Book Review, 0221 WYBJ, Vol. 43 No. 1. 16

AuthorBy Affie B. Ellis, Holland & Hart LLP Cheyenne, Wyoming
PositionVol. 43 1 Pg. 16

Book Review

Vol. 43 No. 1 Pg. 16

Wyoming Bar Journal

February, 2021

By Affie B. Ellis, Holland & Hart LLP Cheyenne, Wyoming

Voting in Indian Country

The View From the Trenches by Jean Reith Schroedel

In the United States, there are 574 federally recognized American Indian tribes, each with their own history, culture, language and governing structure. Although tribal members enjoy U.S. citizenship, state citizenship and tribal citizenship, the right to vote in federal and state elections has not always been recognized. In fact, in many cases, the right was denied. In a recently released book, author Jean Reith Schroedel provides an overview of the disenfranchisement of indigenous voting and the fight for voting rights.1

Even before the establishment of American colonies, European emigrants purchased land, engaged in trade and signed treaties with Indian nations, just as they would have with foreign nations.2 But tribes were not foreign nations. The Doctrine of Discovery and Manifest Destiny, however, provided a logical and moral justification to treat native inhabitants of the Americas as quasi-for-eigners.3

Nonetheless, after the Revolutionary War, Founding Fathers debated the civic status of indigenous people, with some believing they should be part of the body politic while others viewed them as "savages" and "natural enemies" of the newly formed United States.4 The Constitution of 1789 failed to resolve the issue explicitly but implicitly suggested that Indian nations were to be treated separately. For example, when it came to apportioning representatives to the House of Representatives, it excluded "Indians not taxed" from being counted.5 Further, the Constitution entrusted Congress to regulate commerce with "foreign Nations...and with the Indian Tribes."[6] Some U.S. leaders advocated for policies that would have allowed "civilized" Indian people to become citizens, often in exchange for renouncing their tribal membership.7

Legal disputes between the tribes and states during the 1820s-30s also led to seminal U.S. Supreme Court decisions where Chief Justice Johnson Marshall described tribes as, "wards to a guardian," "domestic dependent nations" and "distinct, independent political communities[.]"8 Though acknowledging Indian nations as "separate," however, Marshall also suggested that the United States had a tutelary obligation to native people.9

In the infamous pre-Civil War Dred Scott case which examined citizenship for Black Americans, Chief Justice Roger Taney picked up on this notion of tutelage, describing members of the "Indian race" as being in a "state of pupilage."10 But resolution of the civic status of American Indians was pushed to the periphery during the Civil War. When the war ended, Congress passed the 1866 Civil Rights Act to ensure citizenship for freed slaves but it excluded "Indians not taxed."[11] Even after the adoption of the 14th Amendment in 1868 which guaranteed birthright citizenship, Indian people born on the American soil, just as their ancestors for thousands of years, were still denied citizenship and the right to vote.12

For much of the late 1880s through the 1930s, Congress sought to assimilate native people and in doing so, provided paths to citizenship in exchange for abandonment of Indian ways.13 By the early 1920s, nearly two-thirds of the indigenous population had gained citizenship, including those who served in World War I.14 Thus, believing that most Indian people were (or would be assimilated) into white culture and obviating the need for continuation of Indian governments, Congress passed the Indian Citizenship Act of 1924 (ICA) which conferred full voting rights.15

Many states with large native populations were opposed to this enfranchisement. At the time of the ICAs passage, several states constitutionally prohibited Native Americans from voting.16 Some of these states mimicked Jim Crow laws in the South, such as utilizing literacy tests, to disenfranchise indigenous voting.17 Other states used different strategies specifically targeted towards native people. For example, several state constitutions prohibited "Indians not taxed" from voting.[18] More egregiously, some states argued that laws which prevented the mentally incompetent from voting be applied to all Native Americans because Indian people were “wards under the guardianship” of the United States.[19]

Congress ended the assimilation era in 1934 with the passage of the Indian Reorganization Act and affirmed that indigenous people had a right to govern themselves. This status is unique among other racial minorities. The U.S. Supreme Court recognized that tribal affiliation is more than a racial classification—it is a political affiliation.20 Accordingly, congressional acts affecting relations with Indian tribes are subject to rational basis review—not the heightened judicial review of strict scrutiny triggered by race-based laws.21

This distinction is important, but it has provided continuing confusion and even exclusion from efforts to ensure voter enfranchisement. For example, Congress passed the 1965 Voting Rights Act (VRA) to address voter suppression of Black Americans, particularly in the Deep South.[22] Section 2 of the VRA provides that no state can deny the right of any citizen to vote on account of “race or color.”23 During the early years of the VRA, there was disagreement over whether Indian people were covered on the VRA based on their racial classification as “Indians” or whether they were excluded from coverage on the basis of their tribal affiliation.24 Congress resolved the issue in 1975 when it renewed the VRA making clear that American Indians were covered under the VRA.25 Thus, Indian people can be covered by laws specific to Native America under Congress’ plenary authority and they can be covered under laws that generally apply to racial minorities. Notwithstanding, confusion persists that tribal affiliation is either a political affiliation or a minority classification even though Indian people can be treated as both.

Despite the passage of the VRA, native disenfranchisement remained, though less conspicuous to detect. For example, seemingly innocuous at-large elections can result in minority populations having little or no political representation. The U.S. Supreme Court developed three pre-conditions to determine whether such elections dilute minority votes.26 A claimant must show: 1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district...

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