American Indian Voting Rights

During the first part of the twentieth century, American Indians were granted citizenship by Congressional action on several different occasions. While citizenship is often felt to be associated with the right to vote, this has not always been the case with regard to Indians. The right to vote is a right which has been traditionally controlled by the states. The states had tended to view Indian voting and Indian citizenship as two separate items. While the struggle by African Americans to obtain the right to vote is fairly well known, the struggle by American Indians to obtain this right is less well known.

Toward the end of the nineteenth century a series of legal opinions and court rulings had determined that American Indians were not citizens and furthermore they could not attain citizenship unless Congress enacted specific legislation granting citizenship. In 1887 Congress passed the General Allotment Act (also known as the Dawes Act). While the primary focus of the Dawes Act was on breaking up Indian reservations, destroying tribal governments, and transferring land from Indian ownership to non-Indian ownership, it did provide the legal mechanism for Indians to become citizens. Part of the act called for citizenship to be conferred on those who abandoned their tribes and adopted the habits of civilized life. Ideally, Indians who became Christian, English-speaking farmers could become citizens. Citizenship in the minds of non-Indians was directly associated with private land ownership.

In Matter of Heff the Supreme Court held in 1905 that Indians became American citizens as soon as they accepted their land allotment. The decision infuriated Congress and the Bureau of Indian Affairs who had insisted that Indians who accepted allotments could not become citizens until the end of their trust period of twenty years.

In 1907, Ethan Anderson (Pomo) won a court case (Anderson versus Mathews) which gave non-reservation Indians the right to vote. Anderson had attempted to register to vote in Mendocino County and was refused. The court case, which was decided by the California Supreme Court, was funded by the Indian Board of Cooperation.

The drive for Indian citizenship came up again during World War I. Indians were required to register for the draft but were ineligible to be drafted since they were not citizens. Yavapai physician Dr. Carlos Montezuma protested the draft policy and urged the United States to make Indians citizens and then draft them. He wrote: “They are not citizens. They have fewer privileges than have foreigners. They are wards of the United States of America without their consent or the chance of protest on their part.”

While Indians were not liable to be drafted, they enlisted in large numbers. An estimated 10,000 Indians served in the military during the war. In 1919, Congress passed an act which provided citizenship for all Indians who served in the military or in naval establishments during World War I.

There were many Indians who saw citizenship as something which was being imposed on them by non-Indians. In 1919, the Society of American Indians held its conference in Minneapolis on the theme of citizenship. While many supported citizenship, Cahuilla spiritual leader Francisco Patencio told them: “I and my people we do not want citizenship. … What my people in California want is to know their reservation boundary lines.”

In 1924 Congress passed the Indian Citizenship Act which gave all Indians citizenship and, theoretically, the right to vote. It is estimated that about two-thirds of the Indians had acquired citizenship before the passage of this act. Passage of the act was promoted by progressives who were concerned about the constitutional rights of Indians and who wished to free Indians from federal control. It was generally felt that citizenship would help assimilate Indians.

Two days after passing the Indian Citizenship Act, Congress passed a bill to allot the Eastern Cherokee in North Carolina. Having not upgraded the language in the bill to account for the Indian Citizenship Act, the bill provided that the Eastern Cherokee would become citizens only after receiving and registering their allotments. The State Attorney General took the position that the Eastern Cherokee were not citizens because this bill superseded the Indian Citizenship Act. The Bureau of Indian Affairs took the position that they were citizens. Local registrars assumed that the Cherokee were not citizens and did not allow them to register to vote.

In response, Congress passed another act in 1928 which specifically granted citizenship to the North Carolina Cherokee. However, Eastern Cherokee leader Henry M. Owl was denied the right to register to vote in 1930. The registrar refused to register Indians because they were not citizens. In his book Cherokee Americans: The Eastern Band of Cherokees in the Twentieth Century, historian John Finger points out: “Despite Congress’ explicit and repeated directives, county registrars continued to deny Cherokees the vote until after World War II.”

In response, Congress passed another act once again reaffirming citizenship for the Eastern Cherokee. Local newspapers protested Congressional interference with local affairs and county registrars continued to deny Cherokees the vote until after World War II. North Carolina denied Indians the right to vote claiming that Indians were illiterate. The superintendent of the Cherokee Agency reported: “We have had Indian graduates of Carlisle, Haskell, and other schools in stances much better educated than the registrar himself, turned down because they did not read or write to his satisfaction.

In 1946, North Carolina county registrars refused to register Eastern Cherokee war veterans to vote. The Cherokee appealed the decision to the governor and attorney general, but nothing was done.

In Arizona two Pima Indians attempted to vote in 1928. The Arizona Supreme Court in Porter v. Hall concluded that Indians were not entitled to vote because they were “wards of the government” and persons “under guardianship” were prohibited from voting by the state constitution. The Arizona Attorney General’s office ruled in 1944 that Indians who were living outside the reservation and who were subject to state laws and state taxation were not eligible to vote.

Some states passed legislation to disenfranchise Indians. In an effort to deny Indians the right to vote, the Montana state constitution was amended in 1932 to permit only taxpayers to vote. Since Indians on reservations did not pay some local taxes, they could not become voters. The Montana state legislature in 1937 passed a law requiring all deputy voter registrars to be qualified, taxpaying residents of their precincts. Since Indians living on reservations were exempt from some local taxes, this requirement excluded almost all Indians from serving as deputy registrars. It thus denied Montana’s Indians access to voter registration in their own precincts.

A 1937 report by the Solicitor General found that several states denied Indians the right to vote. In response to the inquiry by the Solicitor General, Colorado’s attorney general replied: “It is our opinion that until Congress enfranchises the Indian, he will not have the right to vote.” Word of the 1924 citizenship act had apparently not yet reached Colorado. Indians were not allowed to serve on juries in Colorado until 1956 and tribal members on reservations were not allowed to vote until 1970.

The Solicitor General also found that four states—Idaho, New Mexico, Maine, and Washington—denied Indians the right to vote because of the phrase “Indians not taxed” in Article 1 of the Constitution.

In 1940 Congress once again conferred citizenship on Indians in the form of the Nationality Act which again conferred citizenship on American Indians and required that Indian men register for the draft. In spite of the reconfirmation of citizenship, some states, such as New Mexico and Arizona, refused to allow Indians to vote. The Act was opposed by the Indian Defense League of America. Tuscarora leader Clinton Rickard urged those who wish to volunteer for the armed services do so as alien non-residents

Utah denied Indians the vote because Indians on reservations were not actually residents of Utah but were residents of their own nations. Indians were thus considered non-residents and hence not eligible to vote. In 1957, the Utah state legislature finally repealed the legislation that prevented Indians living on reservations from voting.

Many historians cite 1948 as the year in which Indians finally won the right to vote. Court rulings in Arizona and New Mexico affirmed that Indians have the right to vote. The Court ruling in New Mexico was started when Miguel Trujillo, Sr. (Laguna), a teacher, attempted to register to vote and was refused by the recorder of Valencia County. In the ruling, the Court found that New Mexico had discriminated against Indians by denying them the vote, especially since they paid all state and federal taxes except for private property taxes on the reservations. The federal judge remarked: “We all know that these New Mexico Indians have responded to the needs of the country in time of war. Why should they be deprived of their rights to vote now because they are favored by the federal government in exempting their lands from taxation.”

In Arizona, Frank Harrison and Harry Austin, both Mohave-Apache at the Fort McDowell Indian Reservation, attempted to register to vote and were not allowed to register. In Harrison v. Laveen the Arizona Supreme Court overturned the earlier Porter v. Hall decision and agreed with the plaintiffs that their Arizona and United States constitutional rights had been violated. All Indians in Arizona are given the right to vote.

Even though the Indian people of Arizona and New Mexico were given the right to vote, very few actually voted in the next national elections. Among the Navajo, for example, only 3,000 out of an estimated 60,000 register to vote and only about 1,000 actually voted. According to Frank Waters, in his book Masked Gods: Navaho and Pueblo Ceremonialism: “They were all possessed of the same ever-present fear—that by exercising their voting privilege and paying taxes, they would lose their land.”

In Maine, Indians were finally given the right to vote in 1953 when the state accepted the 1924 Indian Citizenship Act.

In 1957, the Utah state legislature repealed legislation that prevented Indians living on reservations from voting. Under the law, Indians had been considered non-residents and hence not eligible to vote.

In New Mexico in 1962 an unsuccessful non-Indian candidate for elective office challenged the validity of Indian voting rights by claiming that Indians were not state residents. The state supreme court reaffirmed the rights of Indians to vote in the state.

In 1968, the Havasupai finally obtained the right to vote in Arizona and federal elections. The Havasupai Reservation is located in Coconino County and the county had never designated the reservation as a voting district. Thus, Havasupai voters could only vote by registering in some distant precinct and then travelling to that distant community to vote.

During the past fifty years, the focus has shifted from obtaining the right to vote, to getting Indians elected to local, state, and federal offices. States and local governments in the western states have responded by diluting the Indian vote through redistricting plans and/or by requiring photo ID (and not allowing tribal ID) and/or requiring voters to have a street address (many rural reservation homes do not have street addresses).

Breaking News About Indian Voting in Montana

The state of Montana has a long history of attempting to deny or reduce the Indian vote. The Montana state constitution was amended in 1932 to permit only taxpayers to vote. Since Indians on reservations did not pay some local taxes, they could not become voters.

The Montana state legislature in 1937 passed a law requiring all deputy voter registrars to be qualified, taxpaying residents of their precincts. Since Indians living on reservations were exempt from certain taxes, this requirement excluded almost all Indians from serving as deputy registrars. It thus denied Montana’s Indians access to voter registration in their own precincts.

In 2012, a federal judge denied a request to establish satellite election offices for American Indians on three Montana reservations: Crow, Northern Cheyenne, and Fort Belknap (Gros Ventre and Assiniboine tribes). The judge ruled that there was no evidence that Indians were being prevented from voting for the candidates of their choice.  

This week, civil rights attorneys from the U.S. Justice Department filed a friend-of-the-court brief contending that the election offices were wrongly denied. According to the brief, the judge overlooked the discrimination suffered by Indians who had to travel long distances. Not only are the reservations rural, but many of their inhabitants are poor and thus lack the resources, such as availability of a car and ability to take time off, to travel to the distant county seat.

There are no alleged problems with voting on election day, when polling stations are set up on the reservation. Rather the discrimination is in early voting and late registration. Montanans can vote by mail with early absentee ballots or by delivering them in person to county offices which are located some distance from the reservation. Late registration begins at county offices a month before Election Day. According to Derrick Beetso of the National Congress of American Indians:

“Effectively, this gives folks living near the county seat almost 30 days more to vote. Indian tribal members living on the reservation effectively have only one day.”

The National Congress of American Indians has also filed briefs in support of the plaintiffs.

The defendants in the case include election officials from Big Horn, Blaine, and Rosebud Counties as well as Montana Secretary of State Linda McCulloch. Attorneys for the defendants have tried to get the appeal of the judge’s ruling dismissed, arguing the case was moot because the election has passed. However, this was denied by the 9th Circuit Court of Appeals.  

American Indian Voting Rights

During the first part of the twentieth century, American Indians were granted citizenship by Congressional action on several different occasions. While citizenship is often felt to be associated with the right to vote, this has not always been the case with regard to Indians. The right to vote is a right which has been traditionally controlled by the states. The states had tended to view Indian voting and Indian citizenship as two separate items. While the struggle by African Americans to obtain the right to vote is fairly well known, the struggle by American Indians to obtain this right is less well known.  

Toward the end of the nineteenth century a series of legal opinions and court rulings had determined that American Indians were not citizens and furthermore they could not attain citizenship unless Congress enacted specific legislation granting citizenship. In 1887 Congress passed the General Allotment Act (also known as the Dawes Act). While the primary focus of the Dawes Act was on breaking up Indian reservations, destroying tribal governments, and transferring land from Indian ownership to non-Indian ownership, it did provide the legal mechanism for Indians to become citizens. Part of the act called for citizenship to be conferred on those who abandoned their tribes and adopted the habits of civilized life. Ideally, Indians who became Christian, English-speaking farmers could become citizens. Citizenship in the minds of non-Indians was directly associated with private land ownership.

The drive for Indian citizenship came up again during World War I. Indians were required to register for the draft but were ineligible to be drafted since they were not citizens. Yavapai physician Dr. Carlos Montezuma protested the draft policy and urged the United States to make Indians citizens and then draft them. He wrote:

“They are not citizens. They have fewer privileges than have foreigners. They are wards of the United States of America without their consent or the chance of protest on their part.”

While Indians were not liable to be drafted, they enlisted in large numbers. An estimated 10,000 Indians served in the military during the war. In 1919, Congress passed an act which provided citizenship for all Indians who served in the military or in naval establishments during World War I.

There were many Indians who saw citizenship as something which was being imposed on them by non-Indians. In 1919, the Society of American Indians held its conference in Minneapolis on the theme of citizenship. While many supported citizenship, Cahuilla spiritual leader Francisco Patencio told them:

“I and my people we do not want citizenship. … What my people in California want is to know their reservation boundary lines.”

In 1924 Congress passed the Indian Citizenship Act which gave all Indians citizenship and, theoretically, the right to vote. It is estimated that about two-thirds of the Indians had acquired citizenship before the passage of this act. Passage of the act was promoted by progressives who were concerned about the constitutional rights of Indians and who wished to free Indians from federal control. It was generally felt that citizenship would help assimilate Indians.

Two days after passing the Indian Citizenship Act, Congress passed a bill to allot the Eastern Cherokee in North Carolina. Having not upgraded the language in the bill to account for the Indian Citizenship Act, the bill provided that the Eastern Cherokee would become citizens only after receiving and registering their allotments. The State Attorney General took the position that the Eastern Cherokee were not citizens because this bill superseded the Indian Citizenship Act. The Bureau of Indian Affairs took the position that they were citizens. Local registrars assumed that the Cherokee were not citizens and did not allow them to register to vote.

In response, Congress passed another act in 1928 which specifically granted citizenship to the North Carolina Cherokee. However, Eastern Cherokee leader Henry M. Owl was denied the right to register to vote in 1930. The registrar refused to register Indians because they were not citizens. In response, Congress passed another act once again reaffirming citizenship for the Eastern Cherokee. Local newspapers protested Congressional interference with local affairs and county registrars continued to deny Cherokees the vote until after World War II. North Carolina denied Indians the right to vote claiming that Indians were illiterate. The superintendent of the Cherokee Agency reported:

“We have had Indian graduates of Carlisle, Haskell, and other schools in stances much better educated than the registrar himself, turned down because they did not read or write to his satisfaction.”

In 1946, North Carolina county registrars refused to register Eastern Cherokee war veterans to vote. The Cherokee appealed the decision to the governor and attorney general, but nothing was done.

In Arizona two Pima Indians attempted to vote in 1928. The Arizona Supreme Court in Porter v. Hall concluded that Indians were not entitled to vote because they were “wards of the government” and persons “under guardianship” were prohibited from voting by the state constitution. The Arizona Attorney General’s office ruled in 1944 that Indians who were living outside the reservation and who were subject to state laws and state taxation were not eligible to vote.

Some states passed legislation to disenfranchise Indians. In an effort to deny Indians the right to vote, the Montana state constitution was amended in 1932 to permit only taxpayers to vote. Since Indians on reservations did not pay some local taxes, they could not become voters. The Montana state legislature in 1937 passed a law requiring all deputy voter registrars to be qualified, taxpaying residents of their precincts. Since Indians living on reservations were exempt from some local taxes, this requirement excluded almost all Indians from serving as deputy registrars. It thus denied Montana’s Indians access to voter registration in their own precincts.

A 1937 report by the Solicitor General found that several states denied Indians the right to vote. In response to the inquiry by the Solicitor General, Colorado’s attorney general replied: “It is our opinion that until Congress enfranchises the Indian, he will not have the right to vote.” Word of the 1924 citizenship act had apparently not yet reached Colorado. Indians were not allowed to serve on juries in Colorado until 1956 and tribal members on reservations were not allowed to vote until 1970.

The Solicitor General also found that four states-Idaho, New Mexico, Maine, and Washington-denied Indians the right to vote because of the phrase “Indians not taxed” in Article 1 of the Constitution.

Utah denied Indians the vote because Indians on reservations were not actually residents of Utah but were residents of their own nations. Indians were thus considered non-residents and hence not eligible to vote. In 1957, the Utah state legislature finally repealed the legislation that prevented Indians living on reservations from voting.

Many historians cite 1948 as the year in which Indians finally won the right to vote. Court rulings in Arizona and New Mexico affirmed that Indians have the right to vote. The Court ruling in New Mexico was started when Miguel Trujillo, Sr. (Laguna), a teacher, attempted to register to vote and was refused by the recorder of Valencia County. In the ruling, the Court found that New Mexico had discriminated against Indians by denying them the vote, especially since they paid all state and federal taxes except for private property taxes on the reservations.

In Arizona, Frank Harrison and Harry Austin, both Mohave-Apache at the Fort McDowell Indian Reservation, attempted to register to vote and were not allowed to register. In Harrison v. Laveen the Arizona Supreme Court overturned the earlier Porter v. Hall decision and agreed with the plaintiffs that their Arizona and United States constitutional rights had been violated.

In Maine, Indians were finally given the right to vote in 1953 when the state accepted the 1924 Indian Citizenship Act.

In 1957, the Utah state legislature repealed legislation that prevented Indians living on reservations from voting. Under the law, Indians had been considered non-residents and hence not eligible to vote.

In New Mexico in 1962 an unsuccessful non-Indian candidate for elective office challenged the validity of Indian voting rights by claiming that Indians were not state residents. The state supreme court reaffirmed the rights of Indians to vote in the state.

In 1968, the Havasupai finally obtained the right to vote in Arizona and federal elections. The Havasupai Reservation is located in Coconino County and the county had never designated the reservation as a voting district. Thus, Havasupai voters could only vote by registering in some distant precinct and then travelling to that distant community to vote.

During the past fifty years, the focus has shifted from obtaining the right to vote, to getting Indians elected to local, state, and federal offices. States and local governments in the western states have responded by diluting the Indian vote through redistricting plans and/or by requiring photo ID (and not allowing tribal ID) and/or requiring voters to have a street address (many rural reservation homes do not have street addresses).

Diluting the American Indian Vote

( – promoted by navajo)

Congress passed legislation in 1924 which gave all American Indians citizenship. While citizenship should imply the right to vote, the states often imposed barriers to allowing Indians to vote. In some instances they ignored-or simply pled ignorance of-the fact that Indians were citizens. In 1937 the Solicitor General conducted a study to find out why Indians were denied the right to vote. Colorado’s attorney general replied:

“It is our opinion that until Congress enfranchises the Indian, he will not have the right to vote.”

While many American Indian histories point to court cases in 1948 as the point at which Indians were finally granted the right to vote, many states continued to interfere with this right. States interfere with Indian voting rights in several ways: (1) restricting voter registration and polling places, (2) discouraging Indians from voting, and (3) gerrymandering.  

Restricting Voter Registration:

In many states, such as Arizona, Montana, South Dakota, and others, many Indians live on reservations. As rural residents, this often means that Indians do not have a street address or mail delivery. Therefore, they use post office boxes in reservation communities as a mailing address. During his 2008 campaign for the Arizona House of Representatives, Chris Deschene (Navajo) faced a challenge to his nominating petitions that sought to take advantage of contradictions within Arizona’s election laws in order to disenfranchise rural PO Box voters by taking away their right to select and nominate their own candidates. The Secretary of State had the jurisdiction to step in and provide a solution for the discrepancy, but chose not to get involved. Chris didn’t hesitate to take the fight to court and won, protecting the rights of rural voters to participate and nominate their own candidates, regardless of their PO Box addresses.

In some western states, there has been a push to consolidate polling places under the guise of cost reduction. For Indians on reservations, this means a much longer drive to the polling places. This is not only a barrier of cost, but also means that some voters will have to lose time from work in order to vote. Thus, the number of Indians who turn out is reduced.

Discouraging Indians from Voting:

In 2002, the South Dakota state attorney general, working with the Federal Bureau of Investigation, announced plans to send state and federal agents to question 2,000 newly registered Indian voters. No similar action was taken regarding non-Indian voters and no charges regarding voter fraud were filed. Some Indian leaders felt that this was an attempt to intimidate Indian voters and to prevent them from voting.

Language can also be used to discourage Indians from voting, particularly in states which insist on “English only” and ignore Native languages. In 2008, a federal judge ordered effective language assistance for Yup’ik language speakers in the upcoming Alaska elections. The case stemmed from a lawsuit filed by the Native American Rights Fund and the American Civil Liberties Union on behalf of Alaska natives. The judge ruled that the Alaska Division of Elections should provide pre-election publicity and sample ballots in the Yup’ik language. According to the judge:

“The evidence of past short-comings justifies the issuance of injunctive relief to ensure that Yup’ik speaking voters have the means to fully participate in the upcoming state-run elections.”

In the 2010 elections in South Dakota, the attorney general has ruled that traditional Indian feeds in conjunction with voting are illegal. Aji has described this in more detail in her excellent account of the GOP Attempting to Suppress Native American Vote.

http://www.dailykos.com/story/…

Gerrymandering:

Following the census every ten years, the state legislatures will establish new voting districts which are supposed to reflect the geographic distribution of the population. Many state legislatures have used this process to make sure that very few Indian majority districts are created. Very often, they will divide a reservation into several districts, each of which is a part of a larger non-Indian district. With Republicans set to control a majority of state legislatures, we are likely to see the impact of Indian voting reduced for at least the next decade.

One example of this can be seen following the 1990 census in Montana. In 1996, Blackfeet tribal chairman Earl Old Person and several other tribal members filed a suit, Old Person v Cooney, in which they contended that the voting strength of Indians in the area encompassed by the Blackfeet Reservation and the Flathead Reservation had been diluted by the state’s redistricting plan. In the plan, the Blackfeet Reservation was divided between four house districts and the Flathead Reservation was divided between eight districts which made it difficult to get tribal members elected to the state legislature.

The district court dismissed the complaint, but did note that there had been a history of discrimination against Indians by the state and federal government. On appeal, the decision was reversed, but the court failed to find that the discrimination was purposeful.

Gerrymandering is used not only to reduce Indian representation in state legislatures, but also in local governmental entities. In 1999, the U.S. Department of Justice charged that voting practices in Roosevelt County, Montana were unfair to Indians. While Indians make up more than half of the population of the county there had never been an Indian elected to the County Commission. The voting districts within the county appear to have been drawn to exclude Indians from obtaining a majority in any of the districts. The Northern Cheyenne filed suit against Rosebud County (Alden v. Board of County Commissioners of Rosebud County).

In 1999, the Confederated Salish and Kootenai Tribes filed a suit against the Ronan (Montana) School district (Matt v. Ronan School District 30) charging that school district election practices diluted their voting strength in violation of the Voting Rights Act. As a result of the lawsuit the Ronan-Pablo school board added a new voting district in which Indian voters are the majority.

In 2002, the American Civil Liberties Union sued the City of Martin, South Dakota on behalf of two Sioux tribal members. The suit alleged that the city’s redistricting plan violated Indian voting rights. The city responded by adopting a plan that further fragmented the Indian vote in order to give non-Indians an overwhelming majority in the city which is 45% Indian. In 2006, the U.S. Circuit Court of Appeals ruled that the town of Martin had violated the Voting Rights Act by diluting voting districts that left American Indian voters without political power.