This article first appeared in Indian Country Today in October 2013.
“May it please the court, Erin Flynn on behalf of the United States.” So began the Justice Department’s presentation in a landmark Native voting-rights lawsuit. The Ninth Circuit Court of Appeals, sitting in Portland, Oregon, heard oral arguments in the suit, Wandering Medicine v. McCulloch, on October 10.
The appeals court’s decision, upcoming in the next few months, will turn on whether a Montana district judge misread Section 2 of the Voting Rights Act when he denied requests for satellite registration and early-voting offices on isolated Montana reservations. The local magistrate reasoned that Indians have been elected to office in the state, so Indian voters’ lack of equal rights—which he readily acknowledged—was immaterial.
|Lead plaintiff Mark Wandering Medicine, center, and supporters|
Commanding and concise, DOJ attorney Flynn made her point and drove it home. The district court erred in requiring Native plaintiffs to show they had no opportunity whatsoever to elect representatives of their choice: “The plain text of the Voting Rights Act’s Section 2 requires only that the plaintiffs show less opportunity.”
The district judge’s reading of the VRA? “Completely incorrect,” said Flynn. Judge William Fletcher, one of three hearing the case, said he was inclined to agree.
|From left, Hawk and Barb and OJ Semans|
|Rodgers and Hawk|
“When Erin Flynn introduced herself, I was thrilled,” said Blackfeet tribal member Tom Rodgers, an advocate for Native Americans and whistleblower in the Jack Abramoff scandal. “The United States is on our side.”
It hasn’t always felt that way. The plaintiffs come from three remote, impoverished Montana reservations—Northern Cheyenne, Crow and Fort Belknap—where prospective voters face round trips as long as 180 miles across rugged terrain to the bordertowns where they must register. Many struggle to find a vehicle and gas money for the journey. To eliminate these barriers, each tribe requested one satellite office.
|From left, Judges Fletcher, Silverman and Callahan|
At another point, Frankenstein termed “academic” the appeals panel’s scrutiny of the lower court’s interpretation of the VRA. This earned her a rebuke from Callahan: “When judges ask questions, it’s not helpful to deflect them.” At press time, Frankenstein had not responded to a request for comments on the hearing.
|From left, Dosset and Healy|
Semans speculated that the appeals judges would send the case back to the lower court for a do-over. Four Directions consultant Bret Healy hoped the panel would simultaneously clarify the VRA: “It would save judicial time and effort.”
The hearing drew distinguished onlookers to Portland’s landmarked Pioneer Courthouse. The audience seated in the second-floor courtroom, with its gleaming woodwork and graceful architectural details, included Wandering Medicine and his wife, Ilo; McCulloch; and John Dosset, general counsel for the National Congress of American Indians, which submitted an amicus brief on the plaintiffs’ behalf. Joining them were Hawk, Rodgers, Healy and Barb and OJ Semans. Also in Portland were councilmen James Diaz and Kenneth McDarment of Tule River Indian Tribe, one of several that supported the lawsuit financially.
|From left, Wandering Medicine, plaintiffs' attorneys Olsen and Sandven|
He compared the lawsuit’s progress to his people’s flight from captivity in Nebraska during the winter of 1878–79, facing bitter cold, starvation and death to return home to Montana. “Back then, thanks to the wishes of a greater force, our ancestors succeeded against great odds to preserve our way of life. Securing our voting rights will also be good for us.” And it will be good for America, he said.
“Survival,” said Wandering Medicine, “depends on sharing.”
This article was written with support from the George Polk Center for Investigative Reporting. c. Stephanie Woodard. Photographs by Joseph Zummo.