American Indians and the Fight for Equal Voting Rights.

• Author: Karlan, Pamela S.
• Position: Book review

American Indians and the Fight for Equal Voting Rights

BY LAUGHLIN MCDONALD

NORMAN, OK: UNIVERSITY OF OKLAHOMA PRESS, 2010, PP. 347. $55.00.

REVIEW CONTENTS I. INDIAN CITIZENSHIP AND THE FIGHT FOR ENFRANCHISEMENT II. INDIAN VOTERS AND THE FIGHT FOR REPRESENTATION III. INDIAN ELECTIONS AND THE FIGHT OVER SELF-GOVERNMENT CONCLUSION In Northwest Austin Municipal Utility District No. One v. Holder, (1) the Supreme Court expressed its faith that, because of the Voting Rights Act, "we are now a very different Nation." (2) Few lawyers are more responsible for that transformation than Laughlin McDonald, the longtime director of the American Civil Liberties Union's voting rights project. In his most recent book, American Indians and the Fight for Equal Voting Rights, (3) McDonald shows us, however, that we are not quite as different as the Supreme Court might think. In nearly every respect, full enfranchisement has come late to the descendants of America's first inhabitants. (4)

When Congress amended section 2 of the Voting Rights Act in 1982 to forbid practices that result in a denial or dilution of minority voting strength regardless of the motivation behind them, (5) it directed courts to conduct "a searching practical evaluation of the 'past and present reality,'" (6) talking into account "the context of all the circumstances in the jurisdiction in question." (7) McDonald's book, based on a series of section 2 cases that he and his colleagues at the ACLU have litigated on behalf of Indian plaintiffs, (8) takes a similar approach, offering detailed descriptions of the barriers to full political equality faced by Indians in communities in five Western states. (9)

In many important respects, those barriers resemble the ones confronted by blacks in the South and Latinos in the Southwest. Thus, many of McDonald's individual chapters are organized around the presence of the "Senate factors"--nine aspects of political and socioeconomic life that Congress distilled from those voting rights cases as "probative" of section 2 violations. (10) In particular, McDonald describes, in detail both painstaking and painful to read, a history of exclusion and a level of ongoing polarization that rivals Mississippi or the Rio Grande Valley. If anything, South Carolina seems further along the path to political equality than South Dakota. (11)

McDonald and his colleagues brought to their voting cases involving Indian plaintiffs a doctrinal framework and a set of litigation techniques honed in cases involving African-Americans. But, as McDonald explains, Indians occupy a distinctive status within the American political order. (12) Indians are citizens not only of the United States and the state where they reside but often also (and particularly in those regions where they are most likely to bring voting rights claims) of a separate sovereign as well--their tribe. This fact has inflected both the history of Indian disenfranchisement and the course of litigation under the Voting Rights Act.

Indian tribes, as the Supreme Court has repeatedly observed, "are 'distinct, independent political communities, retaining their original natural rights' in matters of local self-government." (13) Thus, like all political communities, they confront questions of membership, allocation of power, and political structure.

This Review explores these questions of disenfranchisement, dilution, and constitutional design. Part I describes the history of Indian disenfranchisement in light of their distinctive status. Indians' exclusion from the political process reflected profound racism as pernicious and pervasive as the discrimination facing blacks in the South and Latinos in the Southwest. But it also involved complex constitutional and conceptual issues unique to Indians. Part II then turns to the relatively recent vote dilution litigation that forms the heart of McDonald's book. Indian voting rights cases have followed a clear path blazed by earlier cases involving blacks and Latinos. Nevertheless, themes related to Indians' distinctive political status crop up within the litigation at various points. Finally, Part III looks beyond Indians' claims under the Voting Rights Act to discuss issues related to internal tribal elections. Like other elections, these contests involve fundamental questions about enfranchisement and electoral design. Tribal answers to these questions sometimes depart dramatically from the rules governing federal, state, and local elections in ways that tie into ongoing debates extending far beyond Indian law.

1. INDIAN CITIZENSHIP AND THE FIGHT FOR ENFRANCHISEMENT

   On April 6, 1880, the city of Omaha, Nebraska, was set to hold elections for its city council. John Elk, a city resident, showed up shortly before Election Day at the registrar's office seeking to have his name placed on the voting rolls. The registrar, Charles Wilkins, refused Elk's request on the grounds that Elk was an Indian. Elk sued Wilkins in federal district court, seeking $6000 in damages for violation of his constitutional right to vote.

   The Supreme Court held, however, that Elk could not invoke the Fifteenth Amendment's protection against racial discrimination in voting (14) because that protection extended to "citizens of the United States," and Elk was not a citizen. The case turned on the Citizenship Clause in section 1 of the Fourteenth Amendment. That clause--so much in the news these days with anti-immigrant hysteria over purported "anchor babies" (15)--provides that "[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." (16) Elk's position was that, having "severed his tribal relation" by moving off the reservation into white society and having thus "fully and completely surrendered himself to the jurisdiction of the United States," (17) he was a citizen.

   The Court disagreed. Noting that "Indians not taxed"--essentially, Indians living on tribal lands--had been excluded from the population base for apportioning seats in the House of Representatives under the original Constitution, (18) the Court reiterated the longstanding view that Indians were members of "distinct political communities," owing "immediate allegiance to their several tribes, and were not part of the people of the United States." (19)

   The Court then concluded that the Citizenship Clause of the Fourteenth Amendment did not change that essential fact. The Civil Rights Act of 1866, which became the basis for the Fourteenth Amendment, had defined as citizens "all persons born in the United States and not subject to any foreign power, excluding Indians not taxed." (20) The Court saw no significance to the omission of that exclusionary language from the Citizenship Clause, particularly given the continued exclusion of Indians not taxed from the basis for apportionment in section 2 of the Amendment. (21) Since Indians living on tribal lands thus did not become U.S. citizens at birth, they could obtain citizenship only through naturalization. Naturalization could be accomplished only with the consent of the federal government, and not by the unilateral act of an individual Indian who decided to separate himself from his tribe. (22) Elk had not been naturalized; he had simply moved to Omaha. The Court thus concluded that Elk, "not being a citizen of the United States under the Fourteenth Amendment of the Constitution, has been deprived of no right secured by the Fifteenth Amendment." (23)

   Justice Harlan's dissent did not dispute the proposition that Indians who remained affiliated with their tribe were not citizens of the United States unless the United States conferred citizenship on them wholesale. (24) Rather, he argued only that the two prerequisites for citizenship in section 1--first, that the person be either born or naturalized in the United States and, second, that he be "subject to the jurisdiction thereof"--did not have to be fulfilled simultaneously. The Citizenship Clause, he argued, "implies in respect of persons born in this country, that they may claim the rights of national citizenship from and after the moment they become subject to the complete jurisdiction of the United States." (25) Quoting Judge Thomas Cooley's edition of Joseph Story's Commentaries on the Constitution of the United States, he noted that when

   the tribal relations are dissolved, when the headship of the chief or the authority of the tribe is no longer recognized, and the individual Indian, turning his back upon his former mode of life, makes himself a member of the civilized community, the case [under the Fourteenth Amendment] is wholly altered. He then no longer acknowledges a divided allegiance; he joins himself to the body politic.... (26) Indians were entitled to national citizenship when they "abandon[ed]" their tribe and became residents of one of the states. Otherwise,

   the Fourteenth Amendment has wholly failed to accomplish, in respect of the Indian race, what, we think, was intended by it; and there is still in this country a despised and rejected class of persons, with no nationality whatever; who, born in our territory ... are yet not members of any political community nor entitled to any of the rights, privileges, or immunities of citizens of the United States. (27) Even under Justice Harlan's view, then, Indians would be entitled to invoke the Fifteenth Amendment's protection of their right to vote only if they severed their ties with the Indian community. (28)

   That general view prevailed as a matter of federal law for the next forty years. The Dawes and Burke Acts conferred citizenship on the majority of Indians, (29) but only because they agreed to the division of their lands ("allotment"), left the reservation, or cut their ties to their tribes. As McDonald trenchantly observes, "Indians became citizens, but only by ceasing to be Indians." (30)

   After a series of...