October 24, 2022 HUMAN RIGHTS

The Battle to Enfranchise Indigenous Voters

by Robert O. Saunooke

There is no question that the right to vote is considered a fundamental part of the American governmental system. Participation in choosing a voice to represent you in the legislative and governmental arena was inextricably bound to the foundations and creation of what would become the U.S. experiment of democracy. However, from the very beginning of this nation, the right to choose leadership reflective of the people they would represent often excluded entire groups, including women, minorities, and the entire Native American community.

Indigenous Americans have faced and fought the longest battles for representation in local, state, and federal governments. These battles have been severalfold to ensure that governments are reflective of Indigenous communities and inclusive of Native Americans in the election process. Early efforts to address groups previously excluded from voting would specifically fail to include the Native American people and communities. Many politicians who were willing to accept sweeping changes to include African Americans, women, Asian Americans, and other minority communities often bristled at the thought of Native Americans participating in governmental elections.

I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me.

Senator Jacob Howard at the passage of the Fourteenth Amendment

Congressional Globe, May 30, 1866

Indigenous Americans have faced and fought the longest battles for representation in local, state, and federal governments.

Indigenous Americans have faced and fought the longest battles for representation in local, state, and federal governments.

THOMAS NAST ON THE LIBRARY OF CONGRESS, CC0 1.0 UNIVERSAL

Native Americans Were the Last Group to Gain the Right to Vote

In 1924, the passage of the Indian Citizenship Act provided the first glimmer of hope that the Native American community would be able to have a voice in electing leaders that would be reflective of their communities as well as give them a voice in dealing with Native American issues. One hundred years later, the first people of this country continue to struggle for representation and a voice at the voting table. Discrimination, disparate treatment, and active efforts to disenfranchise Native Americans from voting continue to plague their communities, and the glimmer of hope lit in 1924 has failed to burn any brighter today. In fact, even with the clear language of the act, it took until 1962 when New Mexico became the last state to acknowledge the right of Native Americans to participate in state and federal elections for every state to recognize and permit Native Americans to participate in state and national elections. Still, Native Americans were not allowed to register, their Tribal identifications were ignored, and they faced poll taxes, fraud, intimidation, and even complicated literacy tests that were not applied or required of any other groups.

In 1965 with the passage of the Voting Rights Act (VRA), federal law specifically identified Native Americans as a “language minority group” requiring that states could not discriminate in the election and voting process based on race or color and required that states produce and distribute registration and election information in the language of Tribes that were within the jurisdiction or election district of the state.

Even with these changes, efforts to disenfranchise and exclude or discourage the Native vote continue. The rural nature of most reservations requires these voters to travel long distances to vote, as states continue to refuse to provide access to registration and polling locations in proximity to reservations. Similarly, language barriers have not been remediated even though the VRA requires that states provide assistance in interpreting registration, voting ballots, and related materials into Tribal languages. In states like Arizona, New Mexico, and Alaska, which account for almost 87 percent of the Native American population, there is little to no language assistance.

Recently, the Native communities have faced issues associated with registration. Many states have refused to accept Tribal Identification cards as proof of identity. Additionally, most reservations are in rural locations without sanctioned street addresses. Non-traditional addresses are the norm for Native communities. States have not accepted these rural route addresses to permit Native voters to register. Similarly, there are a number of states that have prevented Native Americans from voting due to non-traditional mailing addresses, many of which are temporary or transient housing due to the lack of permanent residences available on reservations.

These Native voters face further issues of being purged from election rolls and having to re-register all over again due to their non-traditional mailing addresses. In Apache County, Arizona, the county purged 500 Navajo voters because the recorder claimed their addresses were “too obscure” and could not be assigned to a precinct. The county recorder would not accept voter registrations with post office boxes or home location map drawings.

Redistricting Impacts on Native American Voters

The conclusion of the 2020 election cycle brought with it a new problem for Native voters—redistricting. There has been a concerted effort by political parties to control voting districts and regroup congressional areas to create representation reflective of the community they serve. It also accounts for population changes based on the census to determine representatives for the House of Representatives, state legislatures, city council, and other local offices. This creates special problems for Native voters due to the inaccurate calculation of reservation populations coupled with the location of Tribal lands.

Tribal lands or reservations are located within state boundaries of invisible borders. While defined on maps, they often straddle numerous counties and multiple states. Often, the population of the Tribe is spread out in various rural areas that may border non-Indian communities or may be located far from a non-Indian community. When it comes to redistricting, the actual drawing or determination of the boundaries of the congressional or local district, the Tribal members and reservation are not their own district. Native communities represent a very small percentage of the voting population in most districts and, therefore, struggle for meaningful elected representatives.

For example, the Colville reservation in Washington state, which has natural borders of the Columbia and the Okanogan Rivers to the east, south, and west of the reservation, has had its community broken up into multiple legislative and congressional districts. This has made it difficult for any Native candidates to get the support of the entirety of their Native community.

The Colville reservation was one of six Washington reservations split up during recent redistricting changes. There is already a distrust between Native communities and the government. Issues of splitting reservations in redistricting, identification requirements in states that require in-person voting as a primary means of electing candidates, and lack of rural polling places only create lower voter turnout and apathy leading to less Native participation in the election process.

The lack of elected officials who reflect Native communities and voices adds to the lack of funding for much-needed infrastructure, education, and other projects. This was seen during the recent COVID-19 pandemic where Tribes could not get funds for personal protective equipment for doctors and nurses despite the high rate of cases present in Native communities.

Native American Rights Fund (NARF) staff attorney Matthew Campbell stated, “Historically, we’ve seen a fair amount of gerrymandering within Indian Country.” In its recent report Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters, NARF determined that redistricting was just one of the ways Indigenous voters have been disenfranchised. Redistricting and splitting up Native communities dilutes their voting strength and uses at-large districts in elections. In Washington, the redistricting commission revised some maps after its initial proposals were prompted by pushback from tribes and voting-rights advocates. Groups like Better Together submitted map proposals for Oregon and Washington that better reflected Tribal communities and Native voters.

There is no question that the recent census resulted in the largest number of Native Americans counted in the past 50 years. The resulting issue of redistricting of voting communities needs to acknowledge the presence and voice of the Native American population to make sure that they are included in choosing elected officials who reflect their communities and voices. Redistricting is only the latest in a long history of Native voting disenfranchisement and, if not properly monitored or addressed, will result in another 10 years before it can be addressed again.

Prioritizing the inclusion of the Native American community in the election process through outreach programs, legislation mandating funding, and Native American participation in all aspects of state and local government will not solve all problems, but it will take the initial steps to include the first Americans in this most important process. 

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Robert O. Saunooke

2019-20 President, National Native American Bar Association

Robert O. Saunooke is a citizen of the Eastern Band of Cherokee Indians and has practiced exclusively in the area of Native American law for more than 30 years. He is a past president of the National Native American Bar Association and is an adjunct professor of federal Indian law at Emory Law School in Atlanta, Georgia.