By Scott Meyer

The U.S. Department of the Interior’s Bureau of Indian Affairs website contains a list of frequently asked questions. Among them, “[d]o American Indians and Alaska Natives have the right to vote?” The simple answer, yes, belies the complex relationship between the indigenous peoples of North America, and the United States.

In 1924, the U.S. passed the Snyder Act, which entitled Native Americans born in the U.S. to full citizenship. Ostensibly the 15th amendment, which was passed more than fifty years earlier and granted U.S. citizens the right to vote, combined with the Snyder Act should have allowed Native Americans to vote. In practice, since the Constitution delegated to the states the administration of elections, several decades passed after the Snyder Act before Native Americans actually received national suffrage. The final two holdouts were Utah and North Dakota, which granted “on-reservation Native Americans the right to vote in 1957 and 1958, respectively”. However, even after gaining the right to vote, Native Americans faced many of the same challenges employed against African-Americans to stymie their votes. The passage of the Voting Rights Act (VRA), often associated with protecting African-American voters, also benefitted many American Indians who lived in covered states or counties, such as Alaska and Arizona. For decadesNative Americans filed lawsuits relying on the 14th and 15th amendment and various sections of the VRA to “gainequal access to election procedures and to have an equal opportunity to elect candidates of their choice.”

Fast forward to 2013, the Supreme Court ruled in Shelby County v. Holder that the preclearance coverage formula of the Voting Rights Act was unconstitutional. The preclearance coverage formula was used to determine which state and local governments needed to obtain preclearance from the federal government before implementing any changes to their voting laws or practices. By striking down the formula, the Supreme Court effectively ended preclearance requirements, and, as of 2019, twenty-five states have enacted stricter voting requirements.

The Native American Voting Rights Coalition published a survey in 2018 on the barriers Native Americans were encountering in Arizona, New Mexico, Nevada, and South Dakota. Their findings highlighted the problems Native Americans face: a very high level of distrust in local and state government, the bodies in charge of administering elections; and immense difficulty in registering to vote.

The first of these problems could be expounded upon to fill entire shelves. The latter, however, is likely less well understood. First, Native Americans may lack a residential address. As exemplified by Navajo Nation President Jonathan Nez when discussing Arizona’s voting laws, “[a] majority of Navajo citizens residing on the reservation do not have traditional street addresses. Of the Navajo Nation’s 110 chapters, about 70 of them do not have street names or numbered addresses, which adds up to at least 50,000 unmarked properties.” To give his statement some context, the Navajo Nation consists of more than three hundred thousand citizens and covers more than twenty seven thousand square miles. The Navajo Nation is not unique among reservations in lacking home mail delivery, with many using P.O. boxes instead. This lack of residential addresses also highlights the challenges of mail-in voting for American Indians, something that has been exacerbated by the Covid-19 pandemic. Compounding these difficulties is the fact that Native Americans may not have identification that fulfills voter ID laws. If, for example, a Native American has an ID with a P.O. box, or a nonresidential address, the ID might be rejected.

To see this in action, consider the saga of North Dakota. It passed a voter ID law requiring that voter identification must show a current street address, with P.O. boxes not applying. Initially, a federal judge ruled American Indians had to comply with the tightened voter ID restrictions. However, the law was challenged again in Brakebill v. Jaeger and Spirit Lake v. Jaeger, with the result that the Secretary of the State and the North Dakota Tribes agreed to a settlement to “ensure all Native Americans who are qualified electors can vote, [and] relieve certain burdens on the Tribes related to determining residential street addresses for their tribal members and issuing tribal IDs . . . .” This back and forth between cases is emblematic of Native Americans’ varying levels of success in court.

In addition to continuing lawsuits across the country, Native Americans may find more lasting protection from two pieces of legislation currently sitting in Congress. The Voting Rights Advancement Act aims to “re-establish [the] formula to determine jurisdictions that are required to have their new voting laws precleared.” It passed the House and has been sitting in the Senate since December 2019. The Native American Voting Rights Act of 2019 is meant to “protect the voting rights of Native American and Alaska Native voters.” Its sweeping language includes the creation of a task force to improve Native American voting turnout and participation, as well as addressing voter ID requirements and other difficulties faced by Native Americans. While it has yet to pass the Senate, its success “will help close many of the gaps in registration and accessibility that have persisted in Indian Country . . . .”

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