Native Voting Power: Enhancing Tribal Sovereignty in Federal Elections.

AuthorWyman, Noelle N.

NOTE CONTENTS INTRODUCTION 863 I. THE ANTIDISCRIMINATION MODEL OF VOTING RIGHTS 867 A. The Rise and Decline of the VRA 868 B. Efforts to Revive Voting Rights 873 C. Beyond Rights-Based Reform 875 II. THE SOVEREIGNTY MODEL OF VOTING POWER 877 A. Voter Suppression from a Sovereignty Lens 877 1. Historical Tribal-Abandonment Requirements 879 2. Voter Suppression and Tribal Sovereignty Today 883 3. Tribal Interests in Federal Elections 886 B. Voting Power as a Federal Trust Responsibility 887 III. A LEGISLATIVE PROPOSAL: TRIBAL-STATE COMPACTS 890 A. Background on Tribal-State Cooperation 891 B. The Framework 895 1. Compact Formation 895 2. Federal Funding 897 3. Administrative Enforcement 898 4. An Alternative Model 899 C. Congressional Authority 902 1. Elections Clause Power and Plenary Power 902 2. Overcoming Anticommandeering Concerns 904 D. Pragmatic Advantages 905 1. Avoiding Reliance on Discrimination Claims 905 2. Harmonizing with Election-Law Doctrine 907 CONCLUSION 908 INTRODUCTION

The trajectory of voting rights in the United States displays both "the best of America" and "the worst of America." (1) In the second half of the twentieth century, following the passage of the Voting Rights Act of 1965 (VRA), voting steadily became more accessible and gaps in racial turnout dwindled. (2) Now, restrictive voting laws are proliferating in what some have termed "Jim Crow 2.0," (3) while the avenues for challenging them are narrowing. (4)

Native American communities have always struggled for full democratic participation. Historically, many states outright barred tribal members from voting, often explicitly on the premise that they were not competent to participate in the political process. (5) Facial discrimination and categorical exclusion persisted well past the Fifteenth Amendment's enactment, and in some states until the late 1950s. (6)

Today, exercising the right to vote requires some Native citizens living on reservations to travel hundreds of miles to the nearest polling place. (7) With elections held in November, the journey can be a treacherous one over long and icy roads. Given the persistent poverty afflicting many Native communities, putting aside gas money and accessing a working vehicle is not always an easy solution. (8) Sometimes, driving is not even possible: some Alaska Natives have needed to travel by plane in order to cast a ballot. (9)

The simple solution, one would think, is locating more polling places on reservations, or at least establishing satellite sites for registration and voting. But persuading local election officials to do so can be an even greater challenge--either because the officials are hostile or apathetic, or because they simply lack the resources to make voting more accessible.

For example, Native Americans living on reservations in Montana are often located great distances away from their county courthouses, where citizens are expected to vote. (10) Registering to vote or casting a ballot can require traveling over one hundred miles round-trip. (11) Montana permits counties to establish satellite election offices with in-person absentee voting and late voter registration, but historically, counties refused when tribes requested satellite offices. (12) Refusals sometimes took explicitly discriminatory forms, but more typically, counties responded that they lacked the time and resources to establish and run satellite offices. (13)

For a variety of reasons, Montana county officials repeatedly told tribes that they would not establish satellite offices unless a court ordered them to do so. (14) So in 2012, three tribes sued Montana. (13) After two years of litigation, the case settled on terms favorable to the tribes, and the following year, Montana's Secretary of State issued an election directive requiring every county with a reservation to establish satellite offices and to "work with Tribal government[s]" to determine the offices' locations, days, and hours of operation. (16) Though the outcome is a step forward for Native voters in Montana, it is also a story of the immense efforts and expenses required for tribes to secure the most basic rights for their members.

Native American communities are not only burdened by inaccessible polling locations but also by restrictive voter ID laws, strict registration requirements, and myriad other barriers. (17) Numerous states will not accept tribal-issued IDs or tribal-designated street addresses for purposes of registering or casting votes, (18) even when a concealed-carry permit would suffice. (19)

Advocacy around Native American voter suppression typically occurs within or parallel to broader conversations about voting rights and discrimination. Native people are recognized as one of several demographic groups disproportionately affected by efforts to deny and dilute political power. Seldom highlighted, however, is the fact that Native voter suppression amounts to more than denying and diluting the rights of individual Native Americans. It also denies and dilutes the sovereign power of Native Nations.

This Note proposes a new framework for combatting the specific harms inflicted by Native voter suppression. Building on decades of critical race and critical legal theory, (20) recent scholarship has increasingly recognized that rightsbased paradigms are not a panacea for addressing minority suppression. (21) The prevailing civil-rights model--challenging subordination by asserting traditional legal rights in court--has proven valuable, but it falls short of remedying the underlying economic and political conditions that cause subordination in the first place. (22) Power, not just rights, is often necessary to combat subordination. (23) Framing Native voter suppression as a matter of individual rights alone also obscures how it denigrates tribal sovereignty. Historically, the promise of enfranchisement was used to pressure Native Americans to renounce their tribal membership, culture, and lands. (24) Today, voting restrictions continue to threaten tribal sovereignty, such as when states and localities reject tribal-issued IDs and interfere with tribes' organization of their own political communities. (25)

Practical considerations about the state of voting-rights law also support moving beyond an individual-rights framework. The VRA altered the course of American history and political life and remains one of the greatest achievements of the civil-rights movement. But doctrinal developments in the past decade have blunted the VPvA's force, prompting scholars and activists to acknowledge that the traditional antidiscrimination model no longer adequately safeguards the vote. (26) Although voting-rights advocates have pushed Congress to pass new legislation such as the John Lewis Voting Rights Advancement Act and the For the People Act, (27) most meaningful voting-rights reform has slim prospects of making it through today's divided Congress. (28) And even if Congress were to successfully enact additional voter protections based on a civil-rights paradigm, it remains uncertain if and how courts would enforce them. (29) In sum, new legislation modeled on the VRA seems unlikely to surmount the inevitable political obstacles and constitutional challenges in today's political and judicial climate.

This Note proposes new legislation--and, more fundamentally, a new jurisprudential theory--to empower Native Nations in federal elections. The federal government has long recognized that it has a trust relationship with tribes, which includes a substantive responsibility to protect tribal sovereignty. (30) To fulfill that obligation, Congress should require state and local election officials to negotiate with tribes toward the formation of tribal-state compacts governing federal election administration in Indian Country. Like the county commissioners in Montana, election officials would have a legal obligation to work with tribal governments in administering elections. Congress could set aside funds to subsidize the cost of these efforts, and it could provide an administrative avenue for enforcement to save tribes from further litigation. This framework would significantly reduce the administrative burden that tribes currently endure when seeking collaboration with counties, filling gaps left by delinquent or underresourced election officials, and challenging unlawful voting restrictions in court. (31) While tribes could waive participation, the proposed legislation would give them the opportunity to exercise more power and expend fewer resources in facilitating elections with enormous implications for tribal lands, services, and governmental status.

Part I provides background on the antidiscrimination model underlying voting-rights advocacy and its growing inadequacy for confronting voter suppression. Part II analyzes Native American disenfranchisement from a sovereignty lens, framing election administration as an exercise of tribal self-government and disenfranchisement as a denial of not only individual rights but also sovereign power. From this perspective, the federal government has a duty to enhance tribal sovereign power in federal election administration as part of its trust obligation to tribes. Finally, Part III proposes a legislative scheme for actualizing Native voting power through tribal-state compacts.


    The predominant antidiscrimination model underlying voter-protection efforts took off with enormous success during the civil-rights era and has steadily eroded in the decade since Shelby County v. Holder. (32) After detailing the model's rise and decline, this Part describes ongoing efforts to reinvigorate voting rights and the practical and normative barriers facing rights-based reform.

    1. The Rise and Decline of the VRA

      The antidiscrimination model of voting rights is aimed at eradicating racial discrimination from the political process. (33) This model, embodied by...

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