By: Cameron Boster

History of the Dispute

The seven Indian reservations that intersect with Montana’s massive counties face significant problems, including poverty, domestic violence, and obstacles to education. Native electoral representation, a tool essential for fixing these issues, is threatened by the thinly populated, hundred-mile distances between remote towns that stretch on bad roads through wild terrain.

         Distance motivated members of three tribes to file suit in U.S. District Court in Billings, Montana, in 2012. In their complaint, rural plaintiffs from the Fort Belknap, Crow, and Northern Cheyenne Indian Reservations alleged that three counties’ failure to create satellite offices allowing late registration and in-person absentee voting closer to Native population centers was unlawful discrimination under § 2 of the Voting Rights Act. Without satellite offices, plaintiffs argued, voting tribal members were forced to travel hundreds of miles round trip to the county seat, which constituted effective denial of the right to vote.

Wandering Medicine v. McCulloch

Plaintiffs filed twenty-seven days before the 2012 general election, and requested a preliminary injunction requiring the counties to open satellite offices.

The district court denied the injunction, noting that the Wandering Medicine plaintiffs were unlikely to succeed on their § 2 claim. Judge Richard Cebull stated that “§ 2 plaintiffs [had] to prove both unequal access and an inability to elect representatives of their choice,” and that because Montana’s tribal members had experienced recent success in electing candidates in state and local elections, § 2 relief was unlikely.

The plaintiffs appealed the denial. They argued that the district court applied the wrong standard to the § 2 claim. The plaintiffs explained their case was about vote denial, not vote dilution, and that the district judge erroneously applied standards from vote dilution precedent. Inability to elect representatives, they argued, is not necessary for successful vote denial claims under § 2. The United States, filing as amici, echoed the plaintiff’s argument: “The harm from an electoral practice that denies or abridges the equal opportunity to cast a ballot is the loss of the franchise itself, not the dilution of the votes cast in an election. Thus, even in situations where minority-preferred candidates are elected, the presence of electoral practices that deny or abridge the franchise for members of a protected class may still violate Section 2.”

The Department of Justice submitted a Statement of Interest which included the opinion of Professor Gerald R. Webster, a University of Wyoming geography professor. Webster succinctly reduced the disparity in distances to polling places to percentages: in Big Horn County, Native Americans had to drive 189% further to vote than whites; in Rosebud County, 267%; in Blaine County, 322%. Webster also observed the obstacles created by distance were enhanced by Native poverty and lack of access to transportation. In Big Horn and Blaine Counties, Native Americans were twice as likely to be in poverty, and three times as likely to lack access to a vehicle. In Rosebud County, the poverty rate disparity breaks 400%, and Natives are twice as likely to lack access to transportation.

The Ninth Circuit dismissed the case for mootness as the injunction related to the completed 2012 elections and the court could no longer provide the relief requested.

After failing to obtain the injunction, the non-injunction § 2 claims continued at the district court level under a new judge, Judge Donald Molloy. The county defendants moved to dismiss, arguing the plaintiff’s complaint failed to state a claim.

On March 26, 2014, Judge Molloy denied the defendants’ motion to dismiss, finding that the plaintiffs had a plausible § 2 claim. However, he applied the same standard as the previous judge – he explained the plaintiffs still needed to demonstrate an inability to elect representatives of their choice. But Judge Molloy was more skeptical about recent history, citing precedent that explained “the election of a few minority candidates is not dispositive[]” of a plaintiffs ability to elect representatives.”

Ultimately, no opinion on the merits issued; the parties settled the matter on June, 10, 2014.

Terms of the Settlement and Recent Developments

The text of the settlement reveals its limited scope. During the period late registration and absentee voting occurs in Montana, the defendant counties have agreed to open satellite offices at locations on the reservations of the tribal members who were parties to the suit. However, the settlement requires the tribes to provide a suitable location for the office, to indemnify to counties for injuries that occur because of the condition of the location, and to request accommodation from the counties by letter by January 31 of each election year. If the tribes fail to meet these requirements, the settlement terms release the counties of any obligation to provide a satellite office.

Post-settlement, issues persist. Although the terms of the agreement bind three Montana counties to provide satellite offices for three Montana reservations if certain conditions are met, rural Native people in other towns suffer similar problems.

In the second week of September, 2015, the Rocky Mountain Tribal Leaders Council sent a letter to Montana’s Secretary of State, Linda McCulloch. In the letter, the Council asks McCulloch to direct ten counties to establish satellite offices in thirteen towns before the 2015 election. Some of these towns involve tribes not party to Wandering Medicine.

At the time of this writing, it is not clear if the Council is merely requesting the offices, or asserting that McCulloch is bound by law to provide them. Although Judge Molloy’s denial of the counties’ motion to dismiss notes that the Secretary has the authority to direct the establishment of such offices, he mentioned her capacity to do so only to show that the plaintiffs had standing to sue.

The only binding document resulting from the Wandering Medicine litigation was the parties’ settlement agreement. But the settlement is quite limited in scope and does not address the broader problem of rural Native persons’ access to polls. Absent a political solution, Montana’s tribes might be forced to bring another § 2 claim and press for an opinion on the merits. However, that litigation could be difficult, considering the district court’s refusal to recognize a vote denial/dilution distinction urged by the tribes and the Department of Justice.


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