‘Every barrier imaginable’

NARF report details obstacles Native American voters face

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The Native American Voting Rights Coalition held nine field hearings in Native communities around the country in 2017 and ’18 to better understand barriers to voting.
Courtesy of Native American Voting Rights Coalition

“[W]e were the first here… I live a stone’s throw away from where my great grandfather was born in a wigwam,” Stephanie Thompson, a member of the Lac du Flambeau Band of Lake Superior Chippewa in Wisconsin told a panel of lawyers and advocates in Milwaukee in 2017. “[But] it’s like we have to prove that we’re able to vote in a system that’s being pressed on us.”

Across the country there are an astounding 1 million eligible Native Americans not currently registered to vote. And those who are registered face myriad hurdles when exercising their right to vote. That’s according to Obstacles at Every Turn: Barriers to Political Participation Faced by Native American Voters, a June report from the Native American Voting Rights Coalition (NAVRC), founded in 2015 by the Boulder-based Native American Rights Fund (NARF). 

“Everyone needs to have an equal opportunity to cast their ballot and let the chips fall where they will — Republican or Democrat, whoever comes out on top at whatever level, that’s how our system is designed to be,” says Dr. James Thomas Tucker, one of the report’s authors and pro bono legal counsel with NARF for the last 14 years. “Unfortunately, as you saw from our report, the system doesn’t work out that way for many.” 

The report was prompted in part, Tucker says, by the 2013 Supreme Court decision in Shelby County v. Holder, in which the Court majority struck down part of the Voting Rights Act (VRA) that required the federal government to sign off on changes to voting laws and practices in certain jurisdictions with a history of discrimination. In the ruling, the Court effectively said that in the U.S., “registering to vote, casting a ballot and having that ballot counted” — or what Tucker calls “first generation voting barriers” — were no longer an issue. 

“We scratched our heads,” he continues, “that can’t possibly be true because most of the cases that we’re bringing in Indian Country involve first generation voting barriers.”

Obstacles at Every Turn summarizes and analyzes 125 testimonies, like Thompson’s, from nine different field hearings the NAVRC held in Native American communities around the country in 2017 and 2018. The goal was to better understand systemic and cultural barriers Native Americans face while engaging in the electoral process, of which the lawyers with the NAVRC found plenty. Everything from lack of traditional mailing addresses to voter ID laws to unequal access to early voting to ballot harvesting bans and cultural and political isolation affect voting in Indian Country. 

“Through its field hearings, the NAVRC found that every barrier imaginable is deployed against Native American voters,” the report concludes.

The history of Native American voting is fraught with discriminatory laws and voter suppression tactics, according to the report. Even after Native Americans were universally granted citizenship through the Nationality Act of 1940, many states still prohibited Native Americans from voting if they lived on reservations because they didn’t pay property taxes or couldn’t pass literary tests (a similar tactic used to suppress black voters in the South). The passage of the Voting Rights Act (VRA) in 1965 expanded voting rights to Native Americans in theory and has been used in decades of lawsuits and court decisions to challenge unfair voting laws and practices in Indian Country. According to the NARF report, a 2008 review of Native voting rights cases found that Native plaintiffs were successful in 68 out of 74 lawsuits in 15 states since the passage of the VRA.  

“We are supposed to be a world power, we are a technologically advanced society, and yet we still continue to let down, and in some cases some places are actively trying to depress, the ability of the first Americans to participate and exercise their fundamental right to vote,” Tucker adds. 

And yet, Native voters have been known in recent years to determine the outcome of elections throughout the U.S. In South Dakota, 500 votes from Pine Ridge Reservation secured the reelection of Democrat Tim Johnson in 2002. A decade later in neighboring North Dakota, Democrat Heidi Heitkamp credited Native American voters for her win, with a 1% margin. Montana, traditionally a red state, has elected plenty of Democratic senators and even governors, because of the votes of the nine tribes in the state. Tucker attributes the two gubernatorial terms of Democrat Janet Napolitano in Arizona to the Navajo vote. 

And in North Carolina, both a battleground for the presidential election and a tight 2020 Senate race, there are 275-280 million American Indians or 2.5% of the state’s population. 

The findings detailed in the report have already effected change in some states, while prompting litigation in others. Iowa began accepting tribal IDs after the field hearings, while Washington, an all-mail-voting state since 2011, began providing pre-paid postage for all ballots. Currently, NARF is challenging a law in Montana that seeks to combat ballot intervention by limiting ballot collection efforts in a state where the majority of citizens vote by mail and drop off ballots at collection boxes. But, NARF says, the law in practice severely restricts the right to vote for Native Americans, as historically community members often gather dozens of ballots from remote friends and families to drop off at election offices.  

Moreover, Obstacles at Every Turn documents the significant difference political representation can have for Native communities. To that effect, Tucker says the NAVRC is also engaged in 2020 Census efforts as redistricting will be a large focus after that work is completed. NARF is also working with legislators and other stakeholders to see how to address some of these issues from a policy perspective and not just through litigation. 

Despite the report’s “discouraging information,” it has also created some bipartisan support and unexpected allies in the NAVRC’s work, Tucker says. 

“I think people understand collectively that there is a huge debt that we owe to the first Americans,” he says. “And, one of the ways that we can show that Native Americans matter is to make sure that we give them unimpeded access to the ballot box.”