting comparison.
647
638 See Minn. Stat. § 201.022; Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra
note 621.
639 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
640 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
641 See Minn. Stat. § 201.022; Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra
note 621.
642 See Oct. 16, 2020, Four Directions Letter, supra note 621; Jul. 20, 2022, Four Directions Letter, supra note 621.
643 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024), Testimony of
Ronnie Jo Horse, Executive Director, Western Native Voice.
644 See id.
645 See id.
646 See id.
647 See Mt. Stat. § 13-2-110 (“Each application for voter registration must be accepted and processed as provided in rules
id. § 13-2-
109 (authorizing the Secretary of State to adopt rules related to voter registration); A.R.M. 44.3.2001-.2016.
The staff member even
demanded that the organizers
provide a handwriting sample
to prove that they had not
lled out the applications
themselves.
PART III: Present Barriers to Political Participation 101
Western Native Voice Executive Director Ronnie Jo Horse, who is a citizen of the Oglala
Lakota Nation and a descendant of the Northern Cheyenne Nation, explains that this type
of harassment, especially when perpetrated by government ofcials, “dims [the organizers’]
light,” discouraging them from participating in future voter registration efforts.
648
And it can
have a compounding effect on Native peoples’ ability to access the ballot: Tribal members
in Montana face numerous barriers to accessing voter registration, including insufcient
mail and broadband service at home and hostility when accessing county services, so voter
registration efforts hosted and staffed by community members play a critical role in ensuring
they can exercise their right to vote.
649
Leaving Native Voters Off a Makeshift Voter Registration List
During an important school board referendum in 2022 in Menominee County, Wisconsin,
where 79.5 percent of the population is Native American, the non-Native County Clerk publicly
apologized for using a makeshift voter registration list that inexplicably left off swaths of
registered voters.
650
Relying on a list she made herself that apparently inadvertently excluded
certain names, the clerk told numerous voters, who were almost entirely Native, that they were
no longer registered in the county and would have to re-register.
651
The Clerk’s carelessness
caused signicant voter confusion and sowed mistrust of county ofcials by Tribal
members—a community that is already hesitant to interact with nontribal government.
652
Outright Refusal to Provide On-Reservation Voting Locations
Numerous localities have refused to provide equal in-person voting opportunities for Native
voters, even when required by law.
In 2020, in response to the COVID-19 pandemic, Montana
switched to a primarily mail system for its elections.
653
However, Pondera County, which
shares geography with parts of Blackfeet Reservation, elected to maintain an in-person
voting location at their majority-white county
seat.
654
This ensured that the predominately white
residents would have nearby access to the in-
person voting, while forcing Blackfeet citizens to
travel 120 miles round trip just to cast their ballot.
655
And importantly, mail voting was not a reasonable
alternative for Blackfeet Tribal members due to poor
648 Id.
649 See id.
650 See Telephone Interview with Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters (May 13, 2024).
651 See id.
652 See id.
653 See Oversight of the Voting Rights Act: The Evolving Landscape of Discrimination, Hearing Before the H. Comm. on the
Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 117th Cong. (2022) (Written Statement of
https://docs.house.gov/meetings/JU/JU10/20210422/112481/HMTG-117-JU10-Wstate-
DeLeonJ-20210422.pdf.
654 See id.
655 See id.
It was not until a federal court ordered
the county to provide on-reservation
access to in person voting that Pondera
County nally did so..
102 Voting for Native Peoples: Barriers and Policy Solutions
mail service on the reservation.
656
Despite knowing how far Blackfeet citizens would be forced
to travel to vote, Pondera County ofcials refused to open an in-person voting location on the
reservation.
657
It was not until a federal court ordered the county to provide on-reservation
access to in person voting that Pondera County nally did so.
658
In 2022, two counties in Nevada refused to provide equal opportunities to voters on
reservations. Nye County refused to provide an in-person voting location to voters on the
Yomba Shoshone Reservation, as required by state law.
659
Elko County refused to place a ballot
drop box on the Duck Valley Reservation, even after being ordered to do so by a court, forcing
state ofcials to step in to ensure delivery of the drop box.
660
The County further attempted to
offer on-reservation voting for only a third of the time that in-person voting would be available
in the county seat.
661
Lack of Opportunity for Government Consultation
States and localities persistently fail to offer opportunities for Tribal nations to engage in
robust government-to-government consultations on policies that affect Tribal nations and
their citizens. This type of consultation is important because it honors the inherent authority
of Tribal nations to govern and provide for the health, safety, and welfare of their citizens.
662
Providing a formal venue for consultation can also help to encourage political participation
even where the climate might otherwise be hostile toward Native peoples.
663
A lack of robust opportunities for consultation was
abound during the 2021 redistricting process. In
Washington and South Dakota, for instance, Tribal leaders
could deliver testimony like other citizens, but the state
offered no opportunity for direct consultation.
664
In
Arizona, there was initially outreach to Tribal leaders but
at the last minute, the Arizona Independent Redistricting
Commission canceled the meeting that had been billed as
656 See id.; supra Part III, Inadequate USPS Services and Vote by Mail.
657 See See Oversight of the Voting Rights Act: The Evolving Landscape of Discrimination, Hearing Before the H. Comm. on
the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, 117th Cong. (2022) (Written Statement of
658 See id.; Blackfeet Nation v. Pondera County, 4:20-cv-00095 (D. Mont. Oct. 14, 2020), ECF No. 9-1.
659 See supra Extreme Physical Distances to In-Person Voting and Voter Services.
660 See id.
661 See id.
662 See G.A. Res. 61/295, United Nations Declaration on the Rights of Indigenous Peoples, art. XIX (Sept. 13, 2007) (“States
shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or
administrative measures that may affect them.”).
663 See StRonGeR toGetheR RediStRiCtinG, supra note 417.
664 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024);
Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate and
Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
Consultation is important because
it honors the inherent authority of
Tribal nations to govern and provide
for the health, safety, and welfare
of their citizens.
PART III: Present Barriers to Political Participation 103
a Tribal consultation.
665
In North Dakota, the Redistricting Committee of the State Legislature
refused to hold a single hearing on Tribal lands, despite requests from Tribal leaders to do
so in order to make participation more accessible for Tribal members with limited access
to transportation.
666
Worse yet, when Tribal leaders reached out to state ofcials to make a
formal request regarding district boundaries, the request was ignored.
667
Instead, legislators
suggested they understood the needs of Tribal members better than the Tribal leaders.
668
The lack of opportunity for formal consultation is compounded when Tribal nations share
geography with more than one state or locality, which is extremely common.
669
Indeed, a
supermajority of Tribal lands cross at least two counties—and often more—with numerous
Tribal nations traversing state boundaries as well.
670
The Navajo Nation, for instance, shares
geography with three states and 13 counties. This can make government consultation
complicated because Tribal leaders have to work with different ofcials at the same level
of government across multiple jurisdictions whose actions affect Tribal nations and their
citizens, rather than simply consulting with ofcials from a single jurisdiction at each level.
671
Tribal nations often report having a positive working relationship with one county that shares
geography with the reservation, while other counties are more difcult to work with.
672
It
further complicates their efforts to advocate for their citizens when the counties or states
employ different rules.
673
665 See StRonGeR toGetheR RediStRiCtinG, supra note 417 at 8.
666 See id. at 9.
667 See id.; Letter from Jamie Azure, Chairman, Turtle Mountain Band of Chippewa Indians, and Douglas Yankton, Sr., Chairman,
Spirit Lake Nation, to Doug Burgum, Governor, State of North Dakota, Kim Koppleman, Speaker, North Dakota House of
Representatives, Chet Pollert, Majority Leader, North Dakota House of Representatives, Joshua Boschee, Minority Leader,
North Dakota House of Representatives, Rich Wardner, Majority Leader, North Dakota State Senate, and Joan Heckaman,
Minority Leader, North Dakota State Senate (Nov. 1, 2021),
Letter%20%28Exhibit%201%29_FILED.pdf.
668 See id.
669 See, e.g., Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter
House (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo
Nation Council (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation
(Feb. 21, 2024); Torey Dolan, County Lines/State Lines/Tribal Lands Map (last accessed Jun. 11, 2024), https://asu.maps.
arcgis.com/apps/instant/basic/index.html?appid=435ee0fd01a94b6aaf5f54a0229cc9c2&locale=en%3Dus.
670 See id.
671 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024); Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl
Capoeman-Baller, Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024); Telephone
Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House of
Representatives for the 15th District (May 1, 2024).
672 See supra note 671 (listing sources).
673 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter House
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation
Council (Feb. 19, 2024).
104 Voting for Native Peoples: Barriers and Policy Solutions
Hostility in Border Towns, at the Polling Place,
and from Government Ofcials
Hostility at and Around Border Town Polling Places
Native voters throughout the United States report incidents of voter intimidation at or
immediately outside of polling places, especially when polling places are located outside of
Tribal lands in nearby towns—commonly referred to as “border towns”—and staffed by non-
Native poll workers.
674
Native voters commonly report non-Natives poll workers harassing
them or treating them differently than white voters.
675
Moreover, some Native voters have been
forced to cast their ballots in locations that felt designed to intimidate them.
676
And even where
voter intimidation occurs in other communities, hearing about it can have a deleterious effect
on Native voters’ willingness to go to the polling place or engage with the nontribal electoral
process.
677
It is quite common for Native voters to experience outright hostility and worse service than
their non-Native fellow voters at the polling place.
678
Numerous Native voters report attempting
to vote with their Tribal ID in states that require voter identication and being either turned away
or made to feel like it was a burden for poll workers to conrm their identity based on Tribal
ID.
679
This is the case even where Tribal ID is expressly
recognized as a valid form of identication under state
law.
680
Sometimes, poll workers’ hesitancy to allow Tribal
ID might be due to a lack of training, but numerous Native
voters report having their Tribal ID rejected even when
Tribal nations have worked directly with state and local
ofcials to ensure that they have examples of Tribal ID for
674 See oBStaCleS at eveRy tURn, supra note 225 at 44-46; white hoUSe RePoRt, supra note 290 at 16-17; U.S. Comm’n on Civil RiGhtS,
diSCRimination aGainSt native ameRiCanS in BoRdeR townS: a BRieFinG BeFoRe the United StateS CommiSSion on Civil RiGhtS held
in waShinGton, d.C. (Mar. 10, 2011), https://www.usccr.gov/reports/2011/discrimination-against-native-americans-border-
towns.
675 See, e.g., Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Interview
with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers
and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
676 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Donita Loudner, Buffalo County Commissioner,
Citizen of the Crow Creek Sioux Tribe, in Fort Thompson, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election
Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024), Testimony of Candi Brings Plenty.
677 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council
(Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
678 See, e.g., Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Interview
with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on Voting Barriers and Election
Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
679 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable
on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers
and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024); Roundtable on Voting Barriers and
Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); supra
Laws on Tribal Citizens.
680 See supra note 679 (listing sources).
It is quite common for Native voters
to experience outright hostility and
worse service than their non-Native
fellow voters at the polling place.
PART III: Present Barriers to Political Participation 105
comparison.
681
For instance, Councilmember Mikah Carlos from the Salt River Pima Maricopa
Indian Community reported numerous issues with her attempt to use Tribal ID to vote in
Arizona.
682
In 2016, she was directly informed by poll workers that she could not use her Tribal
ID to vote.
683
In 2022, when Councilmember Carlos presented her Tribal ID at her polling place, a
poll worker accepted it, but told her that it was an “inconvenience” to do so.
684
When poll workers improperly tell a voter they cannot use their valid Tribal ID as voter
identication, the effect is two-fold: Most obviously, it makes casting a ballot more burdensome
for voters in the moment.
685
Beyond the immediate effect, this type of hostility toward voters
using Tribal ID intimidates Tribal members and discourages them from participating in future
federal, state, and local elections.
686
Other times, Native voters experience hostility just for attempting to cast a ballot. This is the
case on the Rosebud Reservation, even when polling places are located on the reservation
but staffed by non-Native poll workers.
687
Rosebud Sioux Tribe Treasurer Louis “Wayne” Boyd
remarked that “it feels as if the people who run the polls are afraid of our people.”
688
Boyd
witnessed one incident in particular that stands out: In 2022, an elder needed to ll out a
ballot outside of a Rosebud Reservation polling place due to mobility issues.
689
When a non-
Native poll worker saw what was happening, the poll worker became extremely hostile and
ultimately called the police, accusing the elder of fraud.
690
Boyd emphasizes that, while having
the police called on voters is scary anywhere, it is particularly frightening on a reservation.
691
Because Tribal nations and the federal government are the primary authorities that exercise
criminal jurisdiction on Tribal lands, responding police are often federal ofcials—not the local
sheriff—and any resulting criminal charges could be serious federal ones.
692
The gravity of
potential charges, along with federal ofcials’ historic abuses of Native peoples, can make the
situation feel far more serious than it would be outside of a reservation where the responding
authority is more likely to be a local police ofcer.
693
Experiencing, or even seeing, an incident
like this makes Tribal members extremely hesitant to return to vote in the future.
694
681 See id; Phone Interview with Nicole Donaghy, Hunkpapa Lakota, Executive Director, North Dakota Native Vote (Jun. 17,
2024).
682 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024).
683 See id.
684 See id.
685 See id.; Phone Interview with Nicole Donaghy, Hunkpapa Lakota, Executive Director, North Dakota Native Vote (Jun. 17,
2024).
686 See supra note 685 (listing sources).
687 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
688 See id.
689 See id.
690 See id.
691 See id.
692 See id.
693 See id.
694 See id.
106 Voting for Native Peoples: Barriers and Policy Solutions
Councilwoman Jennifer Finley from the Confederated Salish and Kootenai Tribes described an
incident that inspired her to become a poll worker.
695
Several years ago, when Councilwoman
Finley voted at a polling place in the predominately white county seat, she was the only Native
person in the room—staff and voters alike.
696
While the poll workers were friendly to the white
voters checking in before her, they became standofsh when she reached the front of the
line.
697
After voting, when Councilwoman Finley returned her ballot to the same poll worker,
that poll worker looked at her selections—something poll workers are not permitted to do—
undermining Finley’s right to vote a secret ballot, and leading her to wonder whether the
ofcial properly processed her ballot.
698
According to Councilwoman Finley, experiences like
these are why it is critical to ensure that polling places are located on Tribal lands in buildings
where Native voters feel comfortable and are staffed by trusted members of the community
who will make Native voters feel welcomed.
699
Tribal members also consistently report being forced to cast their ballots in places that are
dehumanizing or felt intended to make them uncomfortable. Perhaps most egregiously, voters
in one Hyde County South Dakota town were once forced to cast their ballots in a chicken
coop.
700
In Rapid City, South Dakota, where there is a substantial urban Native population,
there has been a concerted effort by local ofcials to relocate polling places to churches,
which has made Tribal members, who themselves and
whose relatives suffered horric abuses committed
by Catholic Church ofcials at boarding schools, feel
extremely uncomfortable voting in person.
701
One Oglala
Lakota Tribal member reported that their mother, who is a
survivor of boarding school abuse, no longer votes after her
polling place was relocated to a Catholic church.
702
Nearby,
a polling place that serves voters from the Oglala Lakota
Nation is located right next to a bar named the “TK Saloon,” which is commonly referred to
as the “Triple K Saloon” because of the widespread understanding amongst Native peoples
in the community that the building is a sanctuary for white supremacy.
703
Likewise, during
the 2020 election, a sign was put up across from a polling place on the Flathead Reservation,
where the Confederated Salish and Kootenai Tribes are located, that expressed an anti-Native
695 See Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai
Tribes (Apr. 30, 2024).
696 See id.
697 See id.
698 See id.
699 See id.
700 See Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024).
701 See Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024),
Testimony of Candi Brings Plenty.
702 See id.
703 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024).
Tribal members also consistently
report being forced to cast
their ballots in places that are
dehumanizing or felt intended to
make them uncomfortable.
PART III: Present Barriers to Political Participation 107
The acts of discrimination
against Native peoples in
border towns are enduring.
sentiment.
704
Having polling places near locations that are known for being anti-Native can
make some Tribal members fearful to vote in person because they are fearful of who they will
encounter and how they might be treated.
705
Hearing of voter intimidation at polling places or election facility nearby a reservation or
other Native communities also has a negative effect on Native voters’ willingness to vote in
person.
706
During the 2022 election in Arizona, for example, there was widespread reporting of
militias showing up to ballot drop box locations with guns and in tactical gear to harass voters;
these actions were eventually halted by a federal court.
707
On Navajo Nation, many voters
heard news of the militias and are now afraid to vote in person.
708
Similarly, in Cascade County,
Montana, where Little Shell Chippewa Tribe is located and where there is a large population
of Native voters belonging to Tribal nations that are located throughout the state, armed
residents dressed in military fatigues showed up to the County Clerk’s ofce in an effort to
disrupt the certication of the 2022 midterm election.
709
Seeing this type of voter intimidation
has a particularly harmful effect on Native voters, who are often already hesitant to participate
in nontribal elections and who have personal experiences of hostility from non-Natives,
including government ofcials.
710
Border Town Hostility Away from the Polling Place
Even when it happens outside of the polling place, discrimination in border towns can make
Native peoples less comfortable engaging in the nontribal political process, especially when
the discrimination happens in localities where voting barriers are common, is related to
elections or candidates, or is carried out by government ofcials.
And unfortunately, the acts of discrimination against Native
peoples in border towns are enduring. In the leadup to the 2020
election, for example, a sign marking the Red Lake Nation was
defaced with swastika and the words “Trump 2020.”
711
In 2024
in Farmington, New Mexico—a county that only months earlier
704 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
705 See id.
706 See, e.g., Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council
(Feb. 19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council; Roundtable on Voting Barriers and
Election Administration for Tribal Citizens in Montana (Apr. 29, 2024).
707 See Rachel Leingang, “We’re Watching You”: Incidents of Voter Intimidation Rise as Midterm Elections Near, GUaRdian (Nov.
4, 2022), https://www.theguardian.com/us-news/2022/nov/04/voter-intimidation-midterm-elections-arizona; Yvonne
Wingett Sanchez, Alleged voter intimidation at Arizona drop box puts ofcials on watch, Washington Post (Oct. 20, 2022),
https://www.washingtonpost.com/politics/2022/10/20/arizona-ballot-drop-boxes/; Temporary Restraining Order, ECF No. 51,
Arizona Alliance for Retired Americans v. Clean Elections USA, No. Case 2:22-cv-01823 (Nov. 1, 2022).
708 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb.
19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council.
709 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024), Testimony of
Rina Moore.
710 See Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo Nation Council
(Feb. 19, 2024), Testimony of Hon. Crystalyne Curley, Speaker, Navajo Nation Council; Roundtable on Voting Barriers and
Election Administration for Tribal Citizens in Montana (Apr. 29, 2024), Testimony of Rina Moore.
711 See Darren Thompson, Red Lake Welcom Sign Defaced with Nazi Swastika and Trump 2020 Vandalism, native newS online
(Oct. 15, 2020), https://nativenewsonline.net/currents/red-lake-welcome-sign-defaced-with-nazi-swastika-and-trump-
2020-vandalism.
108 Voting for Native Peoples: Barriers and Policy Solutions
settled a legal dispute regarding its discriminatory County Commission districts—a graduating
Native high school student was forced to remove a traditionally beaded graduation cap during
the graduation ceremony as the Star Spangled Banner began to play.
712
Government ofcials often participate directly in the harassment of Tribal members. On the
Pine Ridge Reservation, mail delivery coordinated by the post ofce is extremely delayed; it
sometimes takes months for a P.O. holder to access a package.
713
When customers speak up,
employees often get upset and withhold mail in retaliation.
714
In Pondera County, Montana,
which shares geography with parts of the Blackfeet Nation, County ofcials regularly refuse
to provide service to county residents living on the reservation.
715
Pondera County emergency
services and the coroner will not take calls for homes on the Blackfeet Reservation, forcing
residents to instead seek services from neighboring Glacier County, which serves the
remaining parts of the reservation.
716
And this sentiment goes all the way to top ofcials in
Pondera County.
717
For example, on numerous occasions when Blackfeet Tribal Council
members have attempted to engage with the Pondera County Commissioners, they have been
shunned, with one county commissioner even refusing to shake hands with Tribal leaders.
718
Making It More Difcult to Find and Access Polling Places
Another way in which state and local ofcials prevent Native voters from casting their ballots,
either intentionally or through often willful ignorance, is by making it more difcult for voters
on Tribal lands and in other Native communities to nd their polling place. Throughout South
Dakota, Tribal members report that polling locations constantly change without notice to the
voters.
719
In 2022, on the Pine Ridge Reservation, where the Oglala Lakota Nation is located, a
polling place was moved by County ofcials during the early voting period and with very little
publicity.
720
The only Election Day sign telling voters where the new polling place was located
was a mile away at an intersection, confusing voters.
721
When one Tribal member had basic
signs made directing voters where to go and placed them in locations where voters would see
712 Arlyssa D. Becenti, New Mexico School Conscates a Native Student’s Beaded Graduation Cap, Sparking Protests, az
CentRal (May 20, 2024), https://www.azcentral.com/story/news/local/arizona-education/2024/05/20/new-mexico-school-
wont-let-native-student-wear-graduation-reagalia/73770639007/.
713 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024).
714 See id.
715 See Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana
House of Representatives for the 15th District (May 1, 2024).
716 See id.
717 See id.
718 See id.
719 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe,
in Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban
South Dakota (Apr. 19, 2024).
720 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024).
721 See id.
PART III: Present Barriers to Political Participation 109
them, the County forced her to take them down.
722
Last minute polling place shifts like this
are common on the Oglala Lakota Nation, so people often end up going to the wrong polling
place.
723
Making matters worse, poll workers are often unhelpful or hostile when Native voters show
up to a polling place and are not on the rolls. One year, Rosebud Sioux Tribe Treasurer Louis
“Wayne” Boyd attempted to vote at his normal polling place and was told that he was not on
the voter rolls.
724
After half an hour of arguing with the poll worker, an ofcial nally informed
him that he needed to go to a different polling place.
725
Inexplicably, however, Boyd’s wife, who
lived in and was registered to vote at the same home as him, was still on the voter rolls at
the original polling place they had gone to.
726
While Boyd had the resources to cast his ballot
elsewhere, for many low income Native voters and those who are already hesitant to interact
with nontribal government ofcials, this type of interaction can discourage them from ever
attempting to vote in the future.
727
Legislative Backlash to Increased Political Power
Racial discrimination against Native voters, especially by state legislatures, is often a direct
response to gains in Native peoples’ political power.
728
In 2020, largely due to creative and
persistent get out the vote efforts by Tribal nations and Native organizers, Native peoples turned
out at higher rates than ever before and proved to be a key
voting bloc in numerous states in the presidential election, as
well as elections for state and local ofces.
729
The backlash in
places with large Native populations was swift: following the
2020 election, states with large Native populations, including
Arizona, Kansas, and Montana, enacted new restrictive laws
that disproportionately burden Native peoples and make it
more difcult for them to cast a ballot.
730
In Arizona, where the number of Native voters exceeded tight margins in numerous important
races in both the 2018 and 2020 elections, the state legislature passed a law in 2021 that
722 See id.
723 See id.
724 See Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024).
725 See id.
726 See id.
727 See id.
728 See, e.g., Cecily Hilleary, Despite Gains, Native Americans Still Face Voting Barriers, voa newS (Jun. 15, 2024), https://www.
voanews.com/a/despite-gains-native-americans-still-face-voting-barriers/7657323.html, Sue Halpern, The Political
Attack on the Native American Vote, new yoRkeR (Nov. 4, 2022), https://www.newyorker.com/news/dispatch/the-political-
attack-on-the-native-american-vote; Paul Blumenthal, Native American Voting Rights Are Under Attack in Republican-Run
States, hUFFPoSt (Aug. 16, 2021), https://www.huffpost.com/entry/native-american-voting-rights_n_6116d0f7e4b07c14031
4ed7a.
729 See, e.g., Felicia Fonseca and Angeliki Kastanis, Native American Votes Helped Secure Biden’s Win in Arizona, aP (Nov. 19,
2020), https://apnews.com/native-american-votes-helped-secure-bidens-win-in-arizona-fa452fbd546fa00535679d78a
c40b890; Anna V. Smith, How Indigenous Voters Swung the 2020 Election, hiGh CoUntRy newS (Nov. 6, 2020), https://www.
hcn.org/articles/indigenous-affairs-how-indigenous-voters-swung-the-2020-election/.
730 See Blumenthal, supra note 728.
Racial discrimination,
especially by state legislatures,
against Native voters is often
a direct response to gains in
Native peoples’ political power..
110 Voting for Native Peoples: Barriers and Policy Solutions
threatened to prevent almost all eligible voters living on Tribal lands from registering to
vote or changing their voter registration by requiring voter registration applicants to provide
documentary proof of the location of their residence—something that most Native peoples
living on Tribal lands in Arizona do not have.
731
The state also passed a law shortening the time
period in which absentee or mail voters must correct errors, requiring voters who return an
unsigned ballot to cure it by 7:00 p.m. on election night.
732
In Montana, as a backlash to gains in Native political power in the 2000s, the state legislature
has repeatedly sought to suppress the Native vote through discriminatory legislation.
733
Because of the signicant distances many Native voters must travel to access in-person
voting locations and post ofces, many Native voters rely on relatives or other trusted
community members to deliver their mail ballot to them and return it to election ofcials.
734
With the knowledge that community ballot collection is a crucial tool for Native voters, the
state legislature has passed or introduced numerous iterations of bans or restrictions on the
practice, even after state courts have found that such bans violate the state constitution’s
protections for the fundamental right to vote.
735
The state legislature also enacted laws ending
same-day voter registration and imposing new voter identication requirements.
736
The North Dakota State Legislature similarly reacted to increased voter turnout amongst
Native Americans by enacting strict voter identication requirements, including a requirement
that voter identication include a residential address—something that most Tribal IDs in North
Dakota do not have.
737
Then in the 2021 redistricting cycle, the state legislature enacted a state
legislative map that illegally diluted Native voting strength and undermined representation in
the North Dakota State House and State Senate.
738
Hostility Toward Native Elected Ofcials
When Tribal members run for or are elected to nontribal ofce, they face extreme hostility
from the public and other candidates throughout their campaigns. Once elected, the hostility
often continues within the bodies on which they serve. This hostility compounds the barriers
Native candidates already face to running for ofce, including insufcient resources for
731 See id.; supra Part III, Lack of Standard Residential Addresses on Reservations; supra Part II, Disparate Impact of Voter
732 See Blumenthal, supra note 728.
733 See id.; montana adviSoRy Committee to the U.S. CommiSSion on Civil RiGhtS, votinG aCCeSS FoR native ameRiCanS in montana (Jun.
2021), [hereinafter “USCCR,
votinG aCCeSS FoR native ameRiCanS in montana”].
734 See id. at 12-13; supra Part III, Extreme Physical Distances to In-Person Voting and Voter Services.
735 See USCCR, votinG aCCeSS FoR native ameRiCanS in montana, supra note 733 at 13.
736 See Blumenthal, supra note 728.
737 See Hilleary, supra note 727; supra
738 See supra Part III, Vote Dilution through Discriminatory Districts and Electoral Systems; Hilleary, supra note 728.
PART III: Present Barriers to Political Participation 111
campaigns that have become “prohibitively expensive,” making them less likely to run for
ofce and leading to elected bodies that lack Native representation.
739
When Representative Peri Pourier, a citizen of the Oglala Lakota Nation and a member of the
South Dakota House of Representatives, rst ran for state ofce in 2018, she and another Tribal
member running for the State Senate seat in her district were subjected to vicious attacks by
the public and their opponents.
740
One radio station suggested that she and her Lakota running
mate were “plants” who could not possibly be from the Oglala Lakota Nation because of their
education and how they spoke.
741
Political operatives invaded her privacy by pulling records
on her and calling her husband on his personal phone number during her campaign.
742
State
ofcials threatened to open an investigation into her once she was elected.
743
Former South Dakota Senate Minority Leader Troy Heinert, who is Sicangu Lakota, had similar
experiences to Representative Pourier’s while serving in the South Dakota State Legislature.
744
According to Leader Heinert, there is a complete lack of knowledge in the Legislature about
issues affecting Native peoples.
745
Once Native peoples are elected to the legislature, white
legislators’ expectations of them are often very low and they get no second chances with their
colleagues.
746
In one particularly egregious interaction, another legislator once told Leader
Heinert that he “speak[s] very well for an Indian.”
747
Councilman Marvin Weatherwax, who is a citizen of the
Blackfeet Nation and now serves on the Tribal Council, was
a member of the Montana State House of Representatives
from 2019 through 2024.
748
Councilman Weatherwax
remarked that the 2023-24 session demonstrates the
building hostility toward Native legislators in Montana: “[It
was] the most outright racist session that I’ve ever had—
that I’ve ever gone through in my entire life.” Every bill
brought by Native legislators faced staunch opposition, and
often it felt like Councilman Weatherwax’s colleagues were
opposing the bills “just because they could.”
739 oBStaCleS at eveRy tURn, supra note 225 at 121; see also BRennan CenteR FoR JUStiCe, BReakinG down BaRRieRS: the FaCeS oF Small
donoR PUBliC FinanCinG (2016),
pdf.
740 See Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives
for the 27th District, in Rapid City, S.D. (Apr. 16, 2024).
741 See id.
742 See id.
743 See id.
744 See Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former Minority Leader of the South Dakota Senate
and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024).
745 See id.
746 See id.
747 See id.
748 See Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana
House of Representatives for the 15th District (May 1, 2024).
When Native candidates are
harassed or shunned when they
join governing bodies, they can be
deterred from running for ofce
in the future, which can have
downstream impacts on Native
voters’ willingness to participate
in the nontribal political process.
112 Voting for Native Peoples: Barriers and Policy Solutions
In 2019, Natalie Stites Means, a citizen of the Cheyenne River Sioux Tribe, ran a campaign for
mayor along with four other Lakota candidates for the city council.
749
During her campaign,
she was swatted, with police showing up to Stites Means’ home in full tactical gear, with one
even carrying a riot shield. Police, which included Pennington County sheriff deputies and a
U.S. Marshall, claimed they were acting on a tip from a neighbor and looking for Stites Means’
stepson who had an outstanding warrant for a felony offense, but whom she had not seen
in weeks. Stites Means recalls of the police call: “I was skeptical of their motivations. I was
skeptical of the tips. I was skeptical of the timing and I was skeptical of whether or not they
intended to create a media incident that would have been harmful to my campaign.”
750
Just
a few days later, police showed up to Stites Means’ home a second time, claiming they had
received a tip that a stolen iPhone had been traced to her home. After her unsuccessful run,
she and the other Native candidates were investigated and accused, without evidence, of
organizing double votes.
751
These types of attacks on Native legislators and candidates harm both the candidates
themselves and the broader population of Native voters. When Native candidates are
harassed or shunned when they join governing bodies, they can be deterred from running
for ofce in the future, which can have downstream impacts on Native voters’ willingness
to participate in the nontribal political process. Nationwide, Tribal leaders report that
their citizens are more likely to participate in federal, state, and local elections when the
candidates look like them and understand their communities.
752
Lack of Trust and Low Voter Education Leading to Depressed Engagement
Compounding, and in part driven by, the
substantial barriers that Native voters face is
signicant mistrust that many Native peoples have
of nontribal government ofcials, which can lead
to low levels of voter education and depressed
749 See Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024).
750 Frank Hopper, Former Rapid City Mayoral Candidate Recounts Possible Racial Proling Incidents, indian CoUntRy today (Jul. 9,
2019),.
751 See Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024).
752 See, e.g., Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024);
Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for
the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former
Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
The relationship between Tribal members
and nontribal governments, including local,
state, and federal governments, is built on a
foundation of abuse and abandonment that
continues to foster mistrust..
PART III: Present Barriers to Political Participation 113
In Native communities, past and
present discriminatory policies
often have intensifying impacts on
voter engagement.
civic engagement.
753
Councilmember and Treasurer of the Confederated Salish and Kootenai
Tribes James Steele, Jr. explains:
Indian people have been pushed aside so much out of the American process
that [they wonder], “Why do I vote anyway?”
754
Councilman Steele’s remarks summarize the sentiment felt by many Native peoples
throughout the United States. The relationship between Tribal members and nontribal
governments, including local, state, and federal governments, is built on a foundation of
abuse and abandonment that continues to foster mistrust.
755
While some government actors
have worked to build trust within Tribal communities, there is still signicant progress to be
made, especially as some federal, state, and local ofcials nationwide continue to support
or enact policies that are designed to, or have the effect of, making it harder for Native
peoples to participate in the nontribal political process.
756
In Native communities, past and present discriminatory
policies often have intensifying impacts on voter
engagement.
757
Most obviously, discrimination makes it
harder for voters to register or cast a ballot. But in the
long term, having to constantly ght voter suppression
and discrimination inicted by state and local ofcials
753 See, e.g., Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part I: Sheep Springs Chapter
House (Feb. 19, 2024); Roundtable on Voting Barriers and Election Administration on the Navajo Nation, Part III: Navajo
Nation Council (Feb. 19, 2024); Interview with Hopi Tribal Council Members, in Second Mesa, Ariz (Feb. 20, 2024);
Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024); Roundtable on
Voting Barriers and Election Administration for Tribal Citizens in Arizona (Feb. 22, 2024); Roundtable on Voting Barriers
and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024); Interview with Brittany Bryson,
Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller, Former President, Quinault Nation
Business Council, in Seabrook, Wash. (Mar. 11, 2024); Phone Interview with Anthony Aronica, Staff Attorney, Yakama Nation
Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for the 27th
District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud,
S.D. (Apr. 17, 2024); Interview with Scott Herman, President, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Interview
with Oliver “O.J.” Semans, Citizen of the Sicangu Oyate (Rosebud Sioux Tribe), Co-Founder and Co-Executive Director,
Four Directions, in Rosebud, S.D. (Apr. 17, 2024); Interview with Troy Heinert, Citizen of the Rosebud Sioux Tribe, Former
Minority Leader of the South Dakota Senate and Senator for District 26, in Rosebud, S.D. (Apr. 17, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024); Interview with Donita
Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson, S.D. (Apr. 17, 2024);
Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Montana (Apr. 29, 2024); Roundtable on
Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024);
Telephone Interview with Marvin Weatherwax, Jr., Member of the Blackfeet Tribal Council, Member of the Montana House
of Representatives for the 15th District (May 1, 2024); Telephone Interview with Anjali Bhasin, Civic Engagement Director,
Wisconsin Conservation Voters (May 13, 2024); Schroedel, et al., Political Trust, supra note 446; oBStaCleS at eveRy tURn,
supra note 225 at 43-44.
754 Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and Kootenai Tribes
(Apr. 30, 2024), Testimony of Hon. James Steele, Jr., Treasurer, Confederated Salish and Kootenai Tribes of the Flathead
Reservation.
755 See supra, Part I, A History of the Relationship between Native Nations and the United States and the Path to U.S.
Citizenship.
756 See supra, Part III, Discrimination and Neglect: From Outright Hostility to Failure to Offer Robust Options for Participation
by Tribal Members and Government-to-Government Consultation with Tribal Nations.
757 See Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024), Testimony
of April Ignacio, Citizen of the Tohono O’odham Nation, Co-Founder, Indivisible Tohono.
114 Voting for Native Peoples: Barriers and Policy Solutions
has the effect of discouraging Native peoples from participating in elections at all levels
of nontribal government.
758
Tribal leaders and other advocates of equal rights for Native
peoples explain that when Tribal members, who are already hesitant to participate in
nontribal elections, show up to the polling place and are turned away—for example, because
a poll worker does not recognize their Tribal ID as valid voter identication—it makes them
far less likely to attempt to vote in the future.
759
an unacceptable outcome in a nation that
is—or should be—dened by its identity as an inclusive democracy. Depleted turnout is
exacerbated by insufcient voter outreach and a lack of responsiveness by many elected
ofcials.
760
In addition to being discouraged by discriminatory practices, Tribal members commonly
face barriers to accessing robust voter and civic education.
761
Often times, information
regarding elections is distributed either online or via mail—two methods of communication
to which Native communities disproportionately lack access
762
—making it more difcult
for Native voters to learn about important issues, including candidates’ platforms, voter
qualications, election dates, and polling place changes, among others.
763
Moreover, there
are many young people in Native communities who do not
understand the intricacies of Tribal or nontribal governments,
and are therefore less likely to participate as adults.
764
To combat these barriers, it is incumbent on federal, state,
and local ofcials to work collaboratively with Tribal nations
to build trust and improve their relationships with Native
peoples. State and local ofcials should conduct robust
outreach and education programs on platforms that are
accessible to Native peoples, including those living on Tribal
758 See id.
759 See, e.g., Roundtable on Voting Barriers and Election Administration on the Tohono O’odham Nation (Feb. 21, 2024);
Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024);
Interview with Peri Pourier, Citizen of the Oglala Lakota Nation, Member of the South Dakota House of Representatives for
the 27th District, in Rapid City, S.D. (Apr. 16, 2024); Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in
Rosebud, S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated
Salish and Kootenai Tribes (Apr. 30, 2024).
760 See, e.g., Interview with Louis “Wayne” Boyd, Treasurer, Rosebud Sioux Tribe, in Rosebud, S.D. (Apr. 17, 2024); Roundtable
on Voting Barriers and Election Administration for Citizens of the Lower Brule Sioux Tribe (Apr. 17, 2024) (remarking that
761 See Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller,
Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024); Roundtable on Voting Barriers
and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024); Roundtable on Voting Barriers and
Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024); white hoUSe RePoRt,
supra note 289 at 20-21.
762 See supra Part III, Inadequate USPS Services and Vote by Mail; Part III, Transportation and Physical Infrastructure.
763 See supra Part III, Systemic Barriers Compounding the Direct Barriers; Roundtable on Voting Barriers and Election
Administration on the Navajo Nation, Part III: Navajo Nation Council (Feb. 19, 2024), Testimony of Hon. Curtis Yanito, Navajo
Nation Council.
764 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9, 2024);
Interview with Donita Loudner, Buffalo County Commissioner, Citizen of the Crow Creek Sioux Tribe, in Fort Thompson,
S.D. (Apr. 17, 2024); Roundtable on Voting Barriers and Election Administration for Citizens of the Confederated Salish and
Kootenai Tribes (Apr. 30, 2024).
To combat these barriers, it is
incumbent on federal, state,
and local ofcials to work
collaboratively with Tribal
nations to build trust and
improve their relationships
with Native peoples.
PART III: Present Barriers to Political Participation 115
lands.
765
For example, the Pima County, Arizona Recorder’s
Ofce has taken steps to build trust with and be more
accessible to voters from the Tohono O’odham Nation,
including unveiling a new trilingual Early Voting
Sticker, with “I voted” in English, “A:ñi ‘ant wodalt”
in O’odham, and “Yo Voté” in Spanish.
766
Future
legislation should also address civic education
for Native youth, including by providing funding
for Tribal nations to develop youth engagement
programs.
767
765 See Roundtable on Voting Barriers and Election Administration for Native Peoples in Urban South Dakota (Apr. 19, 2024)
(describing radio as an effective form of communication to Tribal members living on reservations).
766 Gabriella Cázares-Kelly, Pima County Recorder, unveils new ‘I Voted’ sticker, Pima Cnty. Recorder, available at https://www.
recorder.pima.gov/IVotedSticker. The public announcement noted that while “[m]ost Pima County voters will be unfamiliar
with the Tohono O’odham language . . .. It was included to acknowledge that Pima County’s boundaries sit within the
ancestral homelands of the Tohono O’odham Nation. Nearly 42% of Pima County’s land mass is designated as Tribal Lands
and includes the Tohono O’odham Nation and the Pascua Yaqui Tribe.” The announcement continued: “Tohono O’odham
throughout Pima County, with concentrations living in Ajo, Three Points, South Tucson and Tucson.” Id.
767 See Roundtable on Voting Barriers and Election Administration for Tribal Citizens in Oregon and Washington (Mar. 9,
2024); Interview with Brittany Bryson, Executive Assistant to the Council, Quinault Nation, and Pearl Capoeman-Baller,
Former President, Quinault Nation Business Council, in Seabrook, Wash. (Mar. 11, 2024); Roundtable on Voting Barriers and
Election Administration for Citizens of the Confederated Salish and Kootenai Tribes (Apr. 30, 2024).
Figure 6. “I Voted” sticker from Pima County, Arizona,
displaying the phrase in English, O’odham, and Spanish.
116 Voting for Native Peoples: Barriers and Policy Solutions
PART IV
A Way Forward
One hundred years ago, the federal government unilaterally conferred citizenship on Native
peoples after more than a century of exclusion and brutality. As this report outlines, the
full promise of citizenship and participation in the democratic process remains unfullled.
Many of the voting barriers Native peoples face today can be directly traced to the legacy of
abuses inicted by federal, state, and local government actors.
As detailed in this report, the barriers Native peoples face to full and equal participation
in the nontribal political process are substantial and unique. Native peoples living on Tribal
lands must often travel extreme physical distances—often without access to adequate
transportation—to cast a ballot.
768
These distances are intensied by unreliable or
nonexistent residential mail services and nonstandard addresses on Tribal lands, making
alternatives such as mail voting unavailable for many.
769
In places where government-
issued identication is required to register to vote or cast a ballot, Tribal citizens often face
considerable obstacles to providing sufcient identication, either because Tribal ID is not
recognized as a valid form of identication, the qualications on what valid ID must contain
effectively bar Tribal ID, or because poll workers simply refuse to accept it.
770
Moreover,
numerous jurisdictions fail to provide adequate language assistance, sometimes in violation
of federal law.
771
And even where Native voters successfully register to vote and cast a
ballot, their voting strength is often undermined by dilutive electoral district maps or at-
large districting schemes.
772
Structural conditions that are directly linked to the federal government’s historic removal,
assimilation, and termination policies with respect to Tribal nations compound the express
barriers and act to further undermine Native people’s ability to participate equally in the
nontribal political process.
773
On many reservations, there are alarmingly high rates of
poverty, overcrowded housing, and homelessness and a lack of access to adequate
infrastructure, including affordable and reliable broadband service that make it harder for
Tribal citizens to access the basic resources necessary to register to vote and make it to the
polling place.
774
Making matters worse, state and local ofcials, including poll workers, as
768 See supra Part III, Extreme Physical Distances to In-Person Voting and Voter Services.
769 See supra
770 See supra
771 See supra Part III, Inadequate Language Assistance.
772 See supra Part III, Vote Dilution and Racial Gerrymandering.
773 See supra Part I, A History of the Relationship between Native Nations and the United States and the Path to U.S.
Citizenship.
774 See supra Part III, Systemic Barriers Compounding the Direct Barriers.
PART IV: A Way Forward 117
well as non-Native fellow voters sometimes exhibit outright hostility toward Native voters,
further inhibiting their ability to safely vote.
775
Together, these factors lead to a deeply rooted
mistrust of federal, state, and local governments, making some Tribal citizens fearful of or
unwilling to participate in nontribal elections.
While federal law provides important protections, it has been insufcient to tackle the
widespread suppression of the Native vote. Native Americans have been particularly impacted
by the Supreme Court’s 2013 decision in Shelby County v. Holder, gutting enforcement of the
preclearance provisions under Section 5 of the Voting Rights Act.
776
Because of their history of
widespread discrimination against Native voters and other voters of color, numerous jurisdictions
with substantial Native populations, including Alaska, Arizona, Oglala Lakota County
777
and
Todd County in South Dakota, and Robeson County, North Carolina were subjected to the
preclearance provisions of the Voting Rights Act prior to Shelby County.
778
Those jurisdictions
were required to verify (or “preclear”) any changes to their voting policies or practices with
federal authorities before enforcement to ensure that those changes would not make it harder
for people of color to cast a meaningful ballot. In other words, Section 5 acted as a shield against
discriminatory laws and discriminatory policies before they could be implemented.
Without preclearance, Tribal nations and their citizens are left to bring afrmative litigation
challenging discriminatory laws only after they have already been enacted. Section 2 of the
VRA and the U.S. Constitution are powerful tools to protect the right to vote. Indeed, Native
Americans have won the overwhelming majority of voting rights cases they have brought.
779
But as the multitudes of hurdles and abuses discussed in this report illustrate, existing
legislation on its own is insufcient to undo decades of voter suppression efforts perpetrated
against Native peoples.
Enacting afrmative legislation to protect Native peoples’ right to vote in federal elections is
not just the right thing to do: The federal government has a treaty-based responsibility to Tribal
nations and their citizens to ensure the full realization of the right to vote in nontribal elections
and free, fair, and equitable access to the ballot—to say nothing of the moral responsibility our
775 See supra Part III, Discrimination and Neglect: From Outright Hostility to Failure to Offer Robust Options for Participation
by Tribal Members and Government-to-Government Consultation with Tribal Nations.
776 See Shelby County v. Holder, 570 U.S. 529 (2013) (ruling Section 4(b) of the VRA unconstitutional); 52 U.S.C. §§ 10303,
10304. For an explainer on how Section 5 of the VRA operated to protect the right of voters of color to equal participation
in the political process, see About Section 5 of the Voting Rights Act, U.S. Dep’t of Justice, available at https://www.
justice.gov/crt/about-section-5-voting-rights-act (updated Nov. 17, 2023) (“Section 5 was enacted to freeze changes in
election practices or procedures in covered jurisdictions until the new procedures have been determined, either after
administrative review by the Attorney General, or after a lawsuit before the United States District Court for the District
of Columbia, to have neither discriminatory purpose or effect. Section 5 was designed to ensure that voting changes
in covered jurisdictions could not be implemented used until a favorable determination has been obtained.”); StRonGeR
toGetheR RediStRiCtinG, supra note 417 at 6-8.
777 Oglala Lakota County was known as Shannon County until May 2015 (including the time period during which the County
was covered under the Voting Rights Act’s preclearance provisions) after more than 80 percent of the County’s residents
voted to change the name. See David Montgomery, Shannon County No More: Voters Approve Name Change (Nov. 5, 2014),
https://www.argusleader.com/story/davidmontgomery/2014/11/05/shannon-county-name-change/18534269/.
778 See Civil Rights Division, U.S. Dep’t of Justice, Jurisdictions Previously Covered by Section 5, https://www.justice.gov/crt/
jurisdictions-previously-covered-section-5.
779 See mCCool, et al., native vote, supra note 73 at 48-68 (listing cases); oBStaCleS at eveRy tURn, supra note 225 at 19-23
(listing cases); oBStaCleS 2021 CaSe UPdateS, supra note 225.
118 Voting for Native Peoples: Barriers and Policy Solutions
government owes to every American. This also includes fully enforcing existing protections
such as those provided by the NVRA and the Help America Vote Act of 2002 (HAVA), as well
as the language access and assistance rights afforded under Sections 203
780
and 208
781
of the VRA, and the nationwide prohibitions on voting practices and procedures that are
discriminatory or dilute the voting power of Native communities found in Section 2
782
of the
VRA. Moreover, Congress has sweeping authority over elections to undergird such reform,
particularly through the Elections Clause and the enforcement clauses of the Fourteenth and
Fifteenth Amendments.
783
Federal legislation to address these barriers include the bipartisan Frank Harrison, Elizabeth
Peratrovich, and Miguel Trujillo Native American Voting Rights Act, the Freedom to Vote Act, and
the John R. Lewis Voting Rights Advancement Act.
Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native
American Voting Rights Act
The Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native American Voting
Rights Act (NAVRA)
784
would address many of the barriers discussed in this report by
establishing baseline, consistent standards for voting throughout Indian Country, ensuring
that Native Americans no longer bear the burden of lengthy, costly litigation to defend and
enforce their right to vote. Key provisions of NAVRA include:
● Establishing a grant program administered by the U.S. Election Assistance Commission
to establish state-level Native American Voting Rights Task Forces for the purposes of
addressing the barriers to voting in Indian Country.
● Ensuring federal or federally-funded facilities providing services to Tribal nations offer
voter registration services to Tribal members.
● Improving access to voter registration, polling places, and drop boxes on Tribal lands,
including through meaningful Tribal consultation.
● Streamlining the process for adding polling locations on Tribal lands.
● Providing uniformity for voting on Tribal lands.
● Requiring the acceptance of Tribally - or federally-issued ID if an ID is required to vote
in federal elections.
● Ensuring culturally appropriate and effective language assistance, such as requiring
language access to be provided orally even if written translation is not culturally
permitted.
780 52 U.S.C. § 10503.
781 52 U.S.C. § 10508.
782 52 U.S.C. § 10301.
783 U.S. ConSt. art. I, § 4; U.S. ConSt. amend. XIV, § 5; U.S. ConSt. amend. XV, § 2; see also Nicholas O. Stephanopoulos, The Sweep
of Electoral Power, 36 ConSt. CommentaRy 1 (2021).
784 H.R. 5008 - Frank Harrison, Elizabeth Peratrovich, and Miguel Trujillo Native American Voting Rights Act of 2021, Rep.
Davids (D-KS), 117
th
Cong. (2021), https://www.congress.gov/bill/117th-congress/house-bill/5008/text?s=1&r=11.
PART IV: A Way Forward 119
● Allowing Tribal nations to designate buildings to be used as a person’s address for the
purposes of registering to vote and picking up and dropping off a ballot.
● Requiring states to provide a reason when rejecting a provisional ballot.
● Allowing extended family, caregivers, Tribal assistance providers, and household
members to deliver voter registration, absentee ballots, absentee applications, or a
sealed ballot of a voter residing on Tribal lands at a designated location, so long as the
person is not receiving any compensation based on the number of ballots returned.
● Requiring prior consent from either the affected Tribe or the U.S. Attorney General,
or an order from the D.C. federal district court before a state can reduce the voter
accessibility outlined in these provisions.
● Allowing a Tribal nation to make a request to the U.S. Attorney General for federal
election observers and requiring the U.S. Department of Justice to consult annually
with Tribal nations on issues related to voting.
NAVRA specically addresses the distinct and most signicant barriers faced by Native
voters, improving access nationwide.
Freedom to Vote Act
The Freedom to Vote Act (FTVA)
785
improves access to the ballot for all Americans, setting
baseline standards of access nationwide. The FTVA ensures every American, including those
living on Tribal lands, has access to a minimum number of days of early voting and ballot drop
boxes. The bill would require no-excuse, mail-in voting nationwide, and improved delivery of
election mail. The FTVA protects access for Native voters—and all voters—by setting uniform
standards of which forms of ID states must accept, including Tribal ID, for states that do
require ID to vote, and strengthening voter list maintenance standards to prevent the removal
of eligible voters. Furthermore, the FTVA ensures every citizen can exercise their fundamental
right to vote in federal elections by restoring the franchise for people who have served their
time for felony convictions and are no longer incarcerated.
Additionally, the FTVA improves access to voter registration, requiring nationwide
implementation of automatic voter registration, online voter registration, and same day voter
registration. Same day voter registration, in particular, would signicantly improve access for
Native voters. If a voter does not interact with a state or federal agency, or lacks access to
reliable broadband, they may not be captured by automatic or online registration. However,
same day voter registration allows individuals to go to the polls during early voting or on
election day, register, and vote all in one trip.
The FTVA also ends partisan gerrymandering and establishes specic criteria for
congressional redistricting to ensure nonpartisan redistricting.
785 H.R. 11 - Freedom to Vote Act, 118th Cong. (2023), https://www.congress.gov/bill/118th-congress/house-bill/11/
text?s=1&r=8.
120 Voting for Native Peoples: Barriers and Policy Solutions
John R. Lewis Voting Rights Advancement Act
The John R. Lewis Voting Rights Advancement Act (VRAA),
786
restores important provisions
of the VRA that have been severely curtailed by the U.S. Supreme Court and other federal
courts over the past two decades.
787
First, it creates a new geographic coverage formula
for determining which states and localities must preclear election changes with the U.S.
Department of Justice or a federal district court in Washington, D.C., tailoring the regime to
present-day attacks on the right to vote. The VRAA would also implement a “known practice
coverage” preclearance regime that requires states and localities that meet certain criteria
to preclear seven covered voting practices prior to any implementation. Through evidence
gathered by the Committee on House Administration and others, Congress recognizes
the discriminatory impact these seven practices can have on voters. The covered practices
include: (1) changes to the method of election; (2) changes to jurisdictional boundaries; (3)
changes through redistricting; (4) changes in documentation or qualications to vote (such
as voter identication or documentary proof of citizenship); (5) changes to multilingual voting
materials; (6) changes that reduce, consolidate, or relocate voting locations, or reduce voting
opportunities (including early, absentee, and election day voting locations and Sunday early
voting opportunities); and (7) new voter list maintenance processes.
The VRAA also strengthens Section 2 of the Voting Rights Act—a key pillar that allows
plaintiffs, including Tribal nations and individual voters, to bring claims for vote denial and
vote dilution. In Brnovich v. Democratic National Committee, the Court set out to rewrite the
law for vote denial claims, laying out novel factors never before considered by Congress or
federal courts. The decision, which was a thinly-veiled attempt to erode Section 2, ew in
the face of precedent and the Congressional record, ignoring protections explicitly written
into the statute in 1982.
788
The VRAA would correct the Supreme Court’s error in Brnovich,
reinvigorating a critical tool used by Tribal nations and Native voters to protect and enforce
their right to vote.
Further Action
Rather than embracing and encouraging increased voter participation, states have instead
enacted laws that roll back access and aim to erect roadblocks to the ballot box. In 2023, at
least 14 states enacted 17 restrictive voting laws, and in only six months between January 1,
2024 and the publication of this report, at least six states enacted another seven restrictive
voting laws.
789
Individually, NAVRA, the FTVA , and the VRAA will protect and expand access
786 H.R. 14 - John R. Lewis Voting Rights Advancement Act of 2023, Rep. Terri Sewell (D-AL), 118
th
Cong. (2023), https://www.
congress.gov/bill/118th-congress/house-bill/14/text?s=3&r=5.
787 See Brnovich v. Democratic National Committee, 594 U.S. __, 141 S.Ct. 2321 (2021); Shelby County v. Holder, 570 U.S. 529
(2013); Arkansas State Conf. NAACP v. Arkansas Bd. of Apportionment, 86 F.4th 1204 (8th Cir. 2023).
788 See Brnovich, 141 S.Ct.
789 See Brennan Center for Justice, 2023 in Review (Jan. 18, 2024), https://www.brennancenter.org/our-work/research-
reports/voting-laws-roundup-2023-review; Brennan Center for Justice, Voting Laws Roundup May 2024 (May 17, 2024),
https://www.brennancenter.org/our-work/research-reports/voting-laws-roundup-may-2024.
PART IV: A Way Forward 121
to the franchise for all Native people. Combined, they take signicant steps to safeguard and
expand the rights of voters and ensure equal and equitable access to the ballot.
While Congress must enact these bills, there are steps states and localities can take now
to improve access to the ballot for Native people. States and local entities must conduct
meaningful, fulsome consultation with Tribal leaders well in advance of elections. Tribal
leaders must be consulted on issues such as where the best placement of polling places
and satellite ofces to ensure Tribal members can meaningfully access them. The USPS and
local postmasters, along with states and localities, must invest resources into improving mail
service for people living on Tribal lands and consult with Tribal leaders well in advance of an
election to address any postal service issues for mail-in ballots.
State and local ofcials should conduct substantive trainings on election laws and procedures
and cultural sensitivities for election workers, poll workers, and volunteers to ensure no
eligible voter is turned away from the polls, all voters receive the assistance they need, and to
prevent instances of voter intimidation.
The federal government also has a critical role to play. The Department of the Interior and
other agencies that provide services on Tribal lands must work with Tribal nations and state
governments to fully implement President Biden’s Executive Order Promoting Access to
Voting
790
and improve voter registration opportunities and voter education programs, in
coordination with Tribal governments. The Department of the Interior should also work with
other federal agencies and Tribal governments to improve data collection on Native American
voters’ registration and participation rates.
These steps, and more, would go a long way to improving access to the ballot for Native
peoples living on and off Tribal lands.
790 Exec. Order No. 14019, 86 Fed. Reg. 13623 (Mar. 7, 2021).
122 Voting for Native Peoples: Barriers and Policy Solutions
PART V
Conclusion
The evidence compiled in this report illustrates that discrimination in voting is alive and well,
and has a signicant impact on Native people. We are at an inection point in protecting our
democracy and ensuring it is accessible for every American. The full realization of citizenship
promised 100 years ago remains unfullled.
Congress must exercise its constitutional authority to protect the fundamental right to vote for
every American, and for the federal government to fulll its treaty-based responsibilities to
Tribal nations and Native peoples. It is unacceptable that 100 years after the Indian Citizenship
Act, the promise of full democratic participation remains elusive and purposefully subverted
at many turns.
As Chief Justice Earl Warren wrote in 1964, the “right to vote freely for the candidate of one’s
choice is of the essence of a democratic society, and any restrictions on that right strike at the
heart of the representative government.”
791
Voting and equal, equitable access to the ballot
are cornerstones of creating a true democracy: “No right is more precious in a free country
than that of having a voice in the election of those who make the laws under which, as good
citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is
undermined.”
792
To truly fulll the United States’ treaty responsibilities to Tribal nations and Native peoples,
Congress must ensure equal access to representation for every Native person.
791 Reynolds v. Sims, 377 U.S. 533, 555 (1964).
792 Wesberry v. Sanders, 376 U.S. 1, 17 (1964).
123
ACKNOWLEDGMENTS
Ranking Member Joesph D. Morelle of the Committee on House Administration would like
to thank the Tribal leaders, Native advocates, and other researchers who provided their
expertise and testimony, without which this report would not be possible.
Ranking Member Morelle would like to thank the Tribal leaders who provided invaluable
testimony for this report: Councilman Marvin Weatherwax, Jr. of the Blackfeet Nation, Tribal
Council of the Confederated Salish and Kootenai Tribes, especially Chairman Michael Dolson,
Vice Chair Tom McDonald, Treasurer James Steele Jr., Councilwoman Danielle Matt, and
Councilwoman Jennifer Finley; Vice Chairwoman Karen Condon of the Confederated Tribes
of the Colville Reservation; Councilmember Jon George of the Confederated Tribes of Grand
Ronde; Governor Stephen Roe Lewis of the Gila River Indian Community; Members of the Hopi
Tribal Council; Councilwoman Alisa Herodes of the Little Shell Chippewa Tribe; the Lower
Brule Tribal Council, including Chairman Clyde Estes, Vice-Chairman Cody Russell, Chaplain
Jewel Jandreau, and Councilmember Lewis Grassrope; the Navajo Nation Council, including
Speaker Crystalyne Curley, Delegate Amber Kanazbah Crotty, Delegate Eugenia Charles-
Newton, Delegate Curtis Yanito, Delegate Cherilyn Yazzie, and Delegate Shawna Ann Claw;
President Scott Herman and Treasurer Louis “Wayne” Boyd of the Rosebud Sioux Tribe;
President Martin Harvier and Councilmember Mikah Carlos of the Salt River Pima Maricopa
Indian Community; Chairman Leonard Forsman of the Suquamish Tribe; Chairman Verlon M.
Jose and Vice Chairwoman Carla L. Johnson of the Tohono O’odham Nation; Councilmember
Melvin R. Sheldon of the Tulalip Tribes; and Councilmember Jeremy Takala of the Yakama
Nation.
Ranking Member Morelle further thanks the state and local elected ofcials who contributed
testimony: Gabriella Cázares-Kelly (Tohono O’odham), Pima County Arizona Recorder, Troy
Heinert (Sicangu Oyate), Former Minority Leader of the South Dakota Senate and Senator
for District 26, Donita Loudner (Crow Creek Sioux Tribe), Buffalo County Commissioner, Rina
Fontana Moore, former Clerk and Recorder for Cascade County, Montana, and Peri Pourier
(Oglala Lakota Nation), Member of the South Dakota House of Representatives for the 27th
District.
Ranking Member Morelle is also grateful to the Tribal employees as well as the researchers
and advocates who contributed to this report: Anthony Aronica (Yakama), Staff Attorney,
Yakama Nation Ofce of Legal Counsel, Dew Bad Warrior Ganje (Cheyenne River Sioux Tribe),
Anjali Bhasin, Civic Engagement Director, Wisconsin Conservation Voters, Candi Brings
Plenty (Oglala Lakota), President, COUP Council, Pearl Caopeman-Baller (Quinault), former
President of the Quinault Nation, Katherine Belzowski, Navajo Nation Department of Justice,
Gary Bohnee (Gila River Indian Community), Ofce of Legislative and Congressional Affairs
for the Salt River Pima Maricopa Indian Community, Brittany Bryson (Quinault), Executive
Assistant to the Quinault Nation Council, Maria Dadgar (Piscataway Tribe of Accokeek,
Maryland), Executive Director, Inter Tribal Council of Arizona, Jacqueline De León (Isleta
Pueblo), Native American Rights Fund, Torey Dolan (Choctaw Nation of Oklahoma), University
124 Voting for Native Peoples: Barriers and Policy Solutions
of Wisconsin-Madison, Nicole Donaghy (Hunkpapa Lakota from the Standing Rock Sioux
Nation, Mandan, Hidatsa, Arikara Nation, and Turtle Mountain Band of Chippewa), Executive
Director, North Dakota Native Vote, Patty Ferguson Bohnee (Pointe-au-Chien Indian Tribe),
Arizona State University, Matthew L.M. Fletcher (Grand Traverse Band of Ottawa and
Chippewa Indians), University of Michigan, Bret Healy, Four Directions, Ronnie Jo Horse
(Oglala Lakota and Northern Cheyenne), Executive Director, Western Native Voice, Willow
Howard (Yakama), Governmental Affairs Liaison, Yakama Nation, Jae Hugs (Crow Nation),
April Ignacio (Tohono O’odham), Co-Founder, Indivisible Tohono, Sonlatsa Jim Martin (Navajo),
Navajo Nation, Julie Johnson (Lummi), Native American Caucus, Washington State Democrats,
ATNI Native Vote Committee, Alyssa LaTray (Blackfeet and Little Shell), Western Native
Voice Dr. Eric Leshinske, President, Scottsdale Community College, Alfred Lomaquahu
(Hopi), Registrar, Hopi Tribe, Daniel McCool, University of Utah, Allison Neswood (Navajo),
Native American Rights Fund, Daniel Poncha (Little Shell), Jean Roach (Mnicoujou Lakota
from the Cheyenne River Sioux Tribe), Treasurer, COUP Council, Jean Schroedel, Claremont
Graduate University, OJ Semans (Sicangu Oyate), Co-Founder and Co-Executive Director,
Four Directions, Howard Shanker, Attorney General, Tohono O’odham Nation, Brian Smith
(Muscogee Nation of Oklahoma), Co-Director, Tribal Democracy Project, Natalie Stites Means
(Cheyenne River Lakota and Crow Creek Dakota), Executive Director, COUP Council, Charla
Takes Enemy (Crow Nation) Patricia “Patsy” Whitefoot (Yakama).
Ranking Member Morelle extends further thanks to the numerous civil rights organizations,
democracy and voting advocates and organizations, and researchers whose work and
reports contributed to the body of work on access to the ballot for Native peoples and is cited
throughout this report.
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126 Voting for Native Peoples: Barriers and Policy Solutions
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