Indian votes proved critical in North Dakota, where Heidi Heitkamp won a closely contested Senate election with Indian voter support and in New Mexico, where President Obama won, in part, because of high Indian turnout.
This is astonishing in light of the fact that for most of our history, Indians have been denied the right to vote. But in the last 50 years, largely because of the federal Voting Rights Act, Indians have been enfranchised and the effect of their votes are now felt at the highest levels of government.
During the first 180 years of United States history, in many places, Indians were expressly prohibited from voting. Even though Indians were declared by Congress to be citizens of the United States through the Indian Citizenship Act of 1924, this did not mean that Indians were allowed to vote. Indians were prohibited from voting in Arizona and New Mexico until 1948. In Utah, Indians were prohibited by state law from voting until the law was repealed in 1957, only after a case challenging the law was filed in the U.S. Supreme Court.
And just because Indians had the right to vote did not mean that they were allowed to exercise that right in a meaningful way. Non-Indian state officials often adopted laws meant to discourage or suppress Indian voting. For example, in 1972, San Juan County, Utah, made it impossible for Navajo candidates to be placed on the ballot as county commissioner candidates until ordered by a federal court to do so.
Non-Indian state officials also used tactics designed to dilute the influence of Indian votes. County commissioner seats were often elected on an “at-large” basis, ensuring that a non-Indian majority always elected all county commissioners. Or, in places having single-member voting districts, officials created voting districts that diluted the influence of Indian voters, either by “cracking” Indian communities into districts where Indians never formed a majority of the voters or by “packing” most Indian voters into a single district.
Outside Indian Country, these vote suppression and dilution tactics were used against other minority communities, most frequently against African American communities in the South. In 1965, Congress passed the Voting Rights Act (VRA) to halt infringements of minority voting rights. Enforcement of that act in Indian Country has had many successes. For example, before 1983, San Juan County, Utah, used an at-large system for its three-member county commission and no Indian was ever elected to the county commission. In that year, the United States Department of Justice filed a federal court action against the county under the Voting Rights Act, which resulted in the creation of single-member districts and, for the first time, the election of an Indian county commissioner.
Congress has repeatedly reauthorized the Voting Rights Act and has even added provisions designed to get out the Indian vote, such as a section requiring that election materials be provided in native languages (and other non-English languages).
An amendment to that section (drafted and successfully lobbied by one of our Durango attorneys, Peg Rogers), changed the act’s requirements for election assistance in native languages and enabled native language speakers, notably Indian elders, to effectively exercise their right to vote.
The success of the Voting Rights Act is demonstrated by the results of the recent election. But tactics for suppressing or diluting Indian votes have not ended. I recently agreed to serve as lead counsel in a new voting case against San Juan County, Utah, in federal court in Salt Lake City. After each decennial census, voting district boundaries must be changed to reflect population shifts. In San Juan County, despite the fact that Indians now make up more than 51 percent of voting age residents in the county, the county has created boundaries that lock-in non-Indian control of two-thirds of the commission seats and three-fifths of the school board seats. It is unfortunate that litigation is needed to “level the playing field”, but the Voting Rights Act will ensure that the job gets done.
Given its success in enfranchising Indian and other minority voters, it comes as no surprise that the Voting Rights Act is now under assault in the U.S. Supreme Court. A new case, Shelby County vs. Holder, challenges the constitutionality of the act and argues, among other things, that the law is now obsolete. The examples from Indian Country show that this argument is very, very far from the truth.
Steven C. Boos is an attorney with the firm of Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at email@example.com.