The Missing Native Vote

This article was published by In These Times magazine and picked up by in 2014. For more on topics like this, see my book, American Apartheid: The Native American Struggle....

Fort Belknap Indian Reservation in northeastern Montana

It was mid-April 2014, and Montana was gearing up for the first round in this year’s mid-term elections. The primaries would get underway in Big Sky country on May 5, with thirty days of advance voting by absentee ballot—by mail or by delivering a ballot in person to county courthouses—leading up to Primary Day on June 3. If people hadn’t registered, they could head to the courthouse to do so.

But for Ed “Buster” Moore, from the Fort Belknap Indian Reservation in north-central Montana, it wasn’t so simple. To cast a ballot during the absentee-voting period, he would have to make a 126-mile round trip to the nearest courthouse, in Chinook. That’s about $21 worth of gas, not to mention the income that Moore, an artisan, would lose from taking time off from his work making hand drums, rawhide bags and other items that he sells in his community and on the Internet. A diabetic, he’d have to buy lunch on the road. Those expenses add up.

“If I had to vote right now, I couldn’t afford it—not this week or next,” Moore said. For fellow tribal members who are unemployed or receiving some form of assistance, voting would be impossible, he said. “It’s sheer economics.”

Moore’s situation isn’t unusual in Indian country. Though some minority voting-rights issues, such as increased ID requirements or limited voting time have made headlines in recent years, the challenges Native American voters face have been off the national radar screen. In the second decade of the 21st century, nearly 50 years after the Voting Rights Act of 1965 outlawed any voting practice that discriminates on the basis of race, color or membership in a language-minority group, American Indians are still working to obtain equal voting rights.

Blaine County courthouse
Plenty of Montanans register during the month preceding elections: 20,000 in 2012. But there’s a catch. The courthouses where they must register are in largely white-inhabited county seats, not on reservations. In the nation’s fourth-largest state—at 147,040 square miles, Montana is bigger than Germany—that can mean daylong trips for Moore and others who live on isolated tribal homelands. In 2012, just 32 Native Americans registered at the courthouse (shown here) in Blaine County, which overlaps Fort Belknap and handles national elections there, according to a 2014 report by political science professor Jean Schroedel, of Claremont Graduate University.

And that’s just registration. The month-long voting period is supposed to make casting a ballot easier, and hundreds of thousands of Montanans do take advantage of it. In 2012, 42.5 percent of voters either mailed in an absentee ballot or voted in person during the month leading up to primary day, according to official state election results. But in-person voting is only allowed at those same county courthouses that are a long way from reservations. And, with unreliable postal service in Indian communities, voting by mail poses its own difficulties. For Native people, casting a ballot in Montana can be a multi-day event.

The distances between reservations and county courthouses aren’t just an inconvenience; for many Natives, that distance can mean the difference between voting and not voting. Johnathan Walker, student body president of Fort Belknap’s Aaniiih Nakoda College and an avid participant in get-out-the-vote efforts, recalls one 85-year-old woman who missed her opportunity to vote because Walker was unable to secure election-day transportation to take her to the courthouse to register.

To measure the impact of these hurdles, Professor Schroedel looked at the 2012 General Election in three Montana counties that overlap reservations. In Blaine County, 55 percent of voters in white precincts voted absentee. Meanwhile, 17 percent—less than one-third as many—did so in Indian precincts. The proportions were similar elsewhere in the state.

William “Snuffy” Main 
None of this adds up to equal rights, according to former Fort Belknap tribal chairman and cultural leader William “Snuffy” Main, shown here. “Indians have one day to vote, assuming they’ve registered ahead of time, and everyone else has a month,” says Main, a board member of the Native voting-rights nonprofit Four Directions.

That may change, thanks to a federal lawsuit led by Mark Wandering Medicine, a Northern Cheyenne spiritual leader and Vietnam veteran, shown below with Main. Wandering Medicine would have to drive 180 miles round trip to vote or late-register in a county courthouse. The case, Wandering Medicine v. McCulloch, pits plaintiffs from three Montana reservations—Fort Belknap, Northern Cheyenne, and Crow—against county elections officials and the secretary of state and top elections officer, Linda McCulloch. The plaintiffs demand equal access on their reservations to the absentee voting and late registration currently offered only in county courthouses.

At press time, in late May, opponents in the suit were set to appear in a federal courtroom near the site of the Battle of Little Bighorn, within days of the battle’s 138th late-June anniversary. The location and timing are apt, as the lawsuit resembles a sequel to that famous encounter, also known as Custer’s Last Stand. With support from regional and national Indian organizations, the plaintiffs and their supporters are from virtually all the legendary Plains tribes that won the 1876 engagement—the Sioux, Cheyenne, Arapaho, Blackfeet, and Gros Ventres—as well as from other tribes.

“New Native allies from Alaska to Arizona have joined our fight,” says Four Directions co-director, OJ Semans, who’s Rosebud Sioux from South Dakota. Even Lt. Colonel Custer has a proxy for Little Bighorn II: Geraldine Custer, an election official named in the lawsuit, is married to a Custer descendant.

Mark Wandering Medicine (l.) and William “Snuffy” Main
This time around, the Native people have the United States on their side: Wandering Medicine has attracted the interest of the Department of Justice, which views the suit as an important test of the Voting Rights Act of 1965 and has taken it up as part of its efforts to ensure equal rights nationwide. These efforts include challenges to a Texas voter-ID law and to North Carolina’s increased voter-ID requirements and shortened time to cast ballots. The DOJ has filed an amicus brief and two Statements of Interest on behalf of the Wandering Medicine plaintiffs and sent an attorney to argue in a 2013 hearing.

One of the Wandering Medicine defendants’ central claims has been that Montana Natives have participated to some degree in the electoral process and have elected some representatives of their choice, so they have all the rights the law guarantees. But the DOJ disputes this, arguing that the Voting Rights Act does not require minority voters to prove they lack all electoral opportunity whatsoever. If the defendants prevail, warns the Justice Department, jurisdictions would have “a green light to discriminate” and could, for example, keep polling places open for 12 hours in white precincts but only three hours elsewhere. “That simply cannot be the law,” wrote the DOJ in its April Statement of Interest.

On the other hand, a ruling for the Native plaintiffs would mean equality for Native voters, as well as for other isolated minority communities, such as Latinos in the Southwest, says Semans: “Wandering Medicine has the potential to transform minority voting access.”

Fort Belknap buffalo herd heads cross-country

Fort Belknap sits north of the Little Rocky Mountains, where pines and aspens climb the mile-high, 15-mile-wide range and an old wagon road winds across the base of the craggy slopes. Buffalo and horses graze in hilly grasslands; other areas are given over to cattle and hay.

The reservation is about the size of Rhode Island and is home to two tribes, the Gros Ventre (pronounced grow-vont), called the Aaninin in their own language, and the Assiniboine, who call themselves the Nakoda. About half of 7,000 enrolled tribal members live on the reservation. Most live in modest, ranch-style homes, some clustered together, others scattered across the reservation’s 1,200 square miles of rolling plains. Life is not easy at Fort Belknap. In 2013, the Montana Department of Labor and Industry pegged tribal members’ unemployment at 69.6 percent. Those who have found employment mostly work for the tribal government, the Indian Health Service, the Bureau of Indian Affairs, and Fort Belknap’s Aaniiih Nakoda College.

To determine how distance and poverty affect Native voting access, the DOJ asked University of Wyoming geography professor Gerald R. Webster to examine the three Montana reservations involved in Wandering Medicine. Webster found that Indians on those reservations traveled two to three times farther than whites to get to a county courthouse where they could vote. Meanwhile, depending on the reservation, Indians were two to three times more likely not to have a vehicle for the trip and less likely to have money to fill the gas tank: In Blaine County, which overlaps Fort Belknap, Webster found that the Native poverty rate was 2.5 times that of whites; in Rosebud County, which overlaps the Northern Cheyenne reservation, Natives were four times more likely than whites to live below the poverty line.
Fort Belknap horses

Fear also keeps Natives away from white towns and their courthouses, establishing an apartheid condition in American Indian communities. “They are today the poorest, most isolated and in some quarters, the most racially castigated population in the country,” writes sociologist Garth Massey, a University of Wyoming emeritus professor who submitted an expert report to the court on behalf of the plaintiffs. 

In 2000 and 2007, the U.S. Civil Rights Commission issued reports on the hate crimes, murders and fatal police shootings that Natives face in towns near reservations in states such as Montana, South Dakota and New Mexico. Experts who testified to the USCRC said that Native Americans reported few hate crimes to police because of police mistrust and because such incidents were so widespread the victims often considered them normal. 

South Dakota, home to Lakota and Dakota tribes, has scores of unsolved murders of Indian victims. For decades, according to the USCRC and the FBI, the bodies of murdered Natives have been found lying by roadsides, floating in a river, and stuffed in a garbage can. Natives have been shot, stabbed, run over, and hacked to death. “In recent years, things have improved in South Dakota,” says Semans, a former criminal investigator for tribes, the Bureau of Indian Affairs, and other federal agencies. “Indians may still be murdered with impunity in some cases, but the police no longer feel free to open fire on us.”

Fort Belknap homes near Little Rocky Mountains
Not so in Montana, where Semans has encountered stories he finds credible of police brutality and fatal police shootings. “Native people have a hard time in Montana,” he says. “Keeping polling places in white communities and off reservations is an efficient way to disenfranchise us.”

Full political participation has been a long time coming for American Indians. Nineteenth-century policy veered between killing and “civilizing” Indians, writes Daniel McCool, political science professor at the University of Utah and author of Native Vote: American Indians, the Voting Rights Act, and the Right to Vote. Those in favor of the former had clear aims. McCool quotes a Nebraska newspaper that editorialized after Custer massacred a Cheyenne village in 1868: “Exterminate the whole fraternity of redskins.” 

However, “civilization” required a kind of cultural erasure. State laws offered enfranchisement to Indians who could demonstrate that they had renounced tribal ties or owned “white” clothes and houses. In 1924, Congress made Native people U.S. citizens, thus entitled to vote, but they still had to overcome state laws, court decisions and more that blocked suffrage, says McCool. Even passage of the Voting Rights Act in 1965 didn’t ensure American Indians could vote. They faced gerrymandered districts, lack of language assistance for those not fluent in English, registration barriers and harassment at the polls.

“Native people are still in the courts, suing for access that the VRA and Fourteenth Amendment, guaranteeing equal protection, say they should already have,” says Four Directions legal director Greg Lembrich, a New York City attorney.

To overcome the hurdles of distance, poverty, and racism, in mid-2012 several Montana tribes asked state and county elections officials for one satellite office on each reservation during the month prior to federal elections. Four Directions assisted with negotiations. The counties were adamant: They didn’t have the time or resources to provide the offices. In 2012, Geraldine Custer told investigative news site, “I don’t care if they’re black, white or Chinese; I just don’t have the staff. It’s not about race. I’m just swamped.” Secretary of State McCulloch said she couldn’t force the counties to open the offices.

Moore, then a Fort Belknap tribal council member, participated in the talks. He feels his people were told, “Yeah, you got a right to vote, but we’re going to make it as hard as possible.”

Voting-rights advocates gather in Portland, Oregon 
With no solution in sight, Four Directions helped tribal leaders from three reservations identify plaintiffs, including Moore, and file a federal lawsuit. The first hearing, in October 2012, was for an emergency injunction to set up the offices prior to the fall election. U.S. District Judge Richard Cebull dismissed the request. The Native plaintiffs appealed to the Ninth Circuit Court of Appeals, sitting in Portland, Oregon. Wandering Medicine is seen center left with supporters just before the hearing in Portland.
At that time, Judge Cebull was under fire for sending an email maligning President Obama’s mother. In January 2013, a judicial oversight panel revealed that Cebull had sent hundreds of racist, sexist, and homophobic emails, including some disparaging Native Americans. The judge retired. In October 2013, judges of the Ninth Circuit Court of Appeals, seen below right, vacated Cebull’s opinion in the Wandering Medicine lawsuit and sent the case back to Montana for a do-over. 

Ninth Circuit Court of Appeals judges listen to arguments
Mark Wandering Medicine has been hopeful. In February, he watched a preliminary hearing before the lawsuit’s new U.S. District judge, Donald Molloy, and told Indian Country Today Media Network that the suit is finally being heard by someone “who wants to stick to the facts and the law.”

If Wandering Medicine succeeds in giving Natives in Montana equal access to the polls, the impact could resonate far beyond the state borders. At press time, a New York Times analysis showed that Republicans were increasingly likely to gain the six seats they need to wrest Senate control from the Democrats. However, three of those seats belong to Montana, Alaska, and South Dakota, which have substantial Native populations (8, 20 and 10 percent, respectively) that tilt, sometimes heavily, Democratic. There are no nationwide Native party-registration figures, so how heavily is best understood by looking at areas that are almost entirely American Indian, says Four Directions consultant Bret Healy. He points to South Dakota’s Shannon County, which is nearly contiguous with the Pine Ridge Indian Reservation. In 2012, according to state figures, 5,930 residents were registered as Democrats and 583 as Republicans.

In other words, it’s possible the Native vote in these three states could determine control of the Senate. According to Tom Rodgers, a Washington, D.C., political strategist and member of the Blackfeet, a Montana tribe, the non-Native population in Montana is divided between the two major parties, at about 45 percent each. “In between are the Indians, who vote overwhelming Democratic,” says Rodgers. In 2012, the Obama-Biden ticket received more than 90 percent of the vote in two precincts on Fort Belknap and in five on the Blackfeet reservation.

It wouldn’t be the first time American Indians decided a national election, according to Lembrich. The Native vote has been credited with ushering Montana’s Democratic Senator Jon Tester, to victory in 2006 and 2012. In South Dakota, Democrat Tim Johnson held onto his U.S. Senate seat in 2002 by just 500-some ballots, after earning 92 percent of Pine Ridge ballots, out of nearly 3,000 cast.

Other Democratic senators with decisive tribal backing include Mark Begich, from Alaska, Washington state’s Maria Cantwell, and Heidi Heitkamp, of North Dakota. In the 2002 Arizona governor’s race, Navajo turnout helped Democrat Janet Napolitano eke out a 2,000-vote margin of victory. “Without the Native American vote, I wouldn’t be standing here today,” Napolitano told the 2004 Democratic National Convention.

“We’ve proven that if we get out to vote, we can make a difference,” says Fort Belknap Tribal President Mark Azure. If candidates ignore the reservations? “They won’t get in.”

The GOP is typically the villain in voting-rights scandals, and there are Republicans among the Wandering Medicine defendants. But there are also Democrats, including the lead defendant. Semans accuses Democrats of trading on decades-old accomplishments and alliances instead of addressing contemporary Native-rights issues. This year in particular, he says, party members have basked in the reflected glory of the 50th anniversary of the Civil Rights Act. “They’re riding the coattails of truly great leaders such as Dr. King, while ignoring today’s Native call for civil rights,” he says.

When asked about the national party’s position on the Montana lawsuit, the Democratic National Committee’s voter protection director Pratt Wiley said the DNC backs the Montana reservation satellite offices in theory, but believes “technical logistics” prevent setting them up. The party seems to be counseling patience. “The heart of the question in Montana from the Democratic perspective [is] how do we get to where we all want to be. It has to do with those technical questions, who has the authority to do it and who will write the check,” said Wiley. Still, Wiley said, the American Indians are a “core constituency” of the party; he’d consulted with the DNC’s Native advisors for “a regular check-in” earlier that week, although he could not recall their names.

As a matter of recognized constitutional law, “technicalities” don’t override equal rights, says civil rights attorney Laughlin McDonald, longtime head of the ACLU’s Voting Rights Project and author of American Indians and the Fight for Equal Voting Rights. “Administrative inconvenience cannot justify practices that burden the fundamental right to vote.”

What would Martin Luther King do? “About Native voting? He sure as hell wouldn’t dither about technicalities,” says Healy, a former head of the South Dakota Democratic Party. “Read Dr. King’s ‘Letter from Birmingham Jail’ on the subject of waiting for rights.” In the 1963 letter, King decries the one “who paternalistically believes he can set the timetable for another man’s freedom” and tells the reader that “‘wait’ has almost always meant ‘never.’”

But hey, Democrats! How about winning elections? Controlling the Senate? Doesn’t the party want all those Native Democrats at the polls? Wiley says the DNC doesn’t see it that way. “We don’t look at expanding the vote as a way to ensure more Democratic voters can vote. We don’t look at it as a way to ensure more African-American, Latino, or Native American voters can vote. It’s about making sure everyone can vote.”

Healy speculates that the DNC is reluctant to break ranks with party members among the Wandering Medicine defendants or with lead defendant McCulloch’s attorney, Jorge Quintana, who is one of two Montanans on the Democratic National Committee. Rodgers agrees and suggests that, in addition, local elected officials of any party are, in turn, reluctant to rile constituents in areas surrounding reservations. If Indians voted in large numbers, the balance of power would shift locally, says Rodgers: “Non-Native communities would realize they can no longer set the agenda.” Tribal members would be at the table when decisions are made—about water rights, rural transportation, energy development, healthcare for the high proportion of tribal members who are veterans and much more.

Perhaps the DNC believes it can count on Native voters without taking sides in Wandering Medicine. This may be hubris, warns former Montana Democratic state legislator Margarett Campbell. Originally from Fort Peck Indian Reservation and now a Fort Belknap school superintendant, Campbell has fought for Indian rights for decades. She suspects that confidence in the Democratic Party may wane among tribal members and that they may stay home in 2014. “It could be a heads-up for the state’s lead Democrats. You can’t treat a huge segment of your voting population like that without them feeling disenfranchised.”

Walker agrees, saying the timing of this crisis of confidence is terrible. He explains that the sequester and government shutdown badly affected Indian country, since delaying and canceling government contracts put tribal members out of work. As a result, American Indians see voting and having a political voice as not just important, but critical. At the same time, they feel the party they’ve supported so enthusiastically isn’t listening. “It’s disheartening,” says Walker.

“Democrats should never take [Native] votes for granted,” says McCool. He describes tribal members as “acutely aware” and “issue-specific” voters, who have supported Republicans, including Arizona’s John McCain.

William “Snuffy” Main at a spring at the base of the Little Rocky Mountains

William Main stood overlooking a warm spring in a deep valley just north of the Little Rocky Mountains, shown here. “The frogs have disappeared,” he said, gesturing toward the spring. “So have the fireflies and a silver-striped minnow.” The likely culprit is a cyanide heap-leach gold mine that the federal and state governments allowed to open in 1979 on one of the range’s peaks, Spirit Mountain, over the objections of tribal members. People appear to have been affected as well. “They get cancer, and in a few months they’re gone,” said Main. 

The sacred site, where tribal members have sought visions and collected healing plants since time immemorial, is gone, too. All that remains is an immense yellow scar on the horizon, where orange, yellow and blue-grey streams carrying lead, arsenic and other heavy metals bleed down battered slopes into the reservation’s rivers and creeks. For years, tribal members have called for robust studies on the effect of the mine’s toxins on human and environmental health.

Better voting access would help tribal members pressure politicians to launch such a study, says Main, and would encourage elected officials to respond to the reservation’s myriad other problems—high unemployment, extreme poverty, substance abuse and other social ills, a chronically underfunded healthcare system and crumbling schools, public buildings and homes.

Wandering Medicine is not the only case before the courts recently. Native people face numerous obstacles to equal rights, and more lawsuits have confronted them. In April, McDonald and Montana ACLU attorneys negotiated a redistricting settlement that provides Fort Peck tribal members with equal representation on a local school board. Jackson v. Board of Trustees of Wolf Point School District is one of many suits since the 1960s that have restructured districts that sideline the Indian vote. The Navajo Nation is currently fighting just such a suit, which claims that election districts in Utah’s San Juan County, which the reservation overlaps, are designed so Navajo votes have less weight than those of non-Navajos.

Alaska Native villagers struggle to get to the polls
In Alaska Native settlements, such as the one shown here, lack of language assistance is a major voting obstacle, according civil-rights attorney James Tucker, of Wilson Elser, in Las Vegas, who took this photograph. In Toyukuk v. Treadwell, Tucker argues that Yup’ik speakers in parts of southwestern Alaska haven’t received the language assistance that is mandated by the Voting Rights Act for those who aren’t English-proficient. As a result, some Alaska Native voters struggle with lists of candidates, text of referenda and instructions for signing, folding and other manipulations of the ballot that must be done absolutely correctly for the vote to count, according to Tucker. “Voting can be a Hail Mary play,” Tucker says.

In South Dakota, Pine Ridge Indian Reservation voters settled Brooks v. Gant last year, giving them absentee-voting satellite offices through January 2019. Four Directions helped frame the lawsuit, based on its experience setting up offices in past elections. The nonprofit then secured a commitment from South Dakota to use Help America Vote Act funds for more reservation offices.

Main says these struggles—and victories—will bring Native people into our nation’s political life. “There will be more Native elected officials and a greater involvement for us in our traditional lands, which taken altogether for the U.S. tribes, encompass the United States of America,” Main says. “We have fought for this country, and now we want to be part of taking better care of it.”

Semans agrees. “People are always telling us we have to improve our social and economic conditions,” he says. “Participating in the electoral process is how we’ll do it.”

Text c. Stephanie Woodard; 4 photographs c. Joseph Zummo, 6 c. Stephanie Woodard, and 1 c. James Tucker.

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