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Ed 'Buster' Moore, a plaintiff in the voting-rights lawsuit Wandering Medicine v. McCulloch, stands before the southern portion of Fort Belknap, near where he lives. (Photo by Terri Long Fox)

The Missing Native Vote

Nearly 50 years after the Voting Rights Act, American Indians still don’t have equal access to the ballot box.

BY Stephanie Woodard

‘Native people have a very hard time in Montana,’ says Four Directions co-director OJ Semans. ‘Keeping polling places in white communities is a very efficient way to disenfranchise us.’

It was mid-April, and Montana was gearing up for this year’s primary election. Voting would get underway in Big Sky Country on May 5, with a month of advance voting by absentee ballot—by mail or by delivering a ballot to the county courthouse—leading up to Primary Day on June 3. If people hadn’t registered, they could head to the courthouse to sign up.

But for Ed “Buster” Moore, who lives on the Fort Belknap Indian Reservation in north-central Montana, it wasn’t so simple. To cast a ballot during the absentee-voting period, he would have to make the 126-mile round trip to the Blaine County Courthouse in Chinook. That’s about $21 worth of gas, not to mention the income that Moore, an artisan, would lose by taking a half day off from his work making hand drums, rawhide bags and other items that he sells in the community and on the Internet. A diabetic, he’d have to buy lunch on the road. Those expenses add up.

If he had to vote today? “I couldn’t afford it,” Moore says. For tribal members who are unemployed or receiving assistance, voting would be impossible, he says. “It’s sheer economics.”

Moore’s situation isn’t unusual. Though measures that curtail minorities’ voting rights, such as stringent ID requirements and limited voting time, have made headlines in recent years, the challenges Native Americans face when they go to the polls have never been on the national radar. In the second decade of the 21st century, nearly 50 years after the Voting Rights Act of 1965 outlawed discriminatory voting practices, American Indians are still working to obtain equal voting rights.

Montanans can register to vote during the month preceding elections—but there’s a catch. The courthouses where they register are in largely white-inhabited county seats, not on reservations. In the nation’s fourth-largest state—at 147,040 square miles, bigger than Germany—that can mean daylong trips for people like Moore from isolated reservations.

And that’s just registration. The month-long voting period is supposed to make casting a ballot easier, and hundreds of thousands of Montanans take advantage of it. In 2012, 42.5 percent of voters either mailed in an absentee ballot or voted in person during the month leading up to Primary Day, according to state election results. In-person voting, however, is only allowed at those same county courthouses, a long way from reservations. And voting by mail poses its own difficulties, thanks to unreliable postal service on reservations. For Native people, casting a ballot in Montana can be a multi-day event.

The distance between reservations and county courthouses isn’t just an inconvenience; for many Natives, that distance can mean the difference between voting and not voting. Johnathan Walker, student body president of Fort Belknap’s Aaniiih Nakoda College and an avid participant in get-out-the-vote efforts, recalls one 85-year-old woman who missed her opportunity to vote because Walker was unable to secure transportation for her to the courthouse.

To measure the impact of these hurdles, a 2014 report by Jean Schroedel, a professor of political science at Claremont Graduate University, examined voting methods used in the 2012 general election in three Montana counties that overlap reservations. In Blaine County, she found, 46 percent of voters in white precincts cast absentee ballots. Meanwhile, just 18 percent did so in Indian precincts. The proportions were similar elsewhere in the state.

None of this adds up to equal rights, according to former Fort Belknap tribal president and cultural leader William “Snuffy” Main. “Indians have one day to vote, assuming they’ve registered ahead of time, and everyone else has a month,” says Main, a board member of the Native voting-rights nonprofit Four Directions. As Mark Azure, Fort Belknap’s current tribal president, puts it, “I would love to walk out the door, cross the street, cast my vote and get back to my life—and not have to take half a day and go off the reservation to a town where I know that … I’m not really welcome.”

He may soon be able to do just that, thanks to a federal lawsuit led by Mark Wandering Medicine, a Northern Cheyenne spiritual leader and Vietnam veteran who would have to travel 180 miles round trip to get to a county courthouse. The case, Wandering Medicine v. McCulloch, pits plaintiffs from three Montana reservations—Fort Belknap, Northern Cheyenne and Crow—against county elections officials and the secretary of state and top elections officer, Linda McCulloch. The plaintiffs demand equal access on their reservations to the absentee voting and late registration currently offered only in county courthouses.

At press time, in late May, the opponents in the suit were set to appear in a federal courtroom near the site of the Battle of Little Bighorn within days of the battle’s 138th late-June anniversary. The location and timing are apt, as the lawsuit is shaping up to be a sequel to that famous encounter, also known as Custer’s Last Stand. The plaintiffs include descendants of the legendary Plains tribes that won the 1876 engagement—the Sioux, Cheyenne, Arapaho, Blackfeet and Gros Ventres. With support from regional and national organizations, the cause has gone well beyond Montana. “New Native allies from Alaska to Arizona have joined our fight,” says Four Directions co-director OJ Semans, a Rosebud Sioux from South Dakota. Even Lt. Colonel Custer has a proxy for Little Bighorn II: Geraldine Custer, an election official named in the lawsuit, is married to a Custer descendant.

This time, however, the Native people have the United States on their side: Wandering Medicine has attracted the interest of the Department of Justice, which views the suit as an important test of the Voting Rights Act of 1965 and has taken it up as part of its efforts to ensure equal rights nationwide. (For example, the federal government is also challenging Texas’ 2011 voter-ID law and North Carolina’s increased voter-ID requirements and shortened voting period.) The DOJ has filed an amicus brief and two Statements of Interest on behalf of the Wandering Medicine plaintiffs, and sent an attorney to argue in a 2013 hearing.

One of the defendants’ central claims in briefs and in court has been that because Montana Natives have participated to some degree in the electoral process and have elected some representatives of their choice, they have all the rights the law guarantees. But the DOJ disputes this, arguing that the Voting Rights Act does not require minority voters to prove they lack all electoral opportunity. If the state and county defendants prevail, warns the DOJ, jurisdictions would have “a green light to discriminate” and could, for example, keep polling places open for 12 hours in white precincts but only three hours elsewhere. “That simply cannot be the law,” the DOJ wrote in its April Statement of Interest.

On the other hand, a ruling for the Native plaintiffs would mean equality for Native voters—and possibly for other isolated minority communities, such as Latinos in the Southwest. “Wandering Medicine has the potential to transform minority voting access,” says Semans.

Leaping voting hurdles

Fort Belknap sits north of the Little Rocky Mountains, where pines and aspens climb the mile-high, 15-mile-wide range and an old wagon road winds along the base of the craggy slopes. Buffalo and horses graze in hilly grasslands; other areas are given over to cattle and hay.

The reservation is about the size of Rhode Island and is home to two tribes: the Gros Ventre (pronounced grow-vont), who call themselves the A’aninin, and the Assiniboine, also known as the Nakoda. About half of the 7,000 enrolled tribal members live on the reservation. Most live in modest, ranch-style homes, some clustered together, others scattered across the 1,200 square miles of rolling plains. Those who have found employment mostly work for the tribal government, the Indian Health Service, the Bureau of Indian Affairs and Fort Belknap’s Aaniiih Nakoda College.

To determine how distance and poverty affect Native voting access, the DOJ asked University of Wyoming geography professor Gerald R. Webster to examine the three Montana reservations involved in Wandering Medicine. Webster found that Indians on those reservations traveled two to three times farther than whites to get to a county courthouse. Meanwhile, depending on the reservation, Indians were two to three times more likely not to have a vehicle for the trip. They were also less likely to have money to fill the gas tank: In Blaine County, which overlaps Fort Belknap, Webster found that the Native poverty rate was 2.5 times that of whites; in Rosebud County, which overlaps the Northern Cheyenne reservation, Natives were four times more likely than whites to live below the poverty line.

Fear also keeps Natives away from white towns and their courthouses, establishing an apartheid condition in American Indian communities. “They are today the poorest, most isolated and in some quarters, the most racially castigated population in the country,” writes sociologist Garth Massey, a University of Wyoming emeritus professor who submitted an expert report to the court on behalf of the plaintiffs.

Natives have plenty of reason to fear venturing outside their communities. In 2000 and 2007, the U.S. Civil Rights Commission (USCRC) issued reports on the hate crimes, murders and fatal police shootings that Natives face in towns near reservations in states such as Montana, South Dakota and New Mexico.

South Dakota, home to Lakota and Dakota tribes, has scores of gruesome murders, many unsolved, involving Indian victims. The USCRC and the FBI have decades of files describing murdered Indians found abandoned by roadsides, floating in rivers and, in one notorious case, stuffed in a garbage can. “In recent years, things have improved in South Dakota,” says Semans, a former criminal investigator for tribes, the Bureau of Indian Affairs, and other federal agencies. “Indians may still be murdered with impunity in some cases, but the police no longer feel free to simply open fire on us.” Not so in Montana, where Semans has encountered stories he finds credible of police harassment and brutality, and fatal police shootings. “Native people have a very hard time in Montana,” he says. “Keeping polling places in white communities is a very efficient way to disenfranchise us.”

Full political participation has been a long time coming for American Indians. Nineteenth-century policy veered between killing and “civilizing” Indians, writes Daniel McCool, political science professor at the University of Utah and author of Native Vote: American Indians, the Voting Rights Act, and the Right to Vote. State laws offered enfranchisement to Indians who could show they’d done such things as renouncing tribal ties, and owning “white” clothes and houses.

In 1924, Congress declared Native people to be U.S. citizens, and thus entitled to vote, but they still had to overcome state laws and court decisions that blocked suffrage, says McCool. Even passage of the Voting Rights Act in 1965 didn’t ensure that American Indians could vote. They faced—and in some cases, still face—gerrymandered districts, lack of language assistance for those not fluent in English, registration barriers and harassment at the polls. “Native people are still in the courts, suing for access that the VRA and Fourteenth Amendment guaranteeing equal protection say they should already have,” says Four Directions legal director Greg Lembrich, an attorney in New York City.

To overcome the hurdles of distance, poverty, racism and a painful history, in mid-2012 several Montana tribes asked state and county elections officials for one satellite office on each of their reservations during the month prior to federal elections. Four Directions assisted with negotiations. But the counties were adamant that they didn’t have the time or resources to provide the offices. In 2012, Geraldine Custer told investigative news site 100Reporters.com, “I don’t care if they’re white, black or Chinese; I just don’t have the staff. It’s not about race. I’m just swamped.”

With no solution in sight, Four Directions helped tribal leaders from three reservations to identify plaintiffs, including Moore, and file a federal lawsuit. The first hearing, in October 2012, was for an emergency injunction to set up offices prior to the fall election. After U.S. District Judge Richard Cebull dismissed the request, the plaintiffs appealed.

At the time, Cebull was under fire for sending an email maligning President Obama’s mother. Cebull then resigned. In October 2013, the Ninth Circuit Court of Appeals vacated Cebull’s opinion in the Wandering Medicine lawsuit and sent the case back to Montana for a do-over. (In January 2014, a judicial oversight panel revealed that Cebull had sent hundreds of racist, sexist and homophobic emails, including some disparaging Native Americans.)

The change of judges has given Wandering Medicine new hope. In February, he watched a preliminary hearing before the new U.S. District judge, Donald Molloy, and told Indian Country Today Media Network that the suit is finally being heard by someone “who wants to stick to the facts and the law.”

The Senate at stake?

If Wandering Medicine succeeds in giving Natives in Montana equal access to the polls, the impact could resonate far beyond the state borders. As of late May, a New York Times analysis suggested that Republicans had about a 40 percent chance of gaining the six seats they need to take control of the Senate. Three seats seen as potential Republican pick-ups are in Montana, Alaska and South Dakota, which have large Native minorities (8, 19 and 10 percent, respectively) that lean, sometimes heavily, Democratic. In other words, the Native vote just might determine control of the Senate.

There are no nationwide Native party-registration figures, so understanding the party split among Native voters is best done by looking at areas that are almost entirely American Indian, says Four Directions consultant Bret Healy. He points to South Dakota’s Shannon County, which is nearly contiguous with the Pine Ridge Indian Reservation. In 2012, according to state figures, 5,930 residents were registered as Democrats and 583 as Republicans.

According to Tom Rodgers, a Washington, D.C., political strategist and member of the Blackfeet, a Montana tribe, the non-Native population in that state is divided between the two major parties, at about 45 percent each. “In between are the Indians,” says Rodgers, who notes that they vote overwhelmingly Democratic. In 2012, the Obama-Biden ticket received more than 90 percent of the vote in two Fort Belknap precincts and five Blackfeet precincts.

Among the states with large Native populations, the tightest Senate race is in Alaska, where the Times analysis placed even odds on incumbent Sen. Mark Begich, a Democrat, holding on to his seat. In Montana and South Dakota, the latest polls show the Republican candidates ahead by double digits. But with five months left before the general election, nothing is certain. Healy notes that the race is shifting in South Dakota, where the general election will likely pit Democrat Rick Weiland against not only a Republican challenger, but also two former Republican office-holders running as Independents. The potential for a split conservative vote combined with high Native turnout could give Weiland a shot, says Healy.

Meanwhile, in Montana, where Democratic incumbent Sen. John Walsh is facing a challenge from U.S. Rep. Steve Daines (R), Democrats are pulling out the stops to court the Native vote, including energetic campaigning on reservations. And Walsh is co-sponsoring the Native Voting Rights Act, which Alaska’s Begich introduced in the Senate on May 22.

Could American Indians turn the tide for Walsh? Maybe, says Rodgers. “But we have to have access. By that, I mean satellite voting offices on the reservations, and turnout in large numbers.”

It wouldn’t be the first time American Indians decided a national election, Lembrich notes. The Native vote has been credited with ushering Montana’s other senator, Democrat Jon Tester, to victory in 2006 and 2012. In South Dakota, Democrat Tim Johnson held on to his U.S. Senate seat in 2002 by just 500-some ballots after earning 92 percent of the roughly 3,000 ballots cast on the Pine Ridge reservation.

Other Democratic senators with decisive tribal backing include Begich, Washington state’s Maria Cantwell, and Heidi Heitkamp of North Dakota. In the 2002 Arizona governor’s race, Navajo turnout helped Democrat Janet Napolitano eke out a 12,000-vote margin of victory. “Without the Native American vote, I wouldn’t be standing here today,” Napolitano told the 2004 Democratic National Convention.

“We’ve proven that if we get out to vote, we can make a difference,” says Azure. If candidates ignore the reservations? “They may not get in,” he says.

Dems gone missing

While some Congressional Democrats are working to expand Native voting— Begich’s Native Voting Rights Act has five co-sponsors, including Montana’s embattled Walsh—the Democratic Party is curiously absent from the support team for the Wandering Medicine plaintiffs. In fact, the lead defendant and several county officials named in the suit are Democrats. Semans accuses Democrats of trading on decades-old accomplishments and alliances instead of addressing contemporary rights issues. This year in particular, he says, party members have basked in the reflected glory of the upcoming 50th anniversary of the Civil Rights Act. “They’re riding the coattails of truly great leaders such as Dr. King, while ignoring today’s Native call for civil rights,” he says.

About the national party’s position on the Montana lawsuit, the Democratic National Committee’s voter protection director Pratt Wiley says the DNC backs the Montana reservation satellite offices in theory, but believes “technical” challenges prevent setting them up. The party seems to be counseling patience. “The heart of the question in Montana from the Democratic perspective [is] how do we get to where we all want to be. It has to do with those technical questions: Who has the authority to do it, and who will write the check?” he says. Still, Wiley says, the American Indians are a “core constituency” of the party.

As a matter of recognized constitutional law, “technicalities” don’t override equal rights, says civil rights attorney Laughlin McDonald, director emeritus of the ACLU’s Voting Rights Project and author of American Indians and the Fight for Equal Voting Rights. “Administrative inconvenience cannot justify practices that burden the fundamental right to vote,” he says.

What would Martin Luther King do? “About Native voting? He sure as hell wouldn’t dither about technicalities,” says Four Directions consultant Healy, a former head of the South Dakota Democratic Party. “Read Dr. King’s ‘Letter from Birmingham Jail’ on the subject of waiting for rights.” In the 1963 letter, King decries the man “who paternalistically believes he can set the timetable for another man’s freedom.”

But hey, Democrats! How about winning elections? Controlling the Senate? Doesn’t the party want all those Native Democrats at the polls? Wiley says the DNC doesn’t see it that way. “We don’t look at [expanding the vote] as making sure that more Democratic voters vote. We don’t look at it as a program to make sure more African-American or Latino or Native voters can vote. It’s [about] making sure everyone can vote.”

Healy speculates that the DNC is reluctant to break ranks with party members who are among the Wandering Medicine defendants or with lead defendant McCulloch’s attorney, Jorge Quintana, who is on the Democratic National Committee. Rodgers adds that local elected officials of either party don't want to rile constituents in areas surrounding reservations. If Indians voted in large numbers, the balance of power would shift locally, says Rodgers, and non-Native people would no longer set the political agenda. Tribal members would be at the table when decisions are made—about water rights, rural transportation, energy development, healthcare for the high proportion of tribal members who are veterans, and much more.

Perhaps the DNC believes it can count on Native voters without taking sides in Wandering Medicine. This may be hubris, warns former Montana Democratic state legislator Margarett Campbell. Originally from Fort Peck Indian Reservation and now a Fort Belknap school superintendent, Campbell has fought for Indian rights for decades. She suspects that confidence in the Democratic Party may wane among tribal members, who may then stay home in 2014. “You can’t take a huge segment of your voting population and treat them like that without them feeling disenfranchised,” she says.

Aaniiih Nakoda College student body president Walker agrees, saying the timing of this crisis of confidence is terrible. He explains that the sequester and government shutdown badly affected Indian country, since delaying and canceling government contracts put tribal members out of work. As a result, American Indians see voting and having a political voice as not just important, but critical. At the same time, they feel the party they’ve supported so enthusiastically isn’t listening. “It’s disheartening,” says Walker.

Democrats should never take American Indian votes for granted, says Native Vote author McCool. He describes Native Americans as “acutely aware” and “issue-specific” voters, who have supported Republicans, including John McCain. Montana’s Republican Senate candidate understands this. In his bid to unseat Walsh, Daines has hired a tribal liaison and filed bills and held hearings on issues that interest tribes.

Finding solutions

William Main stands overlooking a warm spring in a deep valley just north of the Little Rocky Mountains. “The frogs have disappeared,” he says. “So have the fireflies and a silver-striped minnow.” The likely culprit is a cyanide heap-leach gold mine that the federal and state governments allowed to open in 1979 on one of the range’s peaks, Spirit Mountain, over the objections of many tribal members. The sacred site, where tribal members have long sought visions and collected healing plants, is gone, too. All that remains is an immense yellow scar on the horizon, where orange, yellow and blue-grey streams carrying lead, arsenic and other heavy metals bleed down battered slopes into the reservation’s rivers and creeks. For years, tribal members have called for robust studies on the effect of the mine’s toxins on human and environmental health.

According to Main, better voting access would encourage elected officials to help launch such studies and to respond to tribes’ myriad other problems as well: high unemployment, extreme poverty, substance abuse, a chronically underfunded healthcare system, and crumbling schools, public buildings and homes.

Wandering Medicine is not the only recent lawsuit that takes aim at the numerous obstacles Native people face in securing equal rights. In April, Voting Rights Project director emeritus McDonald and Montana ACLU attorneys negotiated a redistricting settlement that provides Fort Peck tribal members with equal representation on a local school board. That suit, Jackson v. Board of Trustees of Wolf Point School District, is one of many since the 1960s that have restructured districts that marginalized the Indian vote. The Navajo Nation is currently advancing just such a suit, which claims that election districts in Utah’s San Juan County, which the reservation overlaps, are designed so Navajo votes have less weight than those of non-Navajos.

In Alaska Native settlements, lack of language assistance is a major voting obstacle, according to Las Vegas attorney James Tucker. In Toyukuk v. Treadwell, Tucker argues that Yup’ik speakers in parts of southwestern Alaska haven’t received language assistance mandated by the Voting Rights Act for those who aren’t English-proficient. As a result, some Alaska Native voters struggle with lists of candidates, text of referenda, and instructions for signing, folding and other manipulations of the ballot that must be done correctly for the vote to count, says Tucker. He calls voting under such circumstances “a Hail Mary play.”

In South Dakota, Pine Ridge Indian Reservation voters settled Brooks v. Gant last year, giving them absentee-voting satellite offices through 2018. Four Directions helped frame the lawsuit, based on its experience setting up offices in past elections. The nonprofit then secured a commitment from South Dakota to use Help America Vote Act funds for offices on more reservations.

Main says these struggles and victories will bring Native people into our nation’s political life. “There will be more Native elected officials and a greater involvement for us in our traditional lands, which, taken altogether for the U.S. tribes, encompass the United States of America,” Main says. “We have fought for this country, and now we want to be part of taking better care of it.”

Semans agrees. “People are always telling us we have to improve our social and economic conditions,” he says. “Participating in the electoral process is how we’ll do it.”

UPDATE: On June 10, Wandering Medicine v. McCulloch was settled out of court. Montana Secretary of State Linda McCulloch and elections officials of three counties that overlap Indian reservations agreed to open polling places on reservations for two days a week during the month-long pre-election period when Montana allows absentee voting and late registration. The defendants will also pay the Indian plaintiffs $100,000 for their legal costs in the nearly two-year battle.

Plaintiffs’ attorney Alex Rate points out that the settlement clarifies that Section 2 of the Voting Rights Act, which prohibits election discrimination, applies to Natives. As a result, say Barb and OJ Semans of Four Directions, the Native voting-rights group that organized the lawsuit, more tribes in Montana and elsewhere will be able to seek equality. Says county defendants’ attorney Sara Frankenstein, “The three counties are looking forward to working with their respective Tribes.”

Tex Hall, chairman of the Coalition of Large Tribes and former head of the National Congress of American Indians, praised the settlement, calling it “a good day” for Indian country.

This story was reported with the support of the Leonard C. Goodman Institute for Investigative Reporting.

Stephanie Woodard is an award-winning journalist whose articles on American Indian rights and other topics have been published by many national publications and news sites.

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