Justice Department Declares Indian Vote Denial "Completely Incorrect"

This article first appeared in Indian Country Today in October 2013.

Native voting-rights plaintiff Mark Wandering Medicine, center, and supporters
“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, in early October.

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.

Attorney Flynn
“The district judge held that as long as Indians get to vote at all, what’s the problem,” said attorney Steven Sandven, of Sioux Falls, counsel for the plaintiffs, along with David Bradley Olsen, of Henson Efron, in Minneapolis. “The law needs to be clarified.”

The Department of Justice agreed, submitting a statement of interest and an amicus brief and even joining the appeal’s oral arguments—a rare and significant event, said plaintiffs’ attorney David Bradley Olsen, of Henson & Efron, in Minneapolis.

Commanding and concise, DOJ attorney Flynn made her point and drove it home. The district court erred in requiring lead plaintiff Mark Wandering Medicine, who is Northern Cheyenne, along with 15 other Montana Natives 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
The appeals court’s ruling will directly affect tribes in Ninth Circuit states—Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, said OJ Semans, the Rosebud Sioux co-director of Four Directions, which helped Montana tribes request the offices and organize and pay for the lawsuit. “It could also open the door for any minority with circumstances similar to those in Montana. This is a defining moment for Indian country and all minorities.

Rodgers and Hawk
Michaelynn Hawk, Crow director of the grassroots group Indian People’s Action, called the lawsuit part of the sweep of history. “Indigenous people have been oppressed for so long, but we are stepping forward all over the globe. We will win. It’s inevitable.”

“When Erin Flynn introduced herself, I was thrilled,” said Blackfeet tribal member Tom Rodgers, a Native rights strategist and fundraiser who was the 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
Political participation will help Native people improve their lives, said Wandering Medicine, a Northern Cheyenne ceremonial leader and Vietnam veteran. “Why are the state and counties stopping us?” he asked. “All we want is equality. Everyone says we Indians have to get in step—better ourselves, move forward. Voting will let us do that.”

The lower court ruling emphasized the difficulties the counties claimed they’d face in opening satellite offices. “As practical matter, what would you have to do if you lost?” Judge Barry Silverman asked the county-defendants’ attorney, Sara Frankenstein, of Gunderson Palmer, in Rapid City. As Frankenstein explained the burdens of setting up a scanner and other equipment, Silverman interjected repeatedly, “Why is that a big deal?”

Attorney Frankenstein
He asked how many new election workers would be needed. “Three,” Frankenstein replied, one for each reservation—but they’d have to be certified. “Do they have to go to France for the training?” quipped Silverman, while Judge Consuelo Callahan noted that a year remained before the 2014 election in which to accomplish these things.

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
The lawsuit’s lead defendant is Montana secretary of state and top elections official Linda McCulloch, who contends she can’t order the offices opened so shouldn’t be part of the suit. Her chief legal counsel, Jorge Quintana, represented her.

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 tribes that supported the lawsuit financially.

From left, Wandering Medicine, plaintiffs' attorneys Olsen and Sandven
Afterward, sitting quietly in the pale autumn sunshine, Wandering Medicine was pleased. Before the hearing, in another part of town, he had presided over a blessing for the day. “It went well for us,” he said. 

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.”

[Update: In November 2013, the Ninth Circuit appeals panel vacated the lower court decision and sent the case back to Montana for a new hearing before a new judge.]

This article was written with support from the George Polk Center for Investigative Reporting. c. Stephanie Woodard. Photographs by Joseph Zummo.

The Long and Winding Road

This article first appeared in Indian Country Today in October 2013. 





winter storm struck Montana shortly before the October 10 appeals-court hearing for the voting-rights lawsuit Wandering Medicine v. McCulloch. Snow, hail, lightning and high winds closed roads and made obvious why Montana Indians were asking the Ninth Circuit Court of Appeals to help them obtain satellite voting offices for their reservations—something a lower court denied last year.

Even in good weather, the lawsuit’s lead plaintiff, Mark Wandering Medicine, and his Northern Cheyenne neighbors have tough time registering to vote. They travel as many as 180 miles over mountains and across prairies to the county seats where this, and early voting, may be done. Two other tribes involved in the lawsuit—Crow and Fort Belknap—face similar obstacles. When roads are treacherous, as they may be during the fall election season, their trips are perilous indeed.

On the eve of the appeals-court hearing, in Portland, Oregon, ICTMN talked to Wandering Medicine, shown below, about what the lawsuit means to his people. He has gone the distance for them, and for his country—fighting in Vietnam, becoming a ceremonial man and now spearheading the voting-rights struggle. If he has his way, his people’s road will be cleared, to the ballot box and to self-sufficiency.

How did you become lead plaintiff?
Early in 2012, OJ Semans [the Rosebud Sioux civil-rights leader helping Montana tribes with voting issues] came to talk to us. The Northern Cheyenne who agreed to participate suggested me as lead plaintiff. As I thought about this, I remembered a story from 1878, when our ancestors were confined in Nebraska’s Fort Robinson. After Little Wolf expressed doubts about a planned break-out for Montana, a ceremonial man told him that leaders can’t hesitate—they must decide, then act on the people’s behalf. “You’ll turn around and see them following you,” he told Little Wolf.

What are you asking for?
Equality. Our constitutional rights. There’s a vacuum—lack of voting access—that prevents us from participating politically and improving our situation. Isn’t that what all Americans want?

Most Wandering Medicine v. McCulloch plaintiffs are veterans. Why?
Northern Cheyenne has one of the nation’s very highest rates of military service. We veterans choose to be patriots, to fight for our country. After we get back, no one looks at us. In Arizona, I met veterans living under a bridge, some in wheelchairs, dirty, unshaven. At the VA hospital, I see soldiers back from Iraq and Afghanistan who are without arms or legs, suffering from PTSD. All were once whole. They would have been productive citizens and now have trouble accessing veterans’ benefits, accessing the ballot box. I talked to Senator John McCain at a conference, and he agreed we should fight for our voting rights. It’s our chance to fix these problems.

Are you comfortable with non-Indian justice deciding the lawsuit?
I’m a trained paralegal. I like American jurisprudence and enjoy seeing professionals use language skillfully to argue on behalf of clients. Of course, when making decisions, the American system often considers revenue and benefits to greater society, in addition to judicial precedents. In our traditional system, we go to a higher power. When faced with great controversy, we ask our ancestors for guidance and invoke the Creator. Our decisions are based on our values, not on financial considerations.

How do ceremonies figure in, including the one you’ll conduct tomorrow before the appeals hearing?
They have to do with everything there is and are the foundation of who we were, are and will be.


This article was written with support from the George Polk Center for Investigative Reporting. Photographs by Stephanie Woodard. c. Stephanie Woodard. 

Standing Rock Sioux Move to Rescue Children, Accuse State of Genocide

This article first appeared in Indian Country Today in October 2013. 









Citing the 1987 Proxmire Act, which enables the United States to prosecute acts of genocide, the Standing Rock Sioux Tribe has asked the federal government to file suit against the state of South Dakota for crimes against tribal children. The tribe’s homeland, shown above, is in the prairies and badlands of North and South Dakota; one of its most revered leaders was Sitting Bull, who is said to have prayed Native forces to victory at the Battle of the Little Bighorn.

Standing Rock’s tribal council urged the United States to take action in a September 17 resolution claiming that South Dakota has been taking its children into care and adopting them out of the tribe illegally, in violation of the Indian Child Welfare Act. The resolution was passed the day after a child-welfare advocate informed the council that a young tribal member whom the state’s Department of Social Services (DSS) had placed with a white adoptive couple was homeless on the streets of Aberdeen, South Dakota.

The advocate, Shirley Schwab, recalled tracking down the 18-year-old. “When she came into the Burger King where we’d agreed to meet, I saw that her life had been reduced to what she could fit into a small blue duffel bag. No driver’s license, no money, no cell phone, little more than the clothes on her back.”

“When she turned 18, she exercised her right to live on her own,” said the teen’s adoptive mother, Wendy Larson Mette. “As far as I knew, she was living with friends, going to school.”

Schwab said a fellow Aberdeen resident had contacted her about the teen’s plight because of Schwab’s earlier dramatic attempt to rescue the teen and her siblings, which resulted in a state retaliatory prosecution against Schwab and an attorney. 

Public court records show that in 2010, the teen and her siblings reported that their adoptive father, Richard Mette, had sexually and physically abused them for more than a decade. A deputy state’s attorney initiated a law-enforcement investigation. Police visited Richard and Wendy Larson Mette’s house and found sex toys and stacks of pornographic magazines and videotapes in bedrooms and common areas. The children were moved to another home. Schwab became their court-appointed special advocate.

DSS appears to have been long aware that this was a problem household. As early as 2001, Richard and Wendy signed an agreement, now a court document, with DSS. In the agreement, the couple, who are divorced, promised DSS officials to lock up their pornography and stop “swatting, spanking, kicking and tickling” the foster children placed with them. DSS later allowed the couple to adopt most of the children.

When asked if she believed her children had been sexually abused, Larson Mette said, “I fully believe and support my children in this accusation.” She said she found her ex-husband’s treatment of the children “horrifying,” but said that over the years, she had never noticed any indications of the sexual abuse, including related injuries or behavioral changes: “What are perceived to be the obvious signs were not there. They had great attendance in school.”

Larson Mette called the 2010 police report accurate in terms of “room location or quantity” of pornography, but claimed that over the years she had personally seen only some of the material.

Court records and local media reports show that South Dakota cut a deal with the father, who is now serving the relatively light sentence of 15 years for child rape. The state dropped cruelty charges against Larson Mette, and despite allegations that she had tolerated the sexual abuse, returned the children to her.

The state then undertook to discredit publicly the children and their advocates. This included prosecuting Schwab and the deputy state’s attorney, who were fully acquitted at trial. Court documents and sworn testimony show state criminal investigators took the teen and her younger siblings to a basement interrogation room in order to get them to recant the abuse claims. The children were interrogated individually, without an adult present on their behalf. They wept and said they were frightened, but none recanted.

“When I met the 18-year-old and saw what her life had become after such trauma, I was devastated,” said Schwab. “I could hardly breathe.”

Within a few days of Schwab contacting Standing Rock, the tribe had flown the teen to safety with tribal kin out of state. “Our chairman said, ‘She’s our relative, get the plane ticket now,’” recalled tribal councilwoman Phyllis Young, who added that adoptive and foster parents have been known to turn children away after they turn 18 and government subsidies end.

Young said that three Standing Rock children remain in the Larson Mette home, and the tribe is very concerned about their safety; as a result, it has sued for custody. The councilwoman noted that in recent years Standing Rock children have been victims in notorious and widely reported South Dakota cases involving sexual abuse by white adoptive fathers, all of whom are serving time.

“If they file, I will do whatever is necessary,” said Larson Mette. “My children are happy. I love them, they love me. We are trying desperately to put our lives back together and move forward.” She called that a “fair” representation of their situation.

In addition to moving to protect young tribal members, Standing Rock has requested that the South and North Dakota Congressional delegations hold hearings on Indian child welfare. The tribe has also contacted the United Nations about submitting material for the United States’s upcoming human-rights review.

Importantly, the tribe is working with the federal government to develop its own child-welfare infrastructure. This will help solve a problem that tribes and Indian-child-welfare advocates have long decried—South Dakota’s habit of taking Native children into custody and placing them in white households and white-run group homes, thereby undermining tribal culture and sovereignty. The Oglala and Rosebud Sioux tribes and the American Civil Liberties Union recently sued the state in a related matter; to read about the lawsuit, go here

“This all epitomizes the state of South Dakota’s total disregard for Native children,” said Schwab.

Neither South Dakota’s attorney general nor DSS director replied to requests for comments on any of these matters.

“The language of the Standing Rock tribal council resolution is both specific and global,” said Young. “We act on behalf of this teen and her siblings, and for all Native children who have been taken from their tribal communities.” The Proxmire Act includes reparations, she said, and the tribe wants the children’s reparations to include lifelong therapy for the abuse they have suffered.

“What is happening to our children is like war crimes,” Young continued. “We heard terrible things at hearings we just held at Standing Rock. Over the years, many Indian women have asked me to help get their children back. Some of our children the state has in its custody right now are Sitting Bull descendents. This has historic dimensions. We at Standing Rock are taking this to the limit.”

Photograph by Stephanie Woodard. c. Stephanie Woodard.

“He was my only son”: Fort Peck mother calls for Congressional inquiry

This article first appeared in Indian Country Today in November 2013. 

The Montana Supreme Court has dismissed the wrongful-death lawsuit that Fort Peck tribal councilwoman Roxanne Gourneau filed against her local school board after her teenage son’s suicide in 2010. Gourneau, shown right, talked to ICTMN about her journey of the last three years and why she thinks Congress needs to scrutinize the schools her son attended in Wolf Point, a white-dominated town within the Fort Peck Indian Reservation, in northeastern Montana. She and her son paid a terrible price for the school district’s long-term dysfunction, she said.

On November 23, 2010, Dalton Gourneau, shown below, was a 17-year-old high school senior at Wolf Point High School. Just hours before he took his own life, the well-liked teen was kicked off the wrestling team, allegedly for possessing chewing tobacco. At the time, Dalton’s mother recalled, he felt he had a good shot at a state wrestling championship. Participating in an upcoming tournament meant the world to him. 

 After Dalton learned he’d lost his place on the team, he went to several school officials to plead his case, she said. When that proved unsuccessful, he wandered the school hallways for a while, walked home and shot himself.

A lower court hearing the wrongful-death suit found in favor of the school board in February 2013. Roxanne Gourneau, who has served as a tribal court judge, appealed to the state’s supreme court, which agreed with the lower court in October, ruling that school officials could not have foreseen the suicide and had no special custodial relationship with Dalton that made them liable for his death.

“To this day, they refuse any responsibility for what happened,” said Gourneau, who also has a daughter. “I can’t get it through my head. A dog would give its life to save a child. Where is their human decency?”

The Wolf Point School District has long been regarded as troubled. Gourneau’s assertions about it in the Q&A below—excessive discipline, Indian parents’ difficulties when interacting with the mostly non-Native faculty and administration, poor educational results and more—were echoed in interviews with additional tribal members, in a scathing 2003 investigative report and in another shocking research study in 2013.

The investigators in 2003 were journalist Christina Rose and Delores Huff, a California State University professor and Indian-education expert. The two visited the Wolf Point schools at the invitation of Fort Peck parents. Huff, who is Cherokee and a former school principal, described herself as “rip-roaring furious” at what she observed, including substandard teaching and no support for Native culture. “There was no expectation whatsoever of excellence,” said Huff.

The report led to U.S. Department of Education oversight. In documents recently obtained by ICTMN, it is clear that it took years of urging by DOE before the school began to record disciplinary referrals of Indian students more accurately and to identify teachers responsible for the most write-ups. Staffers got cultural-awareness and other training and, when necessary, reassignment. Students received various types of support when needed. The reforms appeared to produce some improvement, described by the department in 2008, when it ended the monitoring.

However, in 2013 researcher Melina Healey found the same issues that Rose and Huff had identified. Healey also established connections between the problems at Wolf Point and other reservation schools and the heartbreaking consequences for Native children, including suicide and incarceration. Healey’s paper, “The School-to-Prison Pipeline Tragedy on Montana’s American Indian Reservations,” is highly detailed, with many personal interviews among the statistical and legal analyses.

Wolf Point School District’s dismal 2012–2013 online report card corroborates many of Healey’s findings. Academic scores are generally very low, with the exception of high levels of learning readiness among children entering the system (from preschool and tribally run Head Start). Both students and faculty report low morale. The dropout/expulsion rate is high. Either little actually changed during the years of Education Department monitoring, or the Wolf Point schools reverted to old habits after 2008.

Just as the end of federal monitoring did not mean Wolf Point’s educational problems were over, the dismissal of the Gourneau lawsuit is not the end of the schools’ legal woes. Fort Peck community members and the American Civil Liberties Union have recently sued, claiming that gerrymandering of school-board voting districts favors non-Indian voters and violates the one-person-one-vote principle. Despite a largely Native population, only one Indian has been elected to the eight-member school board in 15 years, says the lawsuit.

According to Huff, this is not an unusual. White residents tend to find ways to control Indian-country school systems, she said. This means they are in charge of hiring at the schools, which are typically major employers in rural areas. Several tribal members said the Wolf Point staff included “dynasties” of farm families that had taught there for generations.

Here’s what Roxanne Gourneau, shown above right at her inauguration as a tribal councilwoman, told ICTMN.

Why did you file the lawsuit? 
I wanted everyone to see what we’ve endured for more than 50 years. Our children’s dreams have been killed in the schools, and we have been powerless to defend them. Promising students and talented athletes are bullied by teachers who do not understand them or the life they come from.

Have cultural-awareness and other types of training for Wolf Point staff led to improvements?
Some things are gone, such as the locked, padded room—the Room of Tears—in which students were isolated as a punishment. But I don’t know if hearing about round dancing and beadwork means anything to the white farmers and farmers’ wives who make up almost the entire teaching and administrative staff. They still don’t understand or care about the dynamics of the Indian students and the conditions they live in.

How do the children feel?
Our children feel threatened, inferior. As a tribe, we mandate that children stay in school until they graduate or turn 18. However, it’s so hard to insist they stay in schools that take every opportunity to crush them. Our children are held hostage. We’re in a situation of rolling trauma. It will take generations to fix this.

What about the parents?
When parents visit the school, they are treated like dirt, so they become discouraged. Some are resigned to thinking that at least their children get breakfast and lunch at school. They’ve given up hope that they’ll develop proficiency in any subject matter. They say, “at least they can eat.” You can see that, in relation to the schools, some of us haven’t graduated from the first tier of psychologist Abraham Maslow’s hierarchy of needs—food, water and other basics of survival.

After Dalton’s death, did the school reach out to you?
Nothing, not even a letter. If they had called me or any of his emergency contacts, Dalton would be alive today. In court, they twisted the beauty of my son so they would win. They said he had write-ups, but most Indian students do. That wasn’t who Dalton was. No one else in his family or community had such issues with him. This has all been very difficult for me, so emotionally draining. I grieve deeply. He was my only son.

You say you want a Congressional investigation. Anything else?
I want our schools to be tribally controlled so our kids can aspire to real skills and a better life. Our council has just formed an education committee, to make this a priority for the youth of today. We have educated people, college graduates, who can handle this. We are standing up for our children. We don’t want any more of them to inherit the pain.

The Wolf Point schools make a conscious choice not to educate our children. The low academic scores, the extreme punishments, the disregard for the Indian community and culture have always been in plain view. None of this has ever been secret. I ask you, should this exist in the 21st century?

My son and I paid the ultimate price for this situation. And they got away with it. Or did they?


This article was written with support from the George Polk Center for Investigative Reporting. c. Stephanie Woodard. Photographs courtesy Roxanne Gourneau.

Montana School District Charged with Voting Rights Violations

This article first appeared in Indian Country Today in October 2013.

The American Civil Liberties Union has filed a lawsuit against the Wolf Point School District, which has a predominantly Native student population, drawn from the surrounding Fort Peck Indian Reservation, in northeastern Montana. The suit argues that school board districts favor non-Native voters and should be redrawn.

Wolf Point is the largest community on the reservation and has a two-part school district. The predominantly non-Native portion, with 430 residents, elects three members to the eight-member school board of trustees. The 4,205 residents of the predominantly Native American portion—nearly 10 times as many people—elect five members. That means one board member from the mostly white area represents 143 residents, while board members from the mostly Native area each represent 841 people, according to the suit, Jackson et al v. Wolf Point School District.

This imbalance violates the one-person-one-vote principle, said Montana ACLU legal director and plaintiffs’ co-counsel Jon Ellingson, shown second from left above with, left to right, plaintiffs Bill Whitehead, Lanette Clark and Ron Jackson and Jim Taylor, also of the Montana ACLU. The lawsuitfiled in federal district court in Great Falls, Montana, asks for enforcement of equal rights guaranteed by the U.S. Constitution, as well as by Section 2 of the Voting Rights Act.

The suit also invokes Section 3 of the VRA and asks the court to “bail in” the school district and subject it to Section 5 preclearance. If ordered to submit future redistricting plans and other election procedures to the court, the district would have to prove in each instance that its practices were not discriminatory, says the complaint.

Though the U.S. Supreme Court struck down the VRA’s Section 4 in June and sent an existing list of preclearing jurisdictions back to Congress for retooling, the high court left the rest of the law intact. That includes Section 3, which provides an alternate way to require specific jurisdictions to provide this type of accountability.

The unequal representation in Wolf Point has profound effects on students, who have few Native teachers, counselors and others to guide them and provide role models, according to Ellingson. “For 15 years, the school’s board of trustees and other authority figures have been almost exclusively white. The children see Native employees who are mostly support staff.” As a result, said Ellingson, the school does not promote Native children’s culture and aspirations.

In 2003, the U.S. Department of Education’s civil rights office investigated the school, according to a Helana newspaper. This followed years of activism by Fort Peck tribal member Iris Allrunner and others and a report to the agency on a visit to the school by Indian-education advocate Christine Rose. The agency heard parent allegations ranging from overprescribing of Ritalin and use of a locked, padded isolation room for Indian students to sexual abuse and incidents of racially charged cruelty by white students and staff.

U.S. News & World Report 2013 education ratings show an underperforming school, with reading and math scores below the state average. Enrollment figures provided by the district data specialist for the school year 2012–13 show Native children making up a smaller proportion of the student body as they age: 72 percent of junior high students were Native, while just 48.8 percent of high school students were—a difference of just over 23 percent. Meanwhile, white children made up 10.7 percent of the junior high and 27.8 percent of the high school. The rest of the children were from other population groups or had been identified by their parents as being of two or more races.

A measure of the Wolf Point elite’s blind spot for Native concerns can be found in the history section of the town’s website. In the early 1900s, the area was little more than a railroad station and a collection of settlers who had “poured into” Montana for cheap Indian land, according to the site. The web page continues: “Only one more thing was needed. Wolf Point was on an Indian reservation—a huge reservation with very few Indians…In the early summer of 1914, the date everyone was waiting for arrived—the official opening of the Fort Peck Reservation to homesteading.

At press time, officials of the school district and board of trustees had not returned calls requesting comments on the various issues the suit raises. Their lawyers asked a federal court to dismiss the suit; he refused, as is explained in a story here.

This article was written with support from the George Polk Center for Investigative Reporting. c. Stephanie Woodard. Photograph courtesy Fort Peck Journal. 

7 Questions for Laughlin McDonald, of the ACLU

This article first appeared in Indian Country Today in 2013.


Laughlin McDonald
Last month, Laughlin McDonald, director emeritus of the American Civil Liberties Union’s Voting Rights Project, filed his 14th Native civil-rights lawsuit. The plaintiffs are Fort Peck tribal members who want equal representation in school board elections in Wolf Point, Montana, where many of their children attend school.

Thirty years ago, McDonald’s first Indian-country lawsuit got underway just a few hundred miles away. In 1983, in Windy Boy v. County of Big Horn, Montana, McDonald and Montana attorney Jeffrey Renz represented Crow and Northern Cheyenne voters who wanted to elect candidates of their choice to the county commission and school board. In between, the legendary civil-rights attorney participated in Native enfranchisement cases throughout the West, testified before Congress multiple times and wrote several books and numerous articles.

A U.S. Army veteran and University of Virginia Law School graduate, McDonald became a staff attorney with the ACLU’s Southern Regional Office in 1966, taking over as director in 1972. Under his stewardship, the office’s Voting Rights Project has won many landmark cases in the South and around the country. It is one of the nation’s largest and most influential nonprofits litigating for civil rights.

Here’s what McDonald says has, and hasn’t, changed for Native voters over the past 30 years:

1. Your 1983 and 2013 voting-rights lawsuits have striking similarities. In other recent cases, jurisdictions you sued years ago are defendants once again. Are Native voting rights running in place?

There’s been progress—no doubt about that. Lawsuits have resulted in the creation of districts that allow Indian people to elect representatives of their choice. Tribal members have become aware of the value of participating in non-tribal elections. If you don’t vote, you’re not only denied the benefits of the government or school board, but you become its victim.

When we filed the 1983 lawsuit, no tribal member had ever been elected to Big Horn County’s commission. After we won, redistricting meant an Indian was elected. The Indian population has increased since then, and tribal members now hold several county positions. There’s been enormous change, here and elsewhere.

2. Increases in tribal populations mean a growing fear of what a state official recently called “unleashing” the Native vote. Is white backlash inevitable?

There certainly are recent examples. Right-wing organizations have tried to abolish the reservations and do away with Indians’ status. A white organization filed a lawsuit to get precincts closed on the Crow and Northern Cheyenne reservations, claiming fraud had occurred; the suit was subsequently dismissed by the plaintiffs

3. Why are unproven allegations of Indian election fraud so common?

Some people don’t want to see Indians vote, and it’s a good pretext.

4. The majority opinion in Shelby v. Holder pronounced about the country as a whole but never mentioned Native people. Are they the forgotten voters?

Indian country is a blank for most non-Native people, whether they live far from a reservation or right next door. Many have little knowledge of the concept of sovereignty, or even that Indians are U.S. citizens. In a case in Fremont County, Wyoming, I took a deposition from a county commissioner who had driven through the Wind River reservation, but had never stopped, never visited, never gotten to know tribal members. She was embarrassed to realize she knew nothing about many people in her district—and she wasn’t the only county official in this position.

5. In your latest lawsuit, you ask the court to “bail in” Wolf Point’s school district under the Voting Rights Act’s Section 3, so its election practices come under Justice Department scrutiny. Will bail-ins receive new emphasis in voting-rights litigation?

Bail-in has been applied in the past. New Mexico, Arkansas and jurisdictions in seven other states have been bailed in. Going forward, when Congress responds to the Supreme Court’s Shelby v. Holder decision, it should expand the bail-in’s reach, so it applies to not just 14th- and 15th-amendment violations, which require proof of discriminatory intent, but any federal voting-rights statute that protects racial and language minorities. VRA Section 2 violations, for example, require proof of discriminatory effect, which is easier to do.

Congress can expand the bail-in while reconsidering the coverage formula that the Supreme Court struck down and finding more ways to strengthen Section 2. The Senate and House have already held hearings in response to Shelby. We have to get Congress to do the right thing.

6. Why are voting rights so elusive in a country that calls itself a great democracy?

We like to think this country was founded on concepts of democracy but it was actually founded on principles of aristocracy, with voting originally restricted to white male property owners over age 21. After the Civil War, the 14th and 15th amendments enfranchised African Americans. The 19th amendment gave women the right to vote in 1920, and the 1924 Indian Citizenship Act enfranchised all Native people.

However, those in control have shown a great willingness to adopt a whole range of discriminatory measures so they can stay in charge. The techniques devised in the South after Reconstruction, and elsewhere, to keep minorities out of the polling places have ranged from literacy tests and poll taxes to whites-only primaries and outright intimidation. The 1965 Voting Rights Act addressed this, but even so, many states have passed new suppression measures. They have shortened early voting time, added restrictions to voter ID and more. These efforts accelerated after the Shelby decision.

So, as we at the Voting Rights Project file and win lawsuits, and as we offer amicus briefs and consultation for others’ cases, we see increased participation by minority voters on the one hand and efforts to stymie it on the other. It’s an ongoing process, with progress despite setbacks.

7. What have your Indian-country cases meant to you personally?

Developing friendship with tribal members, including those we’ve represented and witnesses, has opened up my world significantly. I’ve seen what they have gone through and continue to endure.


For more on McDonald’s work in Indian country, including an excellent summation of what he calls the whipsawing of federal Indian policy, look for his book, American Indians and the Fight for Equal Voting Rights (Oklahoma Press, 2010). This article is part of a series on Native voting rights that is supported by the George Polk Center for Investigative Reporting.

Navajo Nation and DOJ Scrutinize Border Towns

This first appeared in Indian Country Today in August 2013.

The Navajo Nation Human Rights Commission has completed a memorandum of understanding, or MOU, with the U.S. Department of Justice. Signed in July by commission chairperson Steven A. Darden, Navajo, and Justice Department officials, the MOU focuses on enforcement of tribal members’ federal civil rights in border towns surrounding the Navajo Nation.

The off-reservation municipalities lie in four states: Arizona, New Mexico, Colorado and Utah. Going forward, NNHRC and the Indian Working Group—a team of attorneys within the Justice Department’s Civil Rights Division—will share information and forward documented incidents in the towns to the proper authorities, said NNHRC executive director, Leonard Gorman, Navajo.

Prior to participating in this historic agreement, NNHRC held 25 hearings culminating in a 2010 report on border town discrimination. Like previous reports—including by the U.S. Civil Rights Commission—this one found rampant hostility towards Navajos. Hearing attendees reported unfair and hazardous employment practices, insensitive schools, denial of service in public places, predatory businesses, criminalization of spiritual traditions, tragic land losses and police brutality. Threaded through the grievances is a horrific litany of uninvestigated beatings and killings of Navajos.

The offenses occur in an economic context that finds some 70 percent of Navajo income spent in the border towns, according to NNHRC’s report. Yet, tribal members rarely benefit from jobs, skills training or other opportunities. The report concludes, “The human rights of the Navajo People will no longer be an impediment to change, but the impetus for change around us.”

In addition to the report and the MOU, NNHRC’s work with border towns generated the groundbreaking Border Town Mayors’ Summit. One Colorado mayor returned from the annual event to tell his local newspaper he heard experts speak on the challenges of a diverse community; he also learned about social problems, including drug and alcohol abuse, and law enforcement issues, such as racial profiling and dealing with street inebriates. “For me, it was a bit of a culture shock,” he told the reporter.

“We all, as human beings, aspire to better lives and livelihoods every day,” said Gorman. “The MOUs address the fundamentals of problems our people face in achieving that.” Gorman told ICTMN more about the commission’s work.

How did the federal MOU come about?
Since our office opened in 2008, we’ve made good friends and contacts and engaged with folks from federal agencies, including the Department of Justice. At the same time, we were creating MOUs with the border towns. We decided to do something similar with the federal government.

Is the Justice Department MOU the first of its kind?
Yes. It’s an example of self-determination and an aspect of our nation-to-nation relationship with the federal government. The Navajo Nation intends to look out for its people in the border towns, and this is a medium for that.

What changes have the border town MOUs produced?
Almost immediately upon engaging the mayors, they created their border town summit. These meetings and this engagement will not precipitate instantaneous change, but we are all beginning to talk. We are also planning cultural sensitivity training for law enforcement, with specific information about how and why Navajos do certain things.

NNHRC has a predatory auto sales project; how did this arise?
Numerous Navajos raised concerns about auto purchases in the border towns, including people driving away with a vehicle they’d been assured they had financing for, only to be later told the financing had fallen through and now they had to accept a higher interest rate. We engaged the dealers and their trade groups, which have protocols for complaints and understand the need for the customer to be happy.

Results?
Some cases are resolved; others are being evaluated. The best redress is usually from the dealer, because they don’t want to be exposed as engaging in unscrupulous practices. We’re also working with Autocap, a New Mexico service that provides mediation. Though complaints will likely be ongoing, we’re hopeful we’re coming to a close on this project. Our effort has been to define the problem as a human one—one human being taking advantage of another.

What are upcoming projects?
A very important issue is the language barrier Navajo people face in municipal and state courts. It’s a human rights issue—people have the right to understand a court proceeding in their preferred language. So, these courts must provide translation. We will also be working on treatment of Navajo citizens by law enforcement, violence against Native woman and gender preference issues.

Is the Justice Department MOU a template for other communities?
I’d hope other indigenous nations would engage the federal government in this manner.

In sum?
As human beings, we must learn respect each other more.


For NNHRC’s website, with useful information ranging from the border town report to what to do if pulled over by police, click here: http://www.nnhrc.navajo-nsn.gov/.