Mark Maxey/PW

“If we don’t uphold the Voting Rights Act, we are denying constitutional rights for Indigenous persons to be counted,” says Dr. James Thomas Tucker, Wilson Elser attorney, and Native American Rights Fund (NARF) pro-bono lawyer.

NARF is a not-for-profit organization for the express purpose of assisting tribal nations and Indigenous persons with their explicit rights under Treaties and the U.S. Constitution.

NARF sponsored the Southern Plains Voting Rights Hearing on February 23rd at the Tulsa University Law Center. They will by the conclusion of this summer have held twelve such hearings. Participants include a wide range of tribal leaders, advocates, and voters.

Wanasattia, whose colonized name is Christina Blackcloud, spoke at the hearing and is a member of the Meskwaki Nation in Iowa. “Local voting does not reach out to our settlement area,” Wanasattia said. “Candidates normally do not even reach out to our tribal members unless asked to.”

Wanasattia’s husband, Maqebya, whose colonized name is Mike Keahna, is a traditionalist and spoke from his and other traditionalists’ viewpoint. “There is a bad attitude towards politics and politicians. As youth, we saw them as being crooks. Historically we see the government as being the cause of our cultural genocide. So why get involved?”

“Our tribal government always has to defend tribal rights, and sovereignty rights.,” Wanasattia spoke. “We have to educate our legislators.”

I did an informal non-scientific poll online and one response by traditionalist Ben Carnes (Choctaw Nation of Oklahoma), summed up over half the comments. I asked if they voted in elections and if not, why. “My position is that I am not a citizen of a government who perpetuates that lie that we are,” Carnes says. “Slavery was legal just as well as Jim Crow, but just because it is law doesn’t make it right. We didn’t ask for it, the citizenship act was imposed upon us as another step in their social and mental conditioning of Native people to confiscate them of their identity. It was also a legislative method of circumventing the ‘Indians not taxed’ clause of the Constitution, thereby justifying imposing taxes.”

Carnes went on to say, “The U.S. electoral system is a very diseased method where candidates can be purchased by the highest corporate (contributor) bidder. The mentality of voting for the lesser of two evils is a false standard to justify the existence of only a two-party system. Checks and balances are lacking to ensure that public servants abide by the will of the people. The entire thing needs to be scrapped as well as the government itself.”

Nine days before the hearing in Tulsa, Dr. Tucker spoke before the Senate Subcommittee on Indian Affairs. Dr. Tucker spoke exclusively with People’s World on the 2020 Census and how it relates to the ballot box for Indians. “It goes beyond just voting: The Constitution mandates that everyone in the United States has to count,” Dr. Tucker stated. He is concerned, however, that in the 2010 Census the Native population was undercounted by 5 percent. “It is said that for each person not counted equals $3000 dollars of federal tax monies lost. Let’s say you have over 100,000 Natives in a state not counted, do the math and you will see what is lost.”

The hearings are designed to identify access to voter registration, voting sites, early voting, poll worker opportunities, treatments at the polls, redistricting, language barriers, and other obstacles that might prevent Native Americans from being able to participate fully and effectively in the political process.

Tucker spoke early on of the success he and NARF had with voter irregularities in Alaska. “Our case had to do with how the State of Alaska Election Board denied language and polling sites for many of the tribes,” he stated. Many of the farther inward-based tribes live hundreds of miles away from polling sites. Many of the Alaskan Natives speak only Native languages and do not understand English. “Basically, many tribal members were denied a Constitutional right, and when we brought it up to the Election Board they acted like they did not care,” Tucker continued.

NARF states in their Legal Review Winter/Spring 2016 that they are expanding their work to protect and advance the Indian vote. In 2006 they were asked to prepare a report on the impact of the Voting Rights Act (VRA) in Alaska. Further research proved that Alaska had in fact been violating the VRA from day one when it passed in 1965. In fact, for over 30 years the needs of native Yup’ik, Inupiaq, and Gwich Native language speakers were being ignored. During the research they found an email from an election board worker. When asked about the denial of rights to Alaskan Natives, their reply was “So?” In many states Indigenous tribal members are discriminated against still.

Also on February 22, a day before the Tulsa hearing, NARF won a case for the Navajo Nation vs. San Juan County a Utah governmental subdivision.

Harvard Law Review, in its article “Securing Indian Voting Rights”, discusses many vital components to voter disenfranchisement with Indigenous tribal members. Despite the VRA of 1965, some tribal members were still being denied the right to vote. Furthering the longstanding disenfranchisement was the fact that the Indians were not granted citizenship until 1924. David Wilkins says it was “thrust upon the Indians without consent,” although two-thirds of Indians had already become citizens before the 1924 congressional act.

Much of the Harvard Law Review article contains case history showing how hard it is for Indigenous persons to vote. Some do not speak English. Some do not have any identification other than a tribal membership card, and most states’ election boards do not accept that form of identification. NARF challenged a North Dakota Voter ID Law. Other times the polling sites are over a hundred miles away. The poverty of Indigenous individuals means that many do not even own a car to drive to the polls.

No matter what the issue is, the current VRA of 2006 clearly states that every citizen has a right to vote. Yet many tribal citizens are denied this basic constitutional right.

Historically, the racist elements can be seen in the 1800s before the Fourteenth Amendment was ratified. The Indian Commerce Clause had within it the Three-Fifths Clause. Slaves counted as three-fifths of a person for apportionment purposes and it established that “Indians not taxed” (i.e., not owning land) would be excluded. Some states just explicitly disenfranchised “Indians not taxed.” See McCool et al., supra note 13, at 12 (noting that in 1940 five states, including New Mexico, had such a restriction).

The U.S. Department of Justice had to intervene in a lawsuit in South Dakota regarding disenfranchisement of residents living on the Pine Ridge Reservation. NARF in January 2015 started a new project called the Native American Voting Rights Coalition. NARF states, “The right to vote is considered a fundamental right within our democracy; however, for Native Americans, the fight to obtain voting rights is couched in a long history of racism and struggle.”

Ongoing issues with voting rights violation are being taken up by NARF, National Congress of American Indians, Wilson Elser, and Four Directions.

All these organizations are jointly concerned but hopefully optimistic for the 2018 and 2020 elections. The findings of the hearings will help increase Indigenous votes. The original goal of the Native American Rights Fund has been that each Indigenous person’s voice is heard: One voice, one vote. With such a dutiful concentration of hearings and work with many different Indigenous people, the voting from these members should increase.