In Rare Move, the Justice Department Drafts a Bill of Its Own—To Ensure Native Voting Rights

Stephanie Woodard June 1, 2015

A new DOJ draft bill recognizes that getting to the polls can be challenging for tribal voters. This is certainly true in Alaska. Leading up to the 2014 election, Stephanie Poulsen, left, and Angel Ayojiak, at the wheel, were among ​27 voter-support specialists hired by ​Bristol Bay Native Corporation ​to help villagers like Sean Williams, seated, and Chad Myas, right, get to ​the ballot box. ​With Native-language ballots and the new early-voting capability, turnout was up throughout Native Alaska. In some villages, virtually everyone voted. (Stephanie Woodard)

Advo­cates say the bill could be a game-chang­er’ for a pop­u­la­tion that must some­times cross hun­dreds of miles — and even moun­tains — to vote

The Depart­ment of Jus­tice has put its con­sid­er­able mus­cle behind new draft leg­is­la­tion to ensure that Amer­i­can Indi­ans and Alas­ka Natives have the same oppor­tu­ni­ties to vote as oth­er Americans.

On May 21, the Jus­tice Depart­ment announced the Trib­al Equal Access to Vot­ing Act. I am call­ing on Con­gress to help remove the sig­nif­i­cant and unnec­es­sary bar­ri­ers that for too long have con­front­ed Amer­i­can Indi­ans and Alas­ka Natives attempt­ing to cast their bal­lots,” said Attor­ney Gen­er­al Loret­ta E. Lynch.

It’s unusu­al for the Jus­tice Depart­ment to pro­pose leg­is­la­tion, says spokesper­son Wyn Horn­buck­le, and it’s a mea­sure of how impor­tant the depart­ment feels this issue is.” To move for­ward, the leg­is­la­tion will require spon­sors in the House and Senate.

The act would place at least one elec­tion office in each trib­al com­mu­ni­ty that requests it, thus reduc­ing the vast dis­tances, often over for­bid­ding ter­rain, that many Native vot­ers face.

Here’s one exam­ple from the Nation­al Con­gress of Amer­i­can Indi­ans (NCAI), which has praised the bill: Vot­ers on the Duck Val­ley Reser­va­tion in Neva­da must trek more than 200 miles round-trip to the polls in Elko.

Or, from The Miss­ing Native Vote,” my 2014 In These Times inves­ti­ga­tion into bar­ri­ers to Native vot­ing access: Amer­i­can Indi­ans on three Mon­tana reser­va­tions trav­eled two to three times far­ther than whites to get to the polls in their coun­ty cour­t­hous­es — despite being far less like­ly to have a vehi­cle for the trip, or even suf­fi­cient gas money.

Some Alas­ka Natives must cross a riv­er or moun­tain range to cast their bal­lots, notes Prin­ci­pal Deputy Assis­tant Attor­ney Gen­er­al Sam Hirsch.

These are prob­lems that would be unfath­omable to sub­ur­ban vot­ers,” Hirsch says. They’re bla­tant­ly unfair.”

The prob­lem with the cur­rent sys­tem, accord­ing to Deputy Assis­tant Attor­ney Gen­er­al for Civ­il Rights Pamela Kar­lan, is that elec­tions are for the most part run by state or local gov­ern­ments, which are also respon­si­ble for staffing polling places. Often, tribes had to resort to expen­sive, pro­tract­ed lit­i­ga­tion to get the equal access guar­an­teed under the Vot­ing Rights Act. The goal of the DOJ pro­posed bill is to set a clear fed­er­al guide­line for where a polling place must be estab­lished, reduc­ing the need for lawsuits.

The Jus­tice Department’s spon­sor­ship def­i­nite­ly brings height­ened aware­ness to the sub­stan­tial [elec­tion] bar­ri­ers that our peo­ple con­tin­ue to expe­ri­ence,” says Nicole Bor­romeo, gen­er­al coun­sel for the Alas­ka Fed­er­a­tion of Natives. Last year, Bor­romeo, who is Athabas­can from McGrath Native Vil­lage, was part of an inten­sive effort to bring ear­ly vot­ing for the first time to more than 100 remote Native villages.

Some trib­al lead­ers expressed doubts about some require­ments in the leg­is­la­tion — for exam­ple, that tribes must request a polling place in order to get one — not­ing that no oth­er peo­ple have to ask for their vot­ing rights.

Our rights should be auto­mat­ic, like every­one else’s,” said William Snuffy” Main, for­mer pres­i­dent and Gros Ven­tre cul­tur­al leader at Fort Belk­nap Indi­an Reser­va­tion, in Mon­tana. Coun­ties and states run elec­tions, so they should be required to con­tact us and say, Do you want an office? And where should we put it?’ ”

Main also won­dered why the bill appears to shift a few fed­er­al-elec­tion func­tions, such as some poll­work­er train­ing, from the states and coun­ties to the tribes. The lat­ter now han­dle only trib­al-elec­tion activ­i­ties. These prob­lems need to be fixed upfront,” he says. Horn­buck­le, of the Jus­tice Depart­ment, respond­ed that the bill won’t trans­fer respon­si­bil­i­ty to the tribes but rather will increase their role, some­thing which runs to the heart of the pro­posed legislation.” 

Oth­er promi­nent Indi­an-coun­try fig­ures agreed that the draft is just a begin­ning. This draft leg­is­la­tion will open up much-need­ed con­ver­sa­tions between the tribes, states and fed­er­al gov­ern­ment, which will prob­a­bly improve it,” says OJ Semans, the Rose­bud Sioux co-direc­tor of Four Direc­tions, which has worked on vot­ing rights for more than a decade in South Dako­ta, Mon­tana, Neva­da and Arizona.

The path to the pro­posed leg­is­la­tion has been a long one, begin­ning when indige­nous peo­ple became cit­i­zens and vot­ers in 1924, only to have states and coun­ties erect obsta­cles. Some man­dat­ed that Amer­i­can Indi­ans who wished to take part in non-trib­al elec­tions must first show they owned white” hous­es and clothes, or had renounced their tribes. When pro­tec­tions of the 1965 Vot­ing Rights Act were extend­ed to Native peo­ple in 1975, South Dakota’s then-attor­ney gen­er­al called Native vot­ing rights an absur­di­ty” and told the state’s top vot­ing offi­cial to drag her feet on implementation.

Despite scores of law­suits by the Amer­i­can Civ­il Lib­er­ties Union, the Native Amer­i­can Rights Fund (NARF), the Jus­tice Depart­ment and oth­ers, states and coun­ties con­tin­ue to hin­der Native vot­ers. In 2014, vot­ers on the por­tion of Pine Ridge Reser­va­tion that over­laps Jack­son Coun­ty, South Dako­ta, had to sue for a satel­lite vot­ing office that would give them access equal to that of white res­i­dents of the coun­ty. Also in 2014, the Jus­tice Depart­ment stepped in to pre­vent a New Mex­i­co coun­ty from elim­i­nat­ing elec­tion infor­ma­tion in the Nava­jo and Keres (south­ern Pueblo) lan­guages. In Alas­ka, NARF won a law­suit that required the state to pro­vide fed­er­al­ly man­dat­ed lan­guage assis­tance and trans­lat­ed bal­lots to those who are flu­ent in Native lan­guages, though not English.

Native peo­ple may be just under 2 per­cent of the U.S. pop­u­la­tion over­all, accord­ing to the U.S. Cen­sus. How­ev­er, they can have unex­pect­ed clout at the polls, due to the con­cen­tra­tion of their pop­u­la­tion in a few states, such as South Dako­ta, which the Cen­sus tal­lies at about 10 per­cent Native, Mon­tana, at 8 per­cent, and Alas­ka, at 19 percent. 

In 2014, access to ear­ly vot­ing con­tributed to much high­er turnouts among Alas­ka Natives than in the 2010 midterms. This, in turn, like­ly helped Alas­ka elect a Demo­c­ra­t­ic gov­er­nor and lieu­tenant gov­er­nor (who is Native) and con­tributed to the huge mar­gins of vic­to­ry for ini­ta­tives to pro­tect the vast Bris­tol Bay region from min­ing and increase the state min­i­mum wage. Nation­wide, the numer­ous elect­ed offi­cials with strong Native sup­port include Demo­c­ra­t­ic Sens. Maria Cantwell (Wash­ing­ton), Hei­di Heitkamp (North Dako­ta) and Jon Tester (Mon­tana) and Repub­li­cans John McCain (Ari­zona) and Lisa Murkows­ki (Alas­ka). Though Native vot­ers tend to vote Demo­c­ra­t­ic — over­whelm­ing­ly so in many precincts — they cross the aisle for can­di­dates who respond to their issues.

The pro­posed Trib­al Equal Access to Vot­ing Act is already draw­ing atten­tion on Capi­tol Hill. Find­ing bipar­ti­san back­ing is essen­tial, accord­ing to NCAI’s gen­er­al coun­sel, John Dos­sett. It is hard to tell how long the process will be, Dos­sett said, not­ing that it took sev­er­al years to extend Vio­lence Against Women Act cov­er­age to Native women.

Sen. Heitkamp tells In These Times that she looks for­ward to tak­ing up the bill. For far too long, Native Amer­i­cans have had their voic­es silenced at the vot­ing booth,” she says. Every­one in the Unit­ed States should have the same right to vote, and they shouldn’t have to jump through hoops to do it.”

Heitkamp said she would work on the pro­posed leg­is­la­tion with fel­low mem­bers of the Sen­ate Com­mit­tee on Indi­an Affairs, which includes Cantwell, Tester, Murkows­ki, McCain and oth­ers from states with sig­nif­i­cant Native pop­u­la­tions. One com­mit­tee mem­ber, Repub­li­can Steve Daines of Mon­tana, respond­ed to In These Times’ query about the pro­pos­al by pledg­ing to ensure that our tribes have equal rights under the law.”

A com­mit­tee staffer not­ed that the draft bill has arrived and has not yet been offi­cial­ly intro­duced or sched­uled for hear­ings. The Huff­in­g­ton Post reports that Tester will offer his own Native vot­ing rights bill next month.

Natal­ie Lan­dreth, a mem­ber of the Chick­a­saw Nation of Okla­homa and a staff attor­ney with the Native Amer­i­can Rights Fund, said NARF looked for­ward to work­ing on the leg­is­la­tion with Con­gress and the Jus­tice Depart­ment and would make sug­ges­tions to max­i­mize its impact.

As the say­ing goes, every jour­ney of a thou­sand miles begins with a sin­gle step,” says Black­feet trib­al mem­ber and polit­i­cal strate­gist Tom Rodgers, of Car­lyle Con­sult­ing, in Wash­ing­ton, D.C. Is [the] draft bill per­fect yet? No. But after we have all con­tributed to improv­ing it, it could be the biggest game-chang­er in Native enfran­chise­ment since we got the right to vote.”

Stephanie Woodard is an award-win­ning jour­nal­ist who has writ­ten inves­tiga­tive arti­cles for In These Times. Her new book is Amer­i­can Apartheid: The Native Amer­i­can Strug­gle for Self-Deter­mi­na­tion and Inclu­sion.
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