Slammin’ Judges, Gunslingers—and Stunning Native Voting-Rights Wins

This article first appeared on Indian Country Today Media Network in February 2014. For more on the cases, click on the “voting rights” link at right.

Native voting-rights advocates scored three successes in three cities on one day—January 22, 2014. Two were in Montana, and a third was in South Dakota. That morning in a federal courtroom in Great Falls, Montana, the Wolf Point School District acknowledged before U.S. Magistrate Judge Keith Strong that its school-board electoral districts are malapportioned, violating Native voters’ constitutional rights.

The school district serves children from the Fort Peck Indian Reservation. Currently, each board member from the mostly non-Native part of town represents 143 people, while each member from the mainly Native area represents 841 people. As a result of shutting out Native parents, studies have shown, Fort Peck kids have received an appalling education for decades.

The Fort Peck plaintiffs were represented by the American Civil Liberties Union. “You could say things went well for us,” opined Jim Taylor, Montana ACLU’s legal director.

No question, progress was made,” said co-counsel Laughlin McDonald, director emeritus of the ACLU’s Voting Rights Project. He credited “the Voting Rights Act and increased awareness of the importance of equal participation.”

Now Jackson et al v. the Board of Trustees of Wolf Point School District moves into the remedy phase, according to McDonald. This might include redrawing the electoral districts, changing the school board’s size and “bailing in” the board under the Voting Rights Act. The last would put the board under ongoing Justice Department scrutiny.

“We’ll meet with the other side and pursue mediation,” said McDonald. “If we can’t agree by February 21, we’ll have another hearing on February 24, and the court will decide.” For the court’s final order, go here.

That afternoon, over in Billings, Montana, U.S. District Judge Donald Molloy had a burr under his saddle even before he opened a preliminary hearing for voting-rights case Wandering Medicine v. McCulloch. The lawsuit was brought in 2012 by tribal members who want early-voting offices on their reservations. The offices would give them the same number of days to register and vote as other Montana residents.

State and county officials oppose this. Their side seemed triumphant until the first judge hearing the case hung up his robes after revelations that he’d sent hundreds of racially and sexually charged emails. Judge Richard Cebull’s 2012 decision denying the early-voting offices was vacated by the Ninth Circuit Court of Appeals in October 2013, Judge Molloy took over, and everyone was back to square one.

The state and county officials petitioned Judge Molloy to stop the Native plaintiffs from continuing to use David Bradley Olsen as their pro bono attorney, claiming he was overly aggressive. Olsen is an award-winning lawyer from Henson & Efron, a large Minnesota firm that he and co-counsel Steven Sandven, of Sioux Falls, told the judge is able to handle the research required by a complex case like Wandering Medicine; Olsen was also one of the attorneys who argued before the Ninth Circuit when it vacated Cebull’s decision. Keeping Olsen out of Montana probably seemed like a good idea.

Judge Molloy set a hearing for January 22, listened to the officials’ legal team defending their claims about Olsen, then dismissed them, calling them “vexatious” and “frivolous” and warning “this is not a very good way to start off with me.” However, the judge also cautioned Olsen that “every gunslinger that comes to town thinks he’s the toughest one, but check your guns at the border and do your job as a lawyer, and we’ll all [be] able to deal on the merits of what I think is a very interesting case.” He brought down his gavel and ended the hearing.

Lead plaintiff Mark Wandering Medicine, who’s Northern Cheyenne, was pleased. “It felt like we’re finally on an equal footing, with a judge who wants to stick to the facts and the law. He has given us what we always wanted, equal respect, and now the case will progress.”


This article was written with support from the George Polk Center for Investigative Reporting.

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