Native Americans, the first people to inhabit the area now known as the United States, have tragically been disenfranchised for much of the nation’s history. In 1924, Native Americans were officially granted United States citizenship by the Indian Citizenship Act.
However, many states disenfranchised Native Americans after 1924, forbidding them from voting. In Arizona, until the 1948 case of Harrison v. Laveen overturned this status, Native Americans were considered by the state constitution to be under its guardianship, in the same category as certain minors and insane persons. Under this interpretation, Native Americans were explicitly disenfranchised under Arizona’s state constitution and law. The Voting Rights Act of 1965 explicitly banned any restrictions on voting based upon race or color, providing explicit voting rights to all Native Americans. Native Americans are also a protected class for purposes of federal civil rights law, protected from discrimination in employment and civil rights law.
Despite this de jure enfranchisement, achieving de facto voting rights for indigenous Americans is a continuing struggle. In Utah’s San Juan County, a majority-Native American area, Navajo voters were packed into one of the three county commission districts to ensure a majority-white county commission, an arrangement struck down by federal courts as a racial gerrymander. Before this ruling, the districts had not been redrawn since 1986. In November 2018, through a special election held by federal court order, voters elected the first Native American majority to the San Juan County Commission.
State governments have continued to suppress Native American votes. For example, in 2018, North Dakota imposed strict voter ID requirements that required voters to obtain identification showing a street address. Many Native Americans live on reservations in homes that do not have conventional street addresses used by the Postal Service. Nearly 5,000 Native American voters were affected, as their addresses were their local post office box, instead of a home address.
As part of its broader voting rights advocacy, the League has been active in the fight for upholding and advancing Native American voting rights. Two cases in particular show the possibilities and struggles of protecting Native Americans’ right to vote.
In Western Native Voice v. Stapleton, Native American plaintiffs sued to overturn Montana’s Ballot Interference Prevention Act. (BIPA) The act severely restricted the process of ballot collection, in which a designated person, with voters’ consent, picks up and casts their ballots after they have completed and sealed them.
Absentee ballots, which can expand voter participation and access in urban and suburban areas, do not have the same positive effect on Native American reservations. Many of these are in remote areas far from any post office, government agency, or other public services. For example, on the Assiniboine and Sioux tribes’ reservation in Fort Peck, Montana, some residents do not receive mail at their homes. The same is true of homes on the Blackfeet Reservation. Furthermore, post offices are often located far from residents’ homes. For example, the Fort Belknap reservation, an area of 675,147 acres, or 1,055 square miles, has only one post office.
For these reasons, allowing ballot collection is vital for Native Americans to exercise their rights. The Montana BIPA forbade anyone other than an election official, postal worker, caregiver, family member, household member, or acquaintance from collecting ballots at all. Other than postal service workers or election officials, those allowed to collect ballots were forbidden from collecting more than six. Anyone who violated these requirements could be subjected to a $500 fine per unauthorized ballot and possible imprisonment.
This numerical limit on ballot collection was not supported by any evidence at trial or testimony during the legislative process. Nor was there any evidence of significant voter fraud in Montana. The Heritage Foundation, a conservative think tank, found that there was only one case since the 1980s. A Montana state court struck down the BIPA as an unconstitutional violation of the plaintiffs’ right to vote, freedom of speech, and due process.
Similarly, in Yazzie v. Hobbs, the League filed an amicus brief in support of the six plaintiffs, who were members of the Navajo Nation. Like the tribes in Montana, the Navajo Nation is located in a remote area with unreliable mail service, and many residents must make a long journey to a post office to pick up their mail, as they do not receive postal delivery.
Because of this, the plaintiffs asserted that Arizona’s deadline for the receipt of absentee ballots, November 3, 7:00 PM, was a violation of Section 2 of the 1965 Voting Rights Act, the Equal Protection Clause of the US Constitution, and the free and equal elections clause of the Arizona Constitution. They requested an extension of the receipt deadline to November 13 for Navajo reservation voters, so long as the ballots were postmarked by November 3.
However, a federal court dismissed the plaintiffs’ claims for lack of standing. The federal court ruled that because Yazzie and her fellow plaintiffs were suing as individuals, not as representatives of the Navajo Nation, they could not cite difficult voting conditions on the reservation as individual injuries as a basis for their lawsuit. Furthermore, the court ruled it could not implement the plaintiff’s proposed solution for two reasons: (1) the elections officials of the three counties in which the Navajo reservation was located had no way to differentiate ballots cast by Navajo and non-Navajo voters and (2) the Post Office did not always postmark mail-in ballots or include a date stamp when it does. As a result, all ballots cast by voters on the reservation had to arrive by 7 PM on November 3 to count.
Lessons from Yazzie and Western Native Voice
Several important lessons emerge from these two cases. The first is that Native American voters face infrastructure challenges far beyond those of an average American voter. The vast majority of Americans live in urban or suburban areas, or in areas with regular postal service. By contrast, Native American reservations are largely located in rural areas far from any major population center, and in often inhospitable terrain with little, if any infrastructure at all.
The plaintiffs in Yazzie lived on a reservation spanning 27,000 square miles over three states, largely consisting of sparsely populated rural areas. There, over 50,000 homes and businesses had no street address, and only 1,000 buildings had any address at all. Nearly 41% of all Native Americans living on reservations have no access to broadband Internet access. Put simply, Native American voters are often cut off from the normal systems of infrastructure, transportation, and recordkeeping that elections, postal service, and voter registration are built upon. Online voter registration, a service adopted by many states, means very little to someone who has no mail service or Internet access and lives dozens of miles from the nearest post office or elections office.
Thus, in order to fully enfranchise and serve Native American voters, government at all levels must create an infrastructure suited to their needs. The Native American Voting Rights Act is a vital first step in doing so.
The Act seeks to provide sufficient polling places to Native American reservations and ease the vote-by-mail process for Native American voters. States would be required to provide at least one polling place, at no additional cost to the tribes, in each precinct at a location selected by the tribes. Most importantly, the Act also requires states to provide extra polling places if the totality of circumstances shows that failure to do so would give Native American voters on reservations less opportunity to vote than those outside it. Finally, states would be required to provide the necessary supplies and funding for polling places to the same extent as areas outside the reservation.
Access to vote by mail would be expanded through the following measures: prepaid postage for ballots, the designation of a tribal government building as a ballot pickup and collection location, and no-excuse absentee voting without a residential address requirement.
Finally, federal facilities or federally funded facilities would become voter registration locations at the request of the tribe.
These measures would alleviate some of the chief causes of Native American disenfranchisement, namely the lack of election infrastructure and access to no-excuse absentee voting. Citizenship is a dead letter without the means to exercise it. Nearly one third of Native Americans live in poverty, with a median annual income of just $23,000, and almost 80% live in rural areas. Beyond economic deprivation, suppression of Native American votes, like that attempted in Montana, is another devaluation of Native Americans’ citizenship, which ostensibly places them as equals with non-Natives before the law. As Justice Udall wrote in Harrison v. Laveen,
"In a democracy suffrage is the most basic civil right, since its exercise is the chief means whereby other rights may be safeguarded. To deny the right to vote, where one is legally entitled to do so, is to do violence to the principles of freedom and equality."
Native American voters should not be required to engage in constant litigation to exercise a basic right granted to them by virtue of citizenship. At the very least, the federal government must create the infrastructure to allow them to exercise that right. Enacting the Native American Voting Rights Act would be a first step in fulfilling the promises made to indigenous Americans over the centuries, almost all of which were broken, in a manner described by Chief Red Cloud of the Oglala Lakota:
They made us many promises, more than I can remember, but they never kept but one; they promised to take our land, and they took it."
– Chief Red Cloud