Going Postal: How All-Mail Voting Thwarts Navajo Voters

This story first appeared on In These Times magazine's Rural America site (RAITT) in August 2015. 

All-mail-in voting has arrived in the red-rock bluffs and canyons of San Juan County, Utah, which overlaps the Navajo Nation’s reservation. In 2014, the county sent voters mail-in ballots for the general election, while closing local precincts in the shadow of Red Mesa’s ruddy flat-topped butte; in Monument Valley, the fabled location for John Ford Westerns; and in other towns and hamlets. Just one polling place remained open, in the county seat, Monticello, in the predominantly white northern portion of the county. 
Also gone were 20-some election judges and translators who had provided voting help and federally mandated language assistance to non-English-speaking Navajos. One part-time official interpreter was left to cover about 8,000 square miles—an area nearly the size of Massachusetts.
As states and counties around the nation increasingly offer voters convenient ways to cast a ballot—early voting, in-person absentee voting, vote-by-mail—Native people find themselves shut out, according to an In These Times story, “The Missing Native Vote.” Since 2012, Natives have sued three times in federal court to obtain in-person absentee voting on reservations, claiming that offering this option only in distant, off-reservation county seats means they do not have voting rights that are equal to that of non-Natives. The Department of Justice has proposed legislation to remedy this problem, according to a Rural America In These Times article.
Language assistance is another hurdle for non-English-speaking Native voters. It’s required by the Voting Rights Act, but in practice may not be offered. In 2014, Alaska Natives won a court decision reaffirming their right to have the state give them election information in their own languages. As a result, Native voters in Alaska were credited with helping elect a Native lieutenant governor, protect the vast Bristol Bay region from mining and raise the state’s minimum wage.
This shows that securing voting rights lets Natives work to better their world, says OJ Semans, the Rosebud Sioux co-director of voting-rights group Four Directions. “If you don’t vote, you’re not at the table when all manner of decisions are made. Keeping us from the ballot box is a way of preventing us from being part of the body politic and improving our lives, our communities, and our economies.”
Ready to vote, but no ballot boxes
On Election Day, some Navajo voters in Red Mesa showed up at their old precinct location, says Herman Farley, president of Red Mesa Chapter, a Navajo Nation subdivision. Either they hadn’t heard about the vote-by-mail requirement, or they had heard but hadn’t received a ballot, Farley recalled. At that moment, the voters had two options. They could give up on participating in the election or drive the three-hour round trip to the county seat—assuming they had the gas money to do so. Meanwhile, voters left in the lurch in the Navajo Mountain community, in the remote southwestern corner of the county (shown above), faced a nine-hour round trip to Monticello.
When the dust cleared after the 2014 general election, the county’s official results showed that Red Mesa’s voter turnout (that is, the county’s figures for level of participation among voters it had deemed “active” via a mail-in process) was down. Red Mesa lost 15 percent turnout over 2006 and 6 percent over 2010, the most recent non-presidential contests. Red Mesa was among the five majority-Navajo precincts, out of seven, where election participation was lower than in 2006. The largest drop was 20 percent.
When compared to 2010, turnout for 2014 fell as much as 26 percent in four majority-Navajo precincts. In the other three, turnout rose between 16 and 20 percent—probably because voters there were interested in a local race, according to James Francom, a spokesperson for the San Juan County Clerk’s office.
Voting by mail was more consistently successful in majority-white areas, with 2014 election participation rising between 2 and 39 percent in 9 of 10 precincts over 2006 and (after two mostly white precincts were split) in 7 of 12 precincts over 2010 figures. Also in comparison to 2010, turnout held even in one more predominantly white precinct. Losses were generally minimal.
In the end, white voting increases appear to have been the force that pushed the county’s turnout up about 5 percent—from 59 percent in 2010 to 64 percent in 2014. This helped ensure that the three seats on the county commission—and its control over county resources—would remain occupied by two whites and one Native, even though the county is about evenly divided between the two population groups, according to both the U.S. Census and the Navajo Nation. The county has never had two Navajo commissioners, according to the Navajo Nation Human Rights Commission (NNHRC).
In a post-election wrap-up to the county commission on Nov. 17, 2014, then-county clerk and head elections official Norm Johnson speculated that voters in some Navajo precincts may have been unaccustomed to or nervous about the new system, lowering turnout. “They’re totally out of whack,” he said, adding, “We corrected anything that came to our attention, but if we didn’t know, we couldn’t fix it.”
When civil-rights attorney Maya Kane, of the law firm Maynes, Bradford, Shipps and Sheftel, set out to determine what had gone awry for San Juan County’s Navajo voters, she found plenty of leaks in the ballot pipeline.
Kane learned that impoverished Navajos may share P.O. boxes or use general delivery and worried that this lowered the likelihood that they received essential election communications, including voter-registration information and the ballot itself. “If anything was off about a voter’s registration—an incorrect address or middle initial, for example—it had to be corrected in order to receive a ballot,” Kane says.
Exacerbating these difficulties are the multi-hour round trips some Navajos make to area post offices to pick up their mail. As a result, Kane learned, they may go only every few weeks, cutting their chances of receiving election communications in time to register or vote.
Votes lost in the mail
After reservation voters mailed their ballots, the items sometimes took the scenic route. While inspecting 2014 election-related correspondence at the county clerk’s office, Kane found pieces with postal-service notations showing they had meandered to Monticello via other counties and even other states, arriving weeks or months after Election Day. Some items were postmarked at the facility where they were dropped off; others were postmarked at another post office down the line, possibly causing a ballot to miss the deadline.
In the precincts of Monticello and Blanding, where the bulk of San Juan County’s white voters live, ballots typically had one-day service in both directions, with postmarks reflecting the day they were mailed, according to Monticello postmistress Dorothy Cannon. “We know how important they are,” she says.
To Kane, reservation postal service seemed a world away from that experienced by most American voters, including those in Monticello and Blanding. “San Juan County’s Navajo voters have to rely on a complicated and inconsistent system,” she says. “This creates voting-rights disparities right out of the gate.”
Vote-by-mail systems are notoriously unreliable, according to Jean Schroedel, a political science professor at Claremont Graduate University, in California. In a 2014 paper, she analyzes recent scholarship showing ways the process can be derailed—when ballots don’t get through to voters or back to the election official, when ballots are disqualified by missing signatures and other errors that could have been corrected during precinct voting, and more. Slightly more than 20 percent of attempts to vote by mail fail, Schroedel writes.
According to county commissioner Phil Lyman, the county made special efforts to remedy potentially disqualifying mistakes. When Navajo ballots arrived with errors, the county’s interpreter took them to voters’ homes for correction—“even if that meant a 70-mile drive,” Lyman says.
Playing telephone
The shortfall in language assistance was another major factor in depressing Navajo turnout, according to Farley. “Some of our elders don’t speak or read English,” he says, adding that convoluted proposition language is especially problematic. According to NNHRC Executive Director Leonard Gorman, some voters mistook their English-only ballots for junk mail and discarded them.
The election materials did offer non-English-speakers a remedy. English-only print pieces and related Navajo-language radio ads directed them to contact the county via telephone or Internet. That’s a non-starter, according to Farley. “Don’t assume everyone [on the reservation] has Internet or phone,” he says.
Francom confirmed that the idea just doesn’t work. “We did radio ads telling them to call the county,” he says. “In most cases, that doesn’t happen, though. Most of them have someone who helps them with their mail, so they rely on them [to translate].”
The county’s part-time interpreter has criticized the dependence on family for language assistance, noting that English-language election terminology doesn’t translate easily into Navajo. To do his job, Navajo Liaison/Elections Coordinator Ed Tapaha uses a 60-page handbook compiled with the aid of fluent Navajo elders—a resource not provided to the public.
Lyman, on the other hand, describes family members as “very qualified” to translate and says this “allows [voters] a chance to discuss the ballot with someone they trust.”
The all-mail election “caught us by surprise,” according to Farley, who says it was implemented without consulting the Navajo Nation. “I’m sure hoping the county has learned it can’t ramrod this type of election change anymore.”
The election’s flaws may expose San Juan County to a lawsuit, according to prominent civil-rights attorney Laughlin McDonald, director emeritus of the American Civil Liberties Union’s Voting Rights Project. He notes that in 2010 a federal district court rejected mail-in voting as a substitute for precincts on a North Dakota reservation, finding that this was likely to limit access for Native voters there. There is also the matter of Section 203 of the Voting Rights Act, McDonald says: “[It] requires material relating to the electoral process, including ballots, to be provided in both English and the applicable minority language.”
Says Lyman, “The last election was a test case. We aren’t wedded to vote by mail if something shows us it was worse than what we had.” When asked whether he knew of papers such as Schroedel’s indicating that better-off, better-educated voters participate more readily in mail-in elections, he said it was the first he’d heard of that.
The Native fight for voting rights
San Juan County is no stranger to voting-rights complaints. It is one of the jurisdictions—states, counties, schools boards and more—that have fought scores of Native lawsuits since the passage of the Voting Rights Act in 1965, according to University of Utah political science professor Daniel McCool, writing in Native Vote: American Indians, the Voting Rights Act, and the Right to Vote. Under settlements negotiated in two Department of Justice lawsuits filed in the 1980s, San Juan County revamped its district structure to improve Navajo election participation and promised to provide language assistance. County elections were under DOJ oversight until 2002.
Nationwide, Natives are struggling for civil rights that are largely settled for other groups. Gaining citizenship in 1924 should have, but didn’t, guarantee suffrage, writes McCool, in Native Vote: “To achieve that, Indians would have to overcome a panoply of state laws, constitutional clauses, and court decisions that blocked the way.” After World War II, Native veterans accelerated the demand for equal rights. At the time, McCool reports, a Navajo vet said, “We went to Hell and back for what? For people back home in America to tell us we can’t vote?” Today, groups including NNHRC, the National Congress of American Indians’ Native Vote project, and the ACLU are still striving to ensure that Natives can cast a ballot and have it counted.
In 2012, San Juan County was back in court again. The Navajo Nation and individual plaintiffs sued the county, alleging that it had packed most of its tribal residents into one 95-percent-Navajo super-majority district. This prevents them from ever having a chance to elect a candidate of their choice to more than one of the three seats on the county commission, according to Gorman.
For its part, the county asked a judge to dismiss the suit, claiming it can’t change the districts because they were part of the DOJ settlement. In March 2015, the judge refused, reminding the county that the boundaries were established separately from that negotiation. (The suit has not yet gone to trial.)
Despite this positive development, Kane remains concerned. “Even if Navajos win the redistricting lawsuit, they still lose if mail-in voting and lack of language assistance prevent them from casting a ballot,” she says. “The Navajo Nation has spent about a million dollars so far on this lawsuit. How much more do we expect them to pay to put tribal members on a par with white people?”
Text c. Stephanie Woodard. Images courtesy RAITT.

In a Rare Move, the Justice Department Drafts a Bill of Its Own—to Ensure Native Voting Rights

This story first appeared on In These Times magazine's Rural America website (RAITT) in July 2015.

The Department of Justice has put its considerable muscle behind new draft legislation to ensure that American Indians and Alaska Natives have the same opportunities to vote as other Americans.
On May 21, the Justice Department announced the Tribal Equal Access to Voting Act. “I am calling on Congress to help remove the significant and unnecessary barriers that for too long have confronted American Indians and Alaska Natives attempting to cast their ballots,” said Attorney General Loretta E. Lynch.

With new Native-language ballots, new early-voting options, and vigorous GOTV (shown here in Togiak village), Election 2014 turnout was up throughout Native Alaska. As a result, indigenous people were credited with helping elect a Native lieutenant governor, protect the vast Bristol Bay region from mining, and increase the state's minimum wage.
It’s unusual for the Justice Department to propose legislation, says spokesperson Wyn Hornbuckle, and it’s “a measure of how important the department feels this issue is.” To move forward, the legislation will require sponsors in the House and Senate.
The act would place at least one election office in each tribal community that requests it, thus reducing the vast distances, often over forbidding terrain, that many Native voters face.
Here’s one example from the National Congress of American Indians (NCAI), which has praised the bill: Voters on the Duck Valley Reservation in Nevada must trek more than 200 miles round-trip to the polls in Elko.
Or, from “The Missing Native Vote,” my 2014 In These Times investigation into barriers to Native voting access: American Indians on three Montana reservations traveled two to three times farther than whites to get to the polls in their county courthouses—despite being far less likely to have a vehicle for the trip, or even sufficient gas money.
Some Alaska Natives must cross a river or mountain range to cast their ballots, notes Principal Deputy Assistant Attorney General Sam Hirsch.
“These are problems that would be unfathomable to suburban voters,” Hirsch says. “They’re blatantly unfair.”
The problem with the current system, according to Deputy Assistant Attorney General for Civil Rights Pamela Karlan, is that elections are for the most part run by state or local governments, which are also responsible for staffing polling places. Often,  tribes had to resort to expensive, protracted litigation to get the equal access guaranteed under the Voting Rights Act. The goal of the DOJ proposed bill is to set a clear federal guideline for where a polling place must be established, reducing the need for lawsuits.
“The Justice Department’s sponsorship definitely brings heightened awareness to the substantial [election] barriers that our people continue to experience,” says Nicole Borromeo, general counsel for the Alaska Federation of Natives. Last year, Borromeo, who is Athabascan from McGrath Native Village, was part of an intensive effort to bring early voting for the first time to more than 100 remote Native villages.
Some tribal leaders expressed doubts about some requirements in the legislation—for example, that tribes must request a polling place in order to get one—noting that no other people have to ask for their voting rights.
“Our rights should be automatic, like everyone else’s,” said William “Snuffy” Main, former president and Gros Ventre cultural leader at Fort Belknap Indian Reservation, in Montana. “Counties and states run elections, so they should be required to contact us and say, ‘Do you want an office? And where should we put it?’ ”
Main also wondered why the bill appears to shift a few federal-election functions, such as some pollworker training, from the states and counties to the tribes. The latter now handle only tribal-election activities. “These problems need to be fixed upfront,” he says. Hornbuckle, of the Justice Department, responded that the bill won't transfer responsibility to the tribes but rather will increase their role, something “which runs to the heart of the proposed legislation.” 
Other prominent Indian-country figures agreed that the draft is just a beginning. “This draft legislation will open up much-needed conversations between the tribes, states and federal government, which will probably improve it,” says OJ Semans, the Rosebud Sioux co-director of Four Directions, which has worked on voting rights for more than a decade in South Dakota, Montana, Nevada and Arizona.
The path to the proposed legislation has been a long one, beginning when indigenous people became citizens and voters in 1924, only to have states and counties erect obstacles. Some mandated that American Indians who wished to take part in non-tribal elections must first show they owned “white” houses and clothes, or had renounced their tribes. When protections of the 1965 Voting Rights Act were extended to Native people in 1975, South Dakota’s then-attorney general called Native voting rights an “absurdity” and told the state’s top voting official to drag her feet on implementation.
Despite scores of lawsuits by the American Civil Liberties Union, the Native American Rights Fund (NARF), the Justice Department and others, states and counties continue to hinder Native voters. In 2014, voters on the portion of Pine Ridge Reservation that overlaps Jackson County, South Dakota, had to sue for a satellite voting office that would give them access equal to that of white residents of the county. Also in 2014, the Justice Department stepped in to prevent a New Mexico county from eliminating election information in the Navajo and Keres (southern Pueblo) languages. In Alaska, NARF won a lawsuit that required the state to provide federally mandated language assistance and translated ballots to those who are fluent in Native languages, though not English.
Native people may be just under 2 percent of the U.S. population overall, according to the U.S. Census. However, they can have unexpected clout at the polls, due to the concentration of their population in a few states, such as South Dakota, which the Census tallies at about 10 percent Native, Montana, at 8 percent, and Alaska, at 19 percent.  
In 2014, access to early voting contributed to much higher turnouts among Alaska Natives than in the 2010 midterms. This, in turn, likely helped Alaska elect a Democratic governor and lieutenant governor (who is Native) and contributed to the huge margins of victory for initatives to protect the vast Bristol Bay region from mining and increase the state minimum wage. Nationwide, the numerous elected officials with strong Native support include Democratic Sens. Maria Cantwell (Washington), Heidi Heitkamp (North Dakota) and Jon Tester (Montana) and Republicans John McCain (Arizona) and Lisa Murkowski (Alaska). Though Native voters tend to vote Democratic—overwhelmingly so in many precincts—they cross the aisle for candidates who respond to their issues.
The proposed Tribal Equal Access to Voting Act is already drawing attention on Capitol Hill. Finding bipartisan backing is essential, according to NCAI’s general counsel, John Dossett. It is hard to tell how long the process will be, Dossett said, noting that it took several years to extend Violence Against Women Act coverage to Native women.
Sen. Heitkamp tells In These Times that she looks forward to taking up the bill. “For far too long, Native Americans have had their voices silenced at the voting booth,” she says. “Everyone in the United States should have the same right to vote, and they shouldn’t have to jump through hoops to do it.”
Heitkamp said she would work on the proposed legislation with fellow members of the Senate Committee on Indian Affairs, which includes Cantwell, Tester, Murkowski, McCain and others from states with significant Native populations. One committee member, Republican Steve Daines of Montana, responded to In These Times’ query about the proposal by pledging “to ensure that our tribes have equal rights under the law.”
A committee staffer noted that the draft bill has arrived and has not yet been officially introduced or scheduled for hearings. The Huffington Post reports that Tester will offer his own Native voting rights bill next month.
Natalie Landreth, a member of the Chickasaw Nation of Oklahoma and a staff attorney with the Native American Rights Fund, said NARF looked forward to working on the legislation with Congress and the Justice Department and would make suggestions to maximize its impact.
“As the saying goes, every journey of a thousand miles begins with a single step,” says Blackfeet tribal member and political strategist Tom Rodgers, of Carlyle Consulting, in Washington, D.C. “Is [the] draft bill perfect yet? No. But after we have all contributed to improving it, it could be the biggest game-changer in Native enfranchisement since we got the right to vote.”
Photo and text c. Stephanie Woodard.

South Dakota's Last Stand—Ballot Boxes, Red Herrings and Custer Envy

This story first appeared on Indian Country Today Media Network in May 2015. For an article on the filing of the suit in 2014, see Oglala VP: 'Our Civil Rights Are Being Violated.'

Jackson County, South Dakota, has dug in for a fight against Oglala Sioux plaintiffs who sued for a full-service satellite voting office on the portion of Pine Ridge Indian Reservation that overlaps the county. On May 11, Jackson County filed an answer to the Oglalas’ complaint.

The document mostly reiterated legal arguments that had been rebuffed by U.S. District Court Judge Karen Schreier 10 days earlier, when she refused to dismiss the lawsuit, Poor Bear v. The County of Jackson. In her opinion, the judge wrote that the plaintiffs might be able to prove “intentional discrimination,” a Fourteenth Amendment violation. Judge Schreier presided over another Oglala voting-rights suit, Brooks v. Gant, which in 2012 resulted in satellite voting for another part of Pine Ridge.

(Map caption: The main Jackson County elections office is in the mostly white-inhabited county seat Kadoka (blue circle). Residents of Pine Ridge Indian Reservation (below orange line) have sued for full-service satellite voting in Wanblee (orange circle). Whites make up 43.1 percent of the county’s population, say 2013 Census estimates; they hold four of five commission seats and run elections. Map courtesy Jackson County; town and reservation indications in larger map at top courtesy ICTMN.)
A prominent voting-rights attorney was skeptical about Jackson County’s chance of prevailing. “In an answer to a complaint, defendants almost always state all the possible defenses they may have, and it looks like the county has done that here,” said Laughlin McDonald, special counsel and director emeritus of the American Civil Liberties Union Voting Rights Project. “However, in light of Judge Schreier’s opinion and the facts of the case, it doesn’t look as though the defenses have any merit.
OJ Semans, Rosebud Sioux co-head of Four Directions voting-rights group, described his take on Jackson County’s long game. “The county defendants know they’ve lost this round, but they want to be modern-day Indian fighters and appeal this lawsuit all the way to the Supreme Court,” Semans said. “They’d rather spend hundreds of thousands of taxpayer dollars fighting equality than one thousand implementing it. They, like Custer, are on the wrong side of history.”
Brought by Oglala Nation vice president Tom Poor Bear (left) and others, the suit asks for a reservation federal-elections office that’s open for the same amount of time and offers the same services as polling places in other South Dakota communities. According to the plaintiffs, lack of personal and public transportation means reservation residents can’t get to the main elections office in the predominantly white county seat, Kadoka. This cuts them off from South Dakota’s in-person-absentee-voting and late-registration period, which starts 46 days before national elections; and that, the plaintiffs allege, means unequal access and violations of the Voting Rights Act and the Constitution.
Jackson County initially shot down the reservation satellite office for, among other reasons, an alleged lack of money. However, in the May 11 statement, the county admitted it now knows it has federal Help America Vote Act funding: “At the time this admission is made…Defendants are aware of the availability of HAVA funding to establish a satellite office in Jackson County.”
But the county still has money woes, the statement continued; its officials aren’t sure whether all satellite-office expenses would be reimbursed nor what would happen if its HAVA allocation ran out. The county made these claims despite being preapproved for HAVA funding, with the authorization and allowable expenses detailed in the 2014 South Dakota HAVA Plan, on the secretary of state’s website.
So, what if the county uses up its allocation? “It can write a grant for more money from funds the state holds,” said South Dakota HAVA coordinator Brandon Johnson. What happens when local governments wonder which expenses are legitimate? According to Johnson, they call him, and if he can’t answer, he calls the federal Election Assistance Commission and/or checks its past rulings. The county’s lawyer for this lawsuit, Sara Frankenstein, declined to comment for this article.
Some observers called the funding issue a red herring that distracted from the important VRA issues. “The Voting Rights Act doesn’t allow a jurisdiction to grant voting rights to one group and deny or burden the voting rights of another group,” said McDonald. “People must be treated equally.”
Bottom line, the judge now sets a scheduling order and the case moves forward, said one of the Oglala plaintiffs’ attorneys, Eileen O’Connor of Lawyers’ Committee for Civil Rights Under Law.

c. Stephanie Woodard; photograph by Joseph Zummo, c. Joseph Zummo. 

Poor Bear Wins a Round: Oglala Voting Suit Advances

This story first appeared on Indian Country Today Media Network in May 2015. For an August 2015 update, go here.

A federal judge has shredded claim after claim by a South Dakota county that overlaps the Pine Ridge Indian Reservation but will not guarantee tribal members on-reservation voter registration and in-person absentee voting (sometimes dubbed “early voting”). In future, Jackson County wants all residents to continue traveling to the courthouse in the county seat, Kadoka, to access the full range of voting services.
Tribal members, including Oglala Sioux Nation vice president and lead plaintiff Tom Poor Bear, sued. They say the county’s stance violates the Voting Rights Act and the Fourteenth Amendment, guaranteeing equal rights. The county defendants came back with a motion that the suit, Poor Bear v. The County of Jackson,be dismissed.
Judge Karen Schreier turned the county down, repeatedly opining that the plaintiffs had offered sufficient grounds to move the suit forward, while the county had not shown it should be shot down.
Jackson County tried to claim, among other things, that it can’t afford an additional polling place. However, wrote Judge Schreier in a powerfully documented opinion, the county knew it had the necessary Help America Vote Act funds for the facility two months before it turned down tribal voters’ request.
“It is reasonable to infer [the county knew] the funding justification was not true,” wrote the judge. This, in turn, supports the possibility of proving “intentional discrimination,” she said.
Judge Schreier swept more county arguments off the table, noted plaintiffs’ attorney Matt Rappold, of Rapid City. She evoked a Supreme Court decision when she rejected the notion that in-person absentee voting is a mere convenience and not protected under the law. The plaintiffs aren’t claiming it would simply be easier to vote absentee, she wrote; instead, the “crux” of their argument is that poverty, lack of transportation and the distance from the reservation to the courthouse deprive them “of an equal opportunity to vote.”
The judge called another county argument “unpersuasive” and said yet another relied on a legal precedent it had entirely misread. When contacted for a response to the opinion, the county’s attorney for this matter, Sara Frankenstein, thanked ICTMN for reaching out but said she had no comment.
The dispute occurs in the context of South Dakota’s long history of voting discrimination, according to Rappold. In Jackson County, Native people could not vote until the 1970s and could not hold county office until 1980. The state and jurisdictions within it have fought, and mostly lost, more than 20 voting-rights lawsuits. It is one of the most unrelenting states in the nation in opposing Native enfranchisement.
Among the official opinions on the state attorney general’s website is William Janklow’s 1977 denunciation of the extension of the Voting Rights Act to Native Americans. It was an “absurdity,” wrote Janklow, who in addition to serving as the state’s governor, congressman and top legal official, was convicted of manslaughter in 2003. Drag your feet on implementation, he advised South Dakota’s then-secretary of state.
Meanwhile, Kakoka’s mainly white population can register and cast a ballot at the local courthouse starting 46 days before federal elections. “As OJ Semans, head of Four Directions voting rights group, often tells us, you can’t give one group 46 days to vote and another just one day and call it equal,” said plaintiffs’ attorney Eileen O’Connor, of Lawyers’ Committee for Civil Rights Under Law, a nonpartisan group formed to fight discrimination at the request of President John F. Kennedy. The organization was instrumental in crafting Poor Bear v. The County of Jackson, which also received support from the law firm Dechert, in Chicago. The U.S. Department of Justice backed the suit with a Statement of Interest in January of this year.
Judge Schreier’s ruling clears the way for Poor Bearto move toward discovery, depositions and a trial, where these matters will be “determined on the merits,” as she put it in her opinion.
Rappold and O’Connor were confident. “It’s too bad we have to continually sue for voting rights,” said Rappold, “but with this decision, we have the opportunity to prove our case and gain equal rights for Native Americans.”

Text and photograph c. Stephanie Woodard.

OST Takes Aim at Newspaper, Attorney

This story, and a follow-up, originally appeared on Indian Country Today Media Network in March and April 2015.

The Oglala Sioux Tribal Council has approved a resolution requesting that Pine Ridge Indian Reservation businesses halt sales of the Rapid City Journal.

The action was in response to the newspaper’s January 31 front-page headline, “Did Native students stand for National Anthem?” The article elaborated on a disputed anonymous claim that Pine Ridge schoolchildren who were taunted and sprayed with beer at a Rapid City Rush hockey game had not stood for The Star-Spangled Banner.

The article and its headline caused lasting outrage. The Native American Journalists Association called the story “troubling” and “irresponsible.” Native News Online called it “blaming the victims.” At a public forum, Rapid City Mayor Sam Kooiker held the newspaper upside down and described it as “an example of institutional racism,” wrote David Rooks in ICTMN.

The Associated Press article on the council’s February 24 resolution — and the newspapers, TV and radio stations and blogs that picked it up — described the action as a “ban.” As word spread, so did accusations that the council had trampled on freedom of the press and the First Amendment.

Not so, said leading Indian-law expert Carole E. Goldberg, professor of law and vice chancellor at UCLA. “I have read the resolution carefully. It does not bar sales of the newspaper. It merely supports a ‘request’ by an entity of the Tribe that reservation businesses not sell the paper.” The mainstream press has a tendency to sensationalize Indian-country stories, and that may have been what happened here, Goldberg added.

“With the resolution, the tribal council was making a point,” said James Mitchell, a manager at Big Bat’s store and gas station, in downtown Pine Ridge. “The Journal published something they shouldn’t have, and the council made an example of them.”

Big Bat’s is not selling the paper, Mitchell said: “This is a sovereign nation, and stores here are complying with the request.” Calls to other reservation stores with newsstands found similar policies. Both Mitchell and Lisa Spotted Horse, a cashier at Pinky’s, in Manderson, said customers were divided between those who supported the resolution, those who didn’t, others who didn’t care, and yet others who said they could pick up the paper off-reservation. Mitchell noted that Pine Ridge village residents could find a copy in Whiteclay, Nebraska, just over the state line (shown above); in South Dakota, Martin and Interior are nearby options.

The Rapid City Journal has long been described as racist and divisive on South Dakota reservations and increasingly throughout the state. Oglala tribal member and former tribal attorney Brett Lee Shelton said he sympathized with the decades of irritation that lay behind the council’s action.

“In my experience, the Rapid City Journal seems to set aside any consideration of journalistic ethics or the impact of its approach when it reports on Pine Ridge,” Shelton said. “A few years ago, I finally blew up at one of the editorial staff, told them exactly what I thought and have since refused to work with the paper.”

RCJ executive editor Bart Pfankuch has denied that the paper is intentionally divisive, pointing out to NAJA that its coverage condemned what happened to the children at the hockey game. He said in future the paper’s aim will be to “try our hardest to bridge gaps and not deepen them.”

In the portion of the February 24 resolution pertaining to attorney Patrick Duffy, the council used unmistakably strong language. Because Duffy is representing the man alleged to have harassed the children, the council “removed” him as a tribal contractor, “banned” him from doing business on the reservation and “revoked” his tribal-court privileges. The resolution also linked Duffy to the Rapid City Journal, where it claimed he is a writer. (He is not, said the newspaper’s HR department, though his son, sportswriter Padraic Duffy, is on staff there.)

Tribal Vice President Tom Poor Bear criticized the council’s position on Duffy, according to Native Sun News, which quoted Poor Bear saying at a recent public meeting, “Every one accused of a crime has the right to a lawyer, and an attorney cannot be held responsible for the alleged crimes of his client.”

True, said Shelton, but noted that the tribe nevertheless retains the right to regulate business, and whom it allows to conduct business, within its borders.

Goldberg said she’d be surprised if the Oglala constitution and laws didn’t allow a tribal-court challenge to this portion of the resolution.

The tribe’s spokesperson, Kevin Steele, created additional uncertainty when he told the AP last week that the ban will be in effect until RCJ prints an apology (it did so on February 2). Steele did not respond to requests for comments on the resolution as a whole or the apparent mix-ups.

c. Stephanie Woodard; photographs by Joseph Zummo, c. Joseph Zummo.