Board of Regents of the University of Oklahoma University of Oklahoma College of Law Jim Crow, Indian Style: The Disenfranchisement of Native Americans Author(s): Jeanette Wolfley Source: American Indian Law Review, Vol. 16, No. 1 (1991), pp. 167-202 Published by: University of Oklahoma College of Law Stable URL: http://www.jstor.org/stable/20068694 . Accessed: 30/09/2011 16:37 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org. Board of Regents of the University of Oklahoma and University of Oklahoma College of Law are collaborating with JSTOR to digitize, preserve and extend access to American Indian Law Review. http://www.jstor.org JIM CROW, INDIANSTYLE: THE DISENFRANCHISEMENTOF NATIVE AMERICANS Jeanette Wolfley* Introduction In 1965 Congress enacted the Voting Rights Act, which spurred the black voting rights movement in the South and set the stage for major changes in the national political system. The campaign for equal voting rights spread to Hispanic communities of the rural southwest and urban Indians barrios.1 have taken the path developed by blacks and Hispanics to seek enforcement of the fifteenth amendment by challenging tems devised by towns bordering reservations, election schemes and counties, sys and school districts throughout the West and Southwest.2 Like black and Hispanic voters, Indians have faced intense, and resistance deep-seated racism from the majority community while attempting to gain and exercise the franchise. The Indians' struggle to participate in the democratic process has a unique and complex history which mirrors their long, cyclic relationship with the federal government. Indeed, the history of Indian disenfranchisement reflects a panoply of shifting majority atti tudes, and policies, laws toward Indians. This article examines the ongoing the right to vote and, thus, struggle of Indians to gain a meaningful have to opportunity fully participate in the political process. It will discuss historical and modern ward disenfranchisement and the continued to progress the goal of political equality envisioned by the fifteenth amendment. ? * 1990 JeanetteWolfley General Shoshone-Bannock Former of the Voting Director Tribes; Counsel, and Staff Attorney, Native American 1982, University J.D., Rights Project Rights Fund. of New Mexico; I wish to thank of Minnesota. B.A., 1979, University Jacqueline on previous Powers for their time and comments Williams and Vicki of this drafts article. 1. See Gomez v. City of Watsonville, 852 F.2d 1186 (9th Cir. 1988); Campos v. City of Baytown, 840 F.2d 1240 (5th Cir. 1988). 2. See, e.g., Windy (lawsuit by Crow v. Sisseton Buckanaga 1986) 647 F. Supp. 1002 (D. Mont. of Big Horn, Boy v. County and Northern in Montana); elections Cheyenne against at-large 804 F.2d 469 (8th Cir. Indep. School Dist., 1985) (challenge by to at-large in South Sioux school district Sisseton-Wahpeton 550 F. Supp. 13 (D.N.M. 459 U.S. 801 (1983) 1982), affd, action against reapportionment plan of New Mexico). 167 Dakota); (Navajo Sanchez and Pueblo v. King, voters' INDIAN LAW REVIEW AMERICAN 168 [Vol. 16 and Citizenship Imposition of Naturalization In the past 200 years, federal Indian policy has been a product " Indian of tension between two conflicting responses to the and problem''?separation assimilation. One federal co policy erced Indians to adopt and integrate into the mainstream white majority, while another obstructed their participation in the growing American society. The struggle over Indian voting rights illustrates these two policies. and Naturalization citizenship laws were major mechanisms to facilitate federal efforts to assimilate Indians, obtain Indian lands, and terminate tribal governments. From 1854 to 1924, naturalization and citizenship were the primary devices used to induce assimilation. As this article will show, these federal ef forts were not readily accepted by the majority society and Indians.3 The common objectives of the majoritys' views stemmed from the principles articulated by Chief Justice Marshall in his three landmark opinions, known as the Marshall Trilogy: Johnson v. v. Georgia,5 Nation Cherokee cases tribes treated Indian M'Intosh,4 gia.6 These States 3. See, e.g., In re Heft, v. Nice, 241 U.S. 591 197 U.S. 488, 499-502 v. Geor and Worcester as distinct, independent (1905), overruled sub nom. United (1916). 543 (1823). In this decision, 4. 21 U.S. the Court held as invalid tribal (8 Wheat.) a of land to private that Indians retained individuals. reasoned The Court conveyance The result was by discovering European sovereigns. extinguishable right of occupancy save the a recognition in their lands valid against all parties of a legal right of Indians federal government. 5. 30 U.S. (5 Pet.) 9 (1831). Cherokee v. M'Intosh. set forth in Johnson sovereignty in violation the Cherokees filed in suit the the recognition of Indian expanded to impose its laws on Georgia attempted of treaty provisions. To stop such intrusions, the Cherokee 2 of the United under States Court article III, section Nation Supreme section which in cases and jurisdiction original gives the Supreme Court states and foreign nations. Id. at 7-14. The key issue before the involving was whether a "foreign in the Constitutional the Cherokees constituted nation" determined that they did not. However, deter Marshall Chief Justice Marshall Constitution?a controversies Court sense. a state it was "a distinct international sense; political *' its own affairs and governing of managing itself. was a "in state of pupilage," and "their tribe to his guardian." Id. at 17. that of a ward resembles in the that society Id. at from others, separated capable 16. Marshall noted that the relations the tribe was mined with the United States term, Justice Marshall 515, 528 (1832). The following (6 Pet.) over Indian tribes. Georgia issue of state jurisdiction the unresolved attempted of the State's non-Indians from living on Cherokee lands without permission 6. 31 U.S. addressed to prevent Governor. In a strongly-worded the application law to of Georgia Marshall struck down opinion, Cherokee then, is a distinct lands, stating: "The Cherokee nation, community, occupying in which the laws of Georgia with boundaries its own described, accurately territory, can have no force.'' is the foundation of law excluding Id. at 561. Marshall's opinion a states' law from Indian Country. No. JIM CROW, 1] INDIAN 169 STYLE seen below, As this treatment has since communities. political and of dual citizenship, raised questions competency. wardship, Naturalization a sover In Marshall's Indian tribes possessed understanding, as complete as that of any European nation. After form eignty ing political alliances through treaties with the United States, tribes surrendered their sovereignty but remained sovereigns in used since the early nineteenth the term has been the sense to the General Act of Prior Allotment 1887,8 most century.7 commu of separate considered members Indians were political nities and not part of the state politic or the United States.9 The term to describe is used "sovereign" as a fundamental Court the status of tribal gov by the United States Supreme ernments, and it is acknowledged of modern federal law.10 Despite the Marshall Trilogy, the settlers' demand for Indian lands increased rapidly and forced politicians to develop a policy of removal. West of the Mississippi River lay vast amounts of presumably unoccupied lands; by pushing Indians beyond the river would settlers on embarked government the possess land. of removal was The popularity a so strong that the federal Act Removal of of campaign treaties even before President Andrew 1830.11 Removal was negotiating removal Jackson signed the Indian more than an assault on as recognized in Worcester is best described sovereignty by Felix Cohen: course of judicial decision on the nature of Indian tribal powers to three fundamental is marked Indian by adherence principles: (1) An 7. Tribal The whole tribe possess, in the first (2) Conquest renders the all the powers of any sovereign state, instance, to legislative tribe subject power of the United terminates the external of powers of sovereignty States, and, in substance, to enter the tribe, e.g., its power into the internal does not, by itself, affect power of local self-government, and by express by treaties treaties with but nations, foreign of the tribe, its i.e., sovereignty (3) these powers are subject to qualification save as thus of Congress, but, legislation are vested full powers of internal sovereignty in their duly constituted of government. organs of Federal F. Cohen, Handbook Indian Law 123 (1942 ed. text. 8. See infra note 56 and accompanying expressly qualified, Indian tribes and in the v. Georgia, 1 (1831); The Kansas Nation 30 U.S. Indians (5 Pet.) 737 (1866); United States v. Kagama, 118 U.S. 375 (1886). (5 Wall.) In modern are the Supreme Court has held that tribal governments times, over both their members attributes of sovereignty and possessing aggregations 9. See Cherokee 72 U.S. 10. "unique their territory." States v. Wheeler, 435 U.S. 313 (1978). ? 174 (1988)). The (current version of ?? 7-8 at 25 U.S.C. to exchange Jackson River territory west of the Mississippi see F. Cohen, of tribes. For further discussion, Handbook lands of eastern Indian Law 78-92 (1982 ed.). Act for See, e.g., 148, 4 Stat. authorized President 11. Ch. the Federal United 411 170 INDIAN LAW REVIEW AMERICAN that the removal policy was believed Indians; many [Vol. 16 the only means of saving Indians from extermination. Removal eventually served to promote albeit assimilation assimilation, by separation. In conjunction with the federal created removal, government a strategy which to the reservation, Indian tribes sought change socially, politically, and Instead economically.12 of their tradi tional tribal leadership, most tribal members found themselves subject to the authority of white agents from the Bureau of saw the reser Affairs reformers many (BIA). However, as cultural as or ob others economic failures failures; to progress. For example, railroads were accelerating their lands and cattle demand for Indian ranchers made similar de mands. not working, With the reservation reformers policy clearly Indian vations stacles it and launched a triple assault on Indian sovereignty: abandoned of a federal the creation the extension of federal tribal lands.15 school for Native Americans,13 system and the allotment of laws to Indians,14 By splintering the reservations and distributing the land in allotments to individual Indians, the reformers hoped to destroy to European-Amer Indians tribal economic power and assimilate was It when tribal eco commercial values. intended that ican was would also nomic tribal power eliminated, power political the reformers would then United States wane; grant citizenship to allotted Indians. federal of Indians would Thus, supervision The reformers believed economic self-suf become unnecessary. was to the solution and assimilation ficiency, legal subjugation, the "Indian problem." Most reformers agreed and a structured lution, United roads, Some oil manded award assimilation an education, States citizenship were the most it about. reformers wanted immediate placement of 12. See citizenship, ch. 85, 3 Stat. and 516 (1819) policy, (current rail immediately: cattle ranchers of tribal version of land. ? 1 at de in schools, Indian children allotment so and effective ways to bring and of the ultimate allotment assimilation homesteaders companies, was that Other re ? 271 25 U.S.C. (1988)). in the early days. schools 13. Education for Indians was by mission provided In the schools were established. in the late 1870s, off-reservation boarding Beginning of assimilation schools were the ideal method off-reservation eyes of reformists, boarding on Subcomm. removed from their families. See Special because Indian youth were A National Tragedy-?A Indian Education, 140-52 (1969). 91st Cong., 1st Sess. American Indian 14. See F. Prucha, 15. See infra text accompanying notes National Policy 16-17, Challenge, In Crisis 44-50, & 328-41 57-60. S. Rep. (1976). No. 501, No. insisted and citizenship formers on a more prepared for both. Between dians vacillated toward In 1880 and 1934, policy extremes. these between that emphasized approach an Indian was culturally gradual only when allotment 171 STYLE INDIAN JIM CROW, 1] Congressional efforts to naturalize entire tribes generally fell short of their intended goal. For example, from 1839 to 1850, Indians were and Wyandot the Stockbridge-Munsee, Brotherton, to them citi efforts make with incessant congressional plagued was made In other zens.16 attempts, citizenship congressional an of the allotment of land; the upon acceptance dependent an allotment was to accepting removal from native alternative lands.17 were who Indians were barred action not European immigrants; This jects or nationals.18 by United The by congressional to process open as domestic sub status was reiterated granted citizenship the naturalization Indians were regarded from of concept Indian States Attorney General Caleb Cushing fact, therefore, that Indians are born in 1856:19 in the coun try does not make them citizens of the United States. The simple truth is plain, that Indians are subjects of are not, in mere therefore of the United States. the United and States, of home-birth, citizens right un But they cannot become citizens by naturalization acts acts der existing of Those apply general Congress. to foreigners, of another In The subjects allegiance. dians are not foreigners, and they are in our allegiance, without being citizens of the United States. Moreover, ' those acts only to apply 'white" men. 16. See Act of Mar. Act of Mar. 3, 1839, ch. 83, 5 Stat. 349, 351 (Brotherton); Act of August 3, 1843, ch. 101, ? 7, 5 Stat. 645, 647 (Stockbridge); 6, 1846, ch. 85, 9 Stat. 55 (Stockbridge); Feb. 23, 1867, art. 13, 15 Treaty with the S?necas [and Others], Stat. 513, 516 (tribal signatories the S?necas, included and Wyan Shawnees, Quapaws, to Wyandots 13 of the treaty with the S?necas prohibited tribal membership dots). Article who had found 17. See Pottawatomies, 1868, United 27, to United under a prior treaty unless States citizenship they were the responsibilities of citizenship." Id. with the Pottawatomie Feb. States Indians, 27, 1867, United Treaty art. 6, 15 Stat. 531, 531-33; Treaty with the Sioux 29, Indians, Apr. art. 6, 15 Stat. 635, 637; Treaty with the Choctaws, States-Sioux, Sept. consented "unfit for 1830, United States-Choctaws, 18. See In re Camille, 6 Fed. arts. 14, 16, 7 Stat. 333, 335-36. 1 Alaska (C. Or. 1880); In re Burton, of the deep-seated held racism example 256 is a prime 1900). Camille and certainly whites, by the judiciary, 746 (1856). 19. 7 Op. Att'y Gen. Alaska against nonwhite persons in the late 111 (D. by many 1800s. 172 AMERICAN INDIAN LAW REVIEW [Vol. 16 Indians, of course, can be made citizens of the United States only by some competent act of the General a treaty either Government, or an act of Congress.20 In the early citizenship case of Scott v. Sanford*1 (the Dred Scott Case), the Supreme Court held that a black person could not a become citizen under the Constitution.22 The Supreme in dictum, that Indians were not citizens, in the but that natu had the to sense, power Congress Court stated, constitutional ralize Indians.23 Thus, the Dred Scott Case effectively concluded that were who Indians to prove unable were they States jurisdiction24 were precluded United born under from registering to vote. Although did eventually naturalize all Indians, be Congress the Reconstruction fore were the Era25 restricted to European naturalization general laws immigrants and did not include In 1868, 1 of Indians.26 section the fourteenth as defined "all persons born or natural citizenship native-born amendment ized in the United States, and subject to the jurisdiction thereof, are of citizens Id. 20. the United . . . ."27 States at 749-50. 21. 60 U.S. (19 How.) 393 (1857). 22. at 403-04. Id. Act Rights 23. 24. notorious was decision 1866, ch. 31, ? 1, 14 Stat. 27, 60 U.S. at 403-04. Scott, (19 How.) See infra note 29 and accompanying 25. After Confederate guaranteeing 428. Stat. guarantees servitude." This of the Civil War, in order States, male the First to without suffrage 26. See Act or other foreign Const, by the Civil text. Reconstruction Act of 1867 mandated to adopt the Union, had to race. Act of Mar. 2, regard the fifteenth amendment adopted reenter Subsequently, Congress to vote the right irrespective U.S. overridden legislatively 27. of "race, or color, new 1867, in previous that the constitutions ch. 14 153, 1870, which condition of XV, ? 1. 153. Indians born in Canada, 14, 1802, ch. 28, 2 Stat. Mexico, did not become for citizenship until the adoption of eligible amend. of Apr. countries the Nationality Act of 1940, ch. 876, ? 303, 54 Stat. 1137, 1140, superseded by Act of June 27, 1952, ch. 477, ? 301, 66 Stat. 163, 235 (codified at 8 U.S.C. ? 1401 (1952)), because limits of the Citizenship the United Act of States." 1924 referred Act of June only 2, to "Indians 1924, v. California, 291 U.S. 82, 95 n.5 (1934). 27. U.S. Const, amend. XIV, ? 1: All persons born or naturalized in the United ch. 233, born within 43 Stat. the territorial 253, 253. Morrison thereof, jurisdiction wherein they reside. are citizens of the United to the and subject States, and of the state States state shall make or enforce No shall any law which or immunities the privileges of citizens nor of the United States' abridge shall any state deprive of life, liberty, or property, without any person due process of law; nor deny to any person within its jurisdiction the of the laws. equal protection See No. of the some of the amendment, passage Following "all phrase 173 erroneously thought qualified for United States citizenship be Indians automatically cause INDIAN STYLE JIM CROW, 1] and persons," were Indians because not explicitly excluded. This dispute prompted the Senate to instruct the Senate Judiciary Committee to inquire into the status of the amendment.28 under Indians In December, 1870, the Senate Judiciary Committee reported their tribal relations were not that Indians who maintained the fourteenth under citizens amendment. Therefore, could they not be said to have been born under the complete jurisdiction of the United States.29 The Committee had the view that citi zenship was incompatible with continued participation in tribal or government tribal That property. is, citizenship required af firmative consent to jurisdiction of the United States. The report stated: To maintain that the United States intended, by a change of its fundamental law, which was not ratified by these tribes, and to which they were neither re nor quested to permitted to assent, annual treaties then existing between the United States as one party, and the Indian tribes as the other parties respectively, would be to charge upon the United States repudiation of national obligations, repudiation doubly infamous claims were from the fact that the parties whose are too weak to enforce their just rights, annulled were the voluntarily enjoying and of protection thus and assumed guardianship this Government.30 One year later, an Oregon district court agreed with the Judiciary Committee and held that Indians born in tribal allegiance were not persons born in the United States and thus subject to its court The jurisdiction.31 stated: To be a citizen of the United a birth, person must not States by reason of his be only born within its territorial limits, but he must also be born subject to its jurisdiction?that is, in its power and obedi . . . But ence. the Indian tribes within the limits of the United States have always been held to be distinct 28. Cong. inquiry). 29. 30. Rep. Sen. Id. Globe, at 31. McKay No. 2d 41st Cong., 268, 41st Cong., Sess. 2479 3d Sess. (1870) 1-11 (text of the (No. 8840). (1870). 11. v. Campbell, 16 F. Cas. 161 (D. Or. 1871) resolution of 174 INDIAN LAW REVIEW AMERICAN and independent political of right though tecting power of the United was sustained position Court naturalization preme a torturous Elk represents This constitutional amendments retaining the communities, self-government, [Vol. 16 to subject the pro States.32 United States Su by a subsequent v. Elk Wilkins.33 case, of state statutes and interpretation in order to prevent Indians from voting. John Elk left his tribe and resided in Omaha, Nebraska. He to attempted exercise in upholding Court, that he was not his to vote right in Nebraska. the denial of his right to vote, an American citizen because his intent The reasoned to become a citizen required a positive and specific response from the United States before it could affect his status as a citizen.34 The Court further concluded that the fifteenth amendment did not apply to Elk, nor was he a United States citizen because he did not owe allegiance to the United States.35 A final reason for denying the right to Elk was that the United States had statutes entered into treaties and enacted and after the (before fourteenth tribes and por amendment) naturalizing particular tions of tribes.36 Therefore, the federal had other government means of Indians. legislative naturalizing The majority opinion chose to disregard that Elk had severed relations with his tribe.37 The Court construed section 1 of the as amendment fourteenth a person requiring a citizen deemed by birth to be subject to the ordinary jurisdiction of the United States at the time of birth.38 Since Elk was born to a tribal member who lived on tribal land, he was not a citizen by birth. 32. at Id. 33. 165-66. 112 U.S. 94(1884). at 109. 112 U.S. 34. Elk, 35. Id. at 99. The Court not "Indians taxed," to deny also the on relied the fourteenth to Elk. franchise amendment 2 of Section ment shall be apportioned among provides: "Representatives their respective the whole numbers numbers, counting not Indians taxed." U.S. Const, amend. XIV, excluding the several to similar when is found elsewhere provision the phrase ? 1 was codified, in the Constitution. "Indians not taxed" phraseology, the fourteenth amend States according in each state, persons A ? 2 (emphasis added). art. I, ? 2, cl. 3. In 1926, of Id. was deleted. See 8 U.S.C. ? 1 (1926). 36. Elk, 37. Elk federal 38. 501, 108-09. Indian Country within Nebraska and was subject to state and taxation. Id. the effects F. at 112 U.S. lived outside 523 See of also United tribal membership (7th Cir. 1915). States on v. Osborn, citizenship, 2 F. 58 (D. Or. see Katzenmeyer 1880). For v. United a study States, of 225 No. JIM CROW, 1] INDIAN 175 STYLE The Elk dissenting opinion by Judge Harlan is better rea soned.39 The dissent points out that the legislative history of the those demonstrates the drafters understood amendment to such as Elk, who were citizens considered pursuant to the four l.40 The dissent further that argued prior fourteenth Indians, section teenth amendment Congress had granted citizenship to many Indians who abandoned their tribal ties.41 The dissent also noted that the 1870 Senate Judiciary Committee report supported In dian under citizenship the fourteenth and amendment, that the report closes with this significant language: "It is to say, pertinent in concluding this that report, treaty relations can properly exist with Indian tribes or Nations only, and that when the members of any Indian tribe are scattered, are they merged in the mass our of people and become equally subject to the jurisdiction of the United States."*1 To the advocates of immediate citizenship, the Elk decision was an outrage.43 An was acculturated farmer English-speaking to European-American and Elk cer family man, and was society tainly deserving of citizenship. Something had to be done, and the advocates for gradual were citizenship into merging pressured the question of Indian citizenship with their drive for the allot ment of tribal lands. Following Elk, the legal status of Indians represented a state nor aliens; to civil law: Indians were neither citizens not white under the naturalization laws, or slaves, or in a previous condition of servitude.44 persons Barring special or a constitutional Indians acts, many treaties, amendment, to exist in a legal vacuum. appeared unknown they were Indian Citizenship John Although Elk was dians were naturalized 39. Elk, 112 U.S. Id. at 117-J8. 40. 41. Id. at 115-16. 42. Id. at 119. at 112-19 Significantly, never thousands naturalized, from the mid-1850s J., dissenting). (Harlan, the majority ignored of In through the early the legislative history. In an Asian-American naturalization States v. Wong Kim Ark, case, United the Supreme Court found that Indians were not citizens. again The Court from its theory of citizenship of Indian tribes excepted by birth "members of which to their several owed immediate tribes and were not part of the allegiance . . . ." Id. at 662 (dictum). of the United States people 44. The status of Indians was overshadowed at the end of the Civil War by the 43. 169 U.S. discussion equal 649 and to whites. (1898), efforts for blacks to gain freedom, citizenship, and economic conditions AMERICAN INDIAN LAW REVIEW 176 1900s. By allotments accepting and the leaving [Vol. 16 or reservation tribal society, Indians were rewarded with citizenship. By 1924, nearly two-thirds of all Indians were granted citizenship by or treaties and special statutes.45 general Treaties and Special Acts The southeastern tribes were the first to receive citizenship through their treaties with the United States.46 In some treaties, citizenship was dependent on acceptance of an allotment of land in severalty.47 Indeed, inElk, the Court identified twelve treaties, four statutes, four judicial opinions, and eight attorney general opinions that required "proof of fitness for civilization" before an Indian could obtain citizenship and the right to vote.48 were tribes Many naturalized by statute. special In the cases of the Stockbridge and Brotherton Tribes of Wisconsin, the tribes were dissolved and land distributed to the members. Once was allotment the complete, Indians became citizens.49 Citizen ship was also premised on the requirements that Indians adopt learn to read and speak English.50 the habits of "civilized'life": Another general act granted citizenship to Indian women who white married men.51 In 1890, as an enticement to members of the Five Civilized Tribes52 to abandon their tribal relations, Congress passed the Indian Territory Naturalization Act.53 The Act provided Indian Voting See D. McCool, with the Cherokees, July 156, 159; Treaty with the Cherokees, 106 (1985). 45. 46. Stat. art. 8, 7 8, 1817, United States-Cherokees, Feb. 27, 1819, United art. States-Cherokees, the Choctaws, States-Choctaws, Sept. 27, 1830, United Treaty 2, 7 Stat. 195, 196; Treaty with art. 333, 335. See F. Cohen, supra note 14, 7 Stat. on tribes and individual Indians. citizenship conferring 8, at 153 nn. 6-10, for treaties June 28, 1862, art. 3, 13 Stat. 623, 624; Treaty See Treaty with the Kickapoos, Feb. 23, 1867, art. 13, 15 Stat. 513, 516 (treaty between the S?necas [and Others], and others). the United States and the S?necas, Shawnees, Wyandots Quapaws, at 100. 112 U.S. 48. Elk, 47. with See Act 49. of Mar. 3, ch. 1839, 5 Stat. 83, 349, 351 (Brotherton); Act of Mar. 3, 1843, ch. 101, ? 7, 5 Stat. 645, 647 (Stockbridge). 50. Act of Mar. 3, 1865, ? 4, 1888, ch. 13 Stat. 541, 562. See Oakes v. United States, 172 F. 305 (8th Cir. 1909). 51. Act of Aug. 52. The Semin?le, 9, Choctaw, 818, 25 Stat. 392. Cherokee, Chickasaw, and Creek Nations. 53. Act of May 2, 1890, ? 43, 26 Stat. 81, 99-100. The Five Civilized Tribes to their people because it would the grant of federal they feared citizenship Doc. No. See S. Misc. 2d Sess. (Dec. their tribal government. 7, 45th Cong., from the General the Five Civilized Tribes were excluded (vol. I). Significantly, opposed terminate 1877) Allotment Act of 1887, ?? 6, 8, 24 Stat. 388, 390-91. No. INDIAN JIM CROW, 1] of any member [t]hat Indian any 111 STYLE or nation tribe re siding in the Indian Territory may apply to the United States court therein to become a citizen of the United States, and such court shall have jurisdiction thereof shall and hear determine and such as pro application vided . . . [t]hat the Indians who become citizens of the United States under provisions of this Act do not forfeit or lose any rights or privileges they enjoy or are to as members entitled which they The Act of the tribe or to nation belong.54 to statutes is similar enacted for tribes.55 Also, specific more than any other federal legislation, it implies that Indians hold dual citizenship. However, it also reaffirms the potential incompatibility between tribal membership and United States citizenship. The Allotment Period In 1887, Congress passed the most disastrous Indian legislation in United States history: the General Allotment Act of 1887 (GAA).56 The GAA had dual goals of opening Indian lands for white and settlement57 Indians assimilating so into mainstream ciety.58 Assimilation was accomplished by imposing citizenship upon two classes of Indians: (1) those to whom allotments were made by the GAA, or any law or treaty, and (2) those who voluntarily lived apart from their tribes and "adopted the habits of civilized life."59 Under the first instance, was citizenship of May 2, 1890, ? 43, 26 Stat. 81, 99-100. e.g., Act of July 15, 1870, ? 10, 16 Stat. could apply to the federal district Winnebago automatic at the 54. Act 55. Minnesota of Mar. Act this act, a 335, 361-63. Under court for citizenship. See also See, 3, 1873, ? 3, 17 Stat. 632. 631, 56. Ch. 199, 24 Stat. 388 (codified at 25 U.S.C. ?? 331-34, 339, 341-42, 348 (1982)) [hereinafter Act. This GAA], legislation is also as Dawes known Act Severalty or the Dawes 57. "[T]he most force motivating the allotment the pressure powerful policy was on H.R. western settlers.'' History land-hungry of the Allotment Policy: Hearings on Indian Affairs, 7902 Before the House Comm. 23d Cong., 2d Sess. 9 (1934) (statement of of D. Otis), quoted in D. Getches, D. Rosenfelt & C. Wilkinson, Federal Indian Law 71 (1979)). must for 58. Representative be broken up" the Indians. 59. GAA, Every whom Skinner, House and the "example 18 Cong. Rec. 190-91 sponsor of of the GAA, the white (1886). 119, ? 6, 24 Stat. 388, 390. Indian born within the territorial Section allotments under ch. shall have been made limits people" said that "tribal would provide 6 provided: the United of the provisions of relations a model to States, this act, 178 AMERICAN INDIAN LAW REVIEW [Vol. 16 end of the twenty-five year period in which the allotment was held in trust by the Secretary of Interior. However, some tribes had their period of trust status extended by legislation or ex so it became to determine a ecutive difficult who was order, United States citizen and who was not. This allotment require as a per ment that citizenship, actually meant long recognized was sonal right of an individual, of the status really a function of the real estate the Indian might possess. Citizenship increased rapidly after the passage of the GAA. By 1890, citizenship had been extended to 5,307 Indian allottees, and by 1900, to 53,16s.60 In 1901, Congress awarded citizenship to another 101,506 Indians in Indian Territory, and by 1905 more than half of all Indians had become citizens.61 President Theodore Roosevelt aptly described the GAA as "a mighty pulverizing engine to break the mass."62 up During this allotment period (1887-1901), among many Indians a ceremonial the recognition of United States citizenship became event: It symbolized the Indian traditions and away casting the beliefs customs and values and assuming of the majority a man involved his ceremony society. One citizenship "shooting last arrow" and taking hold of the handles of a plow to dem an American to become his intent citizen.63 Another an Indian woman a workbag and purse ritual involved accepting to hold money from earned labor and "wisely kept."64 onstrate the trust status of Indian land amended the GAA by enacting Interest in further altering continued. In 1906, Congress the twenty-five the Burke Act, the Burke Act.65 Under year trust a citizen upon and an Indian became the period was eliminated of the fee patent was made issuance of a fee patent. Conveyance after the Commission or under United such any ... treaty, to all entitled law or and States of Indian Affairs determined an allottee to be a citizen of is hereby declared the rights, privileges, and immunities the of citizen. GAA, ? 6. 60. J. Olson [hereinafter (1984) 61. Id. Native & R. Wilson, Olson & Wilson]. Rec. 62. 35 Cong. 63. V. Deloria, Id. at 143. 64. 65. Act The Act was of May named 90 Jr., Of Americans (1901) (message Good Utmost 8, 1906, ch. 2348, after its sponsor, in the Twentieth Theodore by President Faith 142-43 (1971). 34 Stat. 182 (codified Charles Congressman 73 Roosevelt). at 25 U.S.C. Burke Century ? 349 (1988)). of South Dakota. No. 179 STYLE INDIAN JIM CROW, 1] his or her was made was of managing and capable "competent of citizenship the ..."** fairs. granting Again, on severance ties.67 tribal of pendent af de Period The Post-Allotment Prior to World War I, Woodrow Wilson's Secretary of In terior, Franklin K. Lane, identified the political potential of the Indian New Mexico, in the Dakotas, Arizona, particularly states with other and Oklahoma, large num relatively voter, Montana, bers of Indians.68 Secretary Lane urged the Democratic Party to seek to register Indian voters for the 1916 national election. in the western whites Most states were, however, hostile quite to the idea of Indians as voters, even though Indians would have been participating only in federal elections.69 In addition, both the Harding and Coolidge Administrations were cognizant of the political potential of the Indian voter and moved toward increasing Indian participation in the political decision-making process by seeking Indian involvement in the Republican Party.70 Meanwhile, during World War I Congress had again at to the issue of Indian citizenship. After the resolve tempted United States entered the war, thousands of Indians volunteered the armed for forces and for in the work support states. Iron ically, these volunteers included individuals whose tribes had been fighting the United States Army as recently as thirty-five As earlier.71 years a of result the Indian response, it became apparent to the federal government that it would finally have to respond to the ambiguity of the legal status of Indians.72 In 66. 25 U.S.C. ? 349 (1988). 67. See United States 68. See F. Svensson, v. Debell, 227 F. 760 (D.S.D. 1915). in American American The Ethnics Politics: Indians 24 25 (1973). at 25. 69. Id. 70. Id. 71. Id. The a nation, and States as citizenship citizenship the future. in an effort to reassert its autonomy and independence Iroquois League, war on Germany in 1917, separately from the United declared as one the status of the Allied Nations. Additionally, during to grant them debates of the early 1920s, the Iroquois protected any attempts formally claimed and declared that they would not accept citizenship if Congress granted it in was 336,000. In 1918, it was reported that the Indian population less Though at that than 7,000 served in the armed forces. Also 109b were military age, more and less than half were 30% of all Indians could read and write English only 72. than time citizens. 123. Peterson, Native American Political Participation, Annals, May 1957, at 116, 180 INDIAN LAW REVIEW AMERICAN [Vol. 16 1919, Congress declared that all Indians who had served in the armed forces and received honorable discharges American upon citizenship application.73 would be granted Yet again, the citizenship question was caught up in a conflict of responses ship final men New the majority among Some society. favored citizen on moral grounds, while others viewed citizenship as the step to integrating Indians into the main society. Congress such as Edgard Howard of Nebraska and Gale Stalker of York, were interested in ending the trust status of Indian lands and advocated blanket immediate citizenship.74 Stalker and Howard introduced citizenship bills in 192375which encountered immediate hostility from factions who favored gradual assimi lation and preservation to retain their tribal of Indian status.76 lands and Indians who wanted The Indian Citizenship Act of 1924 Out of these conflicting points of view came compromise legislation. In 1924, Congressman Homer P. Snyder of New York introduced House Resolution 6355, authorizing the Sec retary of the Interior to grant citizenship to all Indians who requested it, if they were "individually prepared" for the re sponsibilities.77 In addition, the Senate Committee on Indian a blanket immediate citizenship full-blood Indians and whites who out of Congress assimilation. Finally, Affairs proposed was opposed by about rapid law,78 which were skeptical the emerged Indian Citizenship Act,79 which states [t]hat all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided that the granting of such citizenship shall not in any manner impair or otherwise affect the right of an Indian 73. See Act 74. Olson 75. Id. 76. Id. 77. Id. 78. Id. of a Kaw Representatives served as U.S. 80. Oct. 14, (1940)). 163, 235 of Nov. & Wilson, 6, 1919, supra property.80 ch. 95, 41 Stat. note 60, at 84. 350. at 85. 79. Act Curtis, or other to tribal B. drafter was Charles 1924, ch. 233, 43 Stat. 253. The Act's in the United from Oklahoma, who served States House of and the United States Senate Curtis (1893-1906), (1907-13; 1913-1929). vice president Hoover 1929-1933. under Herbert from June 2, Indian of this Act was into the Nationality Act of incorporated at 8 U.S.C. codified ? 201, 54 Stat. 1137, 1138 (formerly ? 601 in 1952 by the Act of June 27, 1952, ch. 477, ? 301, 66 Stat. superseded as amended at 8 U.S.C. ? 1401 (1952)). (codified Id. The 1949, It was substance ch. 876, 1] The Indian Citizenship Act between The INDIAN STYLE JIM CROW, No. citizenship of question and 181 ended the relationship effectively or federal affiliation one is a complex tribal citizenship protection.81 for Indians. Many Indians either had no interest in it or else actively sought to reject it. Some have challenged citizenship by refusing to vote in federal and state elections or denying their United States citizenship and strongly asserting tribal sovereignty. Also, tribes have issued tribal passports in place of United States passports.82 The Justification by States inDenying Indians the Franchise An important premise flowing from the United States Con stitution is that no one is granted the right to vote. Rather, the ' states amendment fifteenth be no that citizen's account of race, or previous color, right to vote shall States or any state on 'denied or abridged by the United condition second implication of the Constitution of servitude."83 a state matter; that is, states shall entirely and manner" of holding elections.84 places "the times, prescribe states had the Thus, control over whether Indians could exercise their franchise. Indians were granted United States citizenship Although state 1924, were doubts not A is that franchise is almost states Most appeased. continued in to refuse to recognize Indians as citizens of the state in which they resided. Other states' officials devised laws to limit Indians' access to the ballot box. The unwillingness of states to allow Indians to vote was no surprise given the history of conflict and Indian between antagonism tribes states. and The often-quoted language of the Supreme Court in 1886 summed up the tribal state political relationship: "They [tribes] owe no allegiance to the States and receive them from no protection. Because of the local ill feeling, the people of the United States where they are found are often their deadliest enemies."85 81. Opponents of Indian rights continue to question the dual status of Indians. See text. The 83-163 and accompanying have held the Act courts, infra notes however, nor conditioned neither affected the trust relationship it upon the severance of tribal ties. See United U.S. U.S. v. Wright, v. Nice, States States (1932); United 528 (1914); Hallowell 82. See F. Svensson, the state-tribal regard Indians contend that over state jurisdiction American Participation v. United supra Indian Const, amend. 84. U.S. Const, art. States 285 300, 306 (4th Cir. 1931), cert, denied, v. United 591 (1916); Bowling 233 States, 221 U.S. 317 (1911). States, and how some Indians 68, at 26. Tribal sovereignty 241 U.S. inhibits in state reservations. in South 83. U.S. 85. United note relationship their voting 53 F.2d XV, 1, ? 4. v. Kagama, Dakota's full elections participation would be See U.S. Comm'n Political System ? 1. 118 U.S. 375, 384 in state politics. Some an acknowledgement of on Civil Native Rights, (1886). 19-21 (1981). 182 AMERICAN Indian [Vol. 16 is evident still today. As noted in a recent New This hostility Mexico INDIAN LAW REVIEW voting case: rights "We an abiding note sentiment among the Indians of New Mexico that the state is an enemy of the tribes. In states with a significant number of Indians, are disputes between of respective spheres tion."86 there their tribal and as state New authority. governments Mexico is no to excep States have five basic arguments in justifying the denial of voting rights to Indians: (1) failure to sever tribal ties makes Indians ineligible; (2) "Indians not taxed"; (3) Indians are under guardianship; (4) reservation Indians are not residents; and (5) tribal sovereignty ernments.87 precludes participation in state and local gov Failure To Sever Tribal Ties of Abandonment Indian traditional culture was once a pre requisite for participation in some state politics. The Minnesota Constitution once granted citizenship only to those Indians who customs the language, and habits of civiliza had "adopted or South Dakota also prohibited Indians from voting tion."88 con The tribal relations."89 office "while holding maintaining of Idaho and North lan stitutions Dakota contained similar guage.90 the votes of In Swift opponents. In 1920, by in North Dakota Indians v. Leach,91 the North were Dakata challenged Supreme Court considered whether 273 Indians of the Standing Rock Sioux Tribe were eligible to vote under article 5, section 121 of the North Dakota Constitution.92 Section 121 provided that: v. King, No. 82-0246 86. Sanchez 82-0180-C, 82-0067-M, 2-0084-C, 82-0219-JB, of Fact, Conclusions of Law). 8, 1984) (Findings Aug. slip op. at 27 (D.N.M. as "constitutional 87. These have been categorized ambiguity, political justifications D. McCool, Indian and racial discrimination." and cultural economic factors, JB, and Voting Price 106 (1985). See also M. five arguments: fear of political conduct, analyzed Indian residency. 88. Minn. 89. ties S.D. remained 90. 92. shifting of Indian majorities, art. VII, ? 1, cl. 4 (1857, repealed 1960). Laws Ann. law requiring ? 92 (1929). This the books until 1951. guardianship, and Const, on Idaho Swift, control Codified (1889, repealed 91. 45 N.D. the proposition v. Hall, Porter Indian 229-37 Law and the American Price, (1973). severance over of tribal relations, lack of state power Const, art. VI, ? 3 (1890, repealed 1950); N.D. severance Const, of art. V, tribal ? 121 1922). in favor of 178 N.W. 437 (1920). Swift has also been 437, rejected of Indians disqualifies Indians as electors. See that federal guardianship 34 Ariz. 308, 271 P. 411, 412 (1928). 178 N.W. at 438. No. INDIAN JIM CROW, 1] STYLE 183 of the age of twenty-one years or to either of the classes, following upwards, belonging in the state one year and resided in who shall have six months, the county and in the precinct ninety days male Every person shall be a qualified elector at next preceding election, such election: . . . Civilized of persons Indian descent who shall have severed their tribal relations two years next such preceding election.93 the Indians were eligible to vote, the In determining whether of numerous reviewed testimony a county the local Indian agency, court of witnesses judge, (superintendents and other county officials) who testified that the "trust patent" Indians had severed tribal ties.94One superintendent of the Fort Yates Agency testified on behalf of the Indian voters by stating: [T]he Indians have ceased to live in bands under a . . .their chief; educational fa compare qualifications vorably with white people; they marry the same as white people; have fixed abodes, they live as white they are competent people; and their knowledge white average man; to handle their own they have affairs, is as good of English severed their as the re tribal lations and adopted the mode of civilized life and are well citizens to become qualified In the testimony sum, emphasized to the loyal government, majority of that rather this state.95 were voters the Sioux than their tribe. The county argued that (1) the Indians were not civilized, (2) they could not sever their tribal ties without federal consent, and (3) they were under guardianship and, thus, ineligible to vote.96 Indians In rejecting these arguments, were under section electors because they had "adopted of life of civilized 93. N.D. Const, 94. Indians received Swift, because fee persons."97 art. V, ? 121 (1889, at 438-39. The amended received allotments Indians of 1898 & were land under 1920, repealed 1922). to as "trust referred patent" the Burke Act but not had yet titles. 95. Id., 178 N.W. at 439. 96. Id., 178 N.W. at 440-41. 97. at 178 N.W. Id., in Osborn, occurred relation and observed the habits and mode 178 N.W. they the court found that the 21 of the state constitution 443. A in which similar inquiry the defendant abandonment regarding was charged with selling of tribal liquor to 184 INDIAN LAW REVIEW AMERICAN Not "Indians [Vol. 16 Taxed" not taxed" was "Indians used in state frequently to exclude statutes Indians from voting, and The phrase constitutions and is found in the U.S. Constitution.98 It has been utilized as an economic argument that Indians should not be permitted to vote or participate in revenue because decisions, i.e., bond elections, some not states do taxes.99 have main pay Additionally, they over an tained that if the state government has no taxing power Indian reservation, then Indians should not be able to participate in the election of state officials. The 1917 decision of the Minnesota Supreme Court in Opsahl v. Johnson100 typifies these views. In Opsahl, the court denied members of the Red Lake Chippewa Tribe the right to partici pate in county elections because the Indians had not "yielded and obedience to submission to taxation as were concluded, it would to allow stated: Indians It cannot of state other laws."101 [Minnesota] Indians were not subject The court reasoned that Minnesota residents.102 be inconsistent with the to elect right for a moment the Constitution representatives.103 be considered intended Therefore, the court the state constitution that The court the Framers to grant the right of no obligation to persons who were under to suffrage as a result of such grant. Or, the laws enacted obey in other words, that those who do not come within of the laws of the state, nevertheless the operations to make shall have and laws upon power impose an was declared even to be under The purchaser-Indian federal Indian. supervision his Warm for fifteen years. The federal Springs Tribe though he had not lived among a citizen of the United court found that "an Indian cannot make himself States without the consent and cooperation (D. Or. 1880). Const, art. 98. U.S. 99. on of the government." United States v. Osborn, 2 F. 58, 61 ? 2. 1, ? 2; id. amend. XIV, a variety state and tribal. of taxes?federal, Indians living not generally to non also have tax exemptions applicable Indians pay Today, certain Indian reservations Indians. 100. 138 Minn. 163 N.W. 101. Id., at 991. 42, 163 N.W. 988 (1917). the state, the court declared, "The tribal Indian contributes nothing or to the process to taxation, is not subject of its courts. He property none none and performs of the duties bears of the burdens of civilization, of the at 990. 163 N.W. citizens." Id., 103. Id. 102. Quoting to the state. His No. JIM CROW, 1] INDIAN 185 STYLE to our The idea is repugnant others. ment. No one should participate he need not obey.104 form of in the making govern of laws In 1940, five states (Idaho, Maine, Mississippi, New Mexico, and Washington) still prohibited "Indians not taxed" from even voting,105 were not taxed. to whites the franchise who they granted states not want to did Indians simply in revenue decisions participate financial though These that they determined on non-Indians burdens imposed only. On January 26, 1938, the Department of the Interior issued an opinion on the denial of the franchise to Indians.106 The solicitor concluded: I am of the opinion that the Fifteenth Amendment clearly prohibits any denial of the right to vote to Indians under in which circumstances non-Indians would be permitted to vote. The laws of Idaho, New Mexico and Washington which would exclude Indians not one in effect taxed from voting, exclude citizens of race from voting on grounds which are not applied races. For this reason, to citizens of other such laws are unconstitutional under the Fifteenth Amend ment.107 four of the five states permitted Eventually, of taxation. regardless to disenfranchise efforts New Mexico, however, on the Indians based Indians to vote in persisted taxation issue. its In 1948, Miguel Trujillo, from Isleta Pueblo in New Mexico, was prohibited from voting because he did not have to pay state taxes on his property. Trujillo filed suit in federal court chal the lenging phrase not "Indians in taxed" the New Mexico Constitution.108 The district court found the prohibition New Mexico Constitution a violation constituted of teenth and fifteenth amendments.109 Judge Phillips the in the the four stated, for court: Any other citizen, of regardless in the State race, of New Mexico who has not paid one cent of tax of any 104. Id. 105. Wash. Idaho Const, 106. Op. 107. Id. Const, art. VI, ? 3 (1890, art. VI, ? 1;Miss. Const, Solic. Interior Dep't, M29,596 v. Garley, 108. Trujillo 109. Id., slip op. at 7. No. 1353 amended art. (D.N.M. Const, 1950); N.M. 12, ? 241 (1890, amended (Jan. Aug. 26, art. XII, 1968). 1938). 11, 1948) (three judge court). ? 1; 186 INDIAN LAW REVIEW AMERICAN [Vol. 16 or if he possesses the other qualifica character, vote. An and in Indian, tions, may only an Indian, to vote, must to meet the qualifications order have the conclusion that you can escape paid a tax. How a requirement an as to a makes with Indian respect to exercise the elective franchise and does qualification kind not make that requirement with respect to the member of any race is beyond me. I just feel like the conclusion is inescapable.110 The cry of "representation without taxation" the 1970s in New Mexico and Arizona.111 The to validate the arguments of opponents failed In 1973, the Arizona in echoed again courts, however, to Indian voters. Supreme Court held that an Indian may even to a county be elected he was immune position though state taxation.112 the New Mexico and from county Similarly, vote on a school ruled that Indians may Court board Supreme not taxed for repayment of a issue even they were though bond.113 Indians Under Guardianship A third means employed by states to deny Indians the right that Indians were under guardianship and, to participate in elections. For example, ineligible to the Arizona "No person under guard Constitution, according or insane, non to shall be qualified compos mentis, ianship, . . . unless to civil rights."114 vote at any election restored to vote was the claim therefore, In 1928, two members Reservation of the Pima Tribe of the Gila River to register attempted to vote in the first presidential election held after the Indian Citizenship Act of 1924 had granted them citizenship. Robert Porter and Rudolph Johnson, the tribal denied members recting the registration, county register.115 The Arizona registrar Supreme sought to enter Court a writ di of mandamus names on the county their considered two First, questions. was the Gila River Reservation within the boundaries of Ari zona? If so, Porter and Johnson would be considered residents slip op. at 7-8. v. Superior 109 Ariz. Court, Shirley v. Board of Educ, 415 U.S. 919 (1974); Prince at 939-40. 112. Shirley, 513 P.2d 110. Id., 111. at 1176. 113. Prince, 543 P.2d art. VII, 114. Ariz. Const, ? 2. v. Hall, 115. Porter 34 Ariz. 308, 271 P. 939 (1973), 510, 513 P.2d 88 N.M. 548, 543 P.2d 411, 412 (1928). cert, 1176 denied, (1975). No. INDIAN JIM CROW, 1] 187 STYLE were within Indians *'under guardianship" of Arizona.116 Second, Constitution?117 of the Arizona the meaning on reservations court that Indians determined The residing were residents The state boundaries of Arizona.118 located within that Mr. Porter and Mr. concluded court, Johnson, however, ' were as wards 'under guardianship" of the federal government, within and, thus, not of the Arizona Constitution the meaning to vote.119 qualified In reaching its decision, the court relied heavily on the lan guage of Chief Justice Marshall's opinion in Cherokee Nation v. Georgia: "Their [tribes] relation to the United States resem that of a ward Nation bles to his guardian."120 are quoted with ing Cherokee In addition, the court refused to follow follow the earlier North v. Leach, which the "under rejected Swift guard court "Indian The added that whea-the argument.122 Dakota case, ianship" are "released wards" States, as other cases Numerous similar wording.121 the state will from their guardianship" entitle them "to vote by the United on the same terms citizens."123 In a strongly-worded dissent, Chief Justice Ross pointed out that Indians are citizens by virtue of the Indian Citizenship Act of 1924.124More significantly, he argued that Chief Justice stated that the Indians' relation Marshall, in Cherokee Nation, to the United States resembled that of a ward to a guardian: . . . but 'resembles' a guardianship."125 "It is not a guardianship to in the Arizona The guardianship referred is a Constitution court-determined Ross it therefore, legal guardianship, argued; has no application to Indians.126 The reasoning of Chief Justice Ross is correct. The federal Indian trust relationship created in Cherokee Nation is unique 116. Id., 117. Id. 271 P. at 413. 118. Id., 271 P. at 415. 119. Id. 271 P. at 418. 120. Id., 271 P. at 417 (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1882). 121. Id., 271 P. at 417-18. E.g., United States v. Kagama, Indians are wards of the nation. They are communities ('These States."); see also Jones v. Meechan, 175 U.S. 118 U.S. 375, on dependent v. Johnson, 1 (1899); Williams 379 (1886) the United 239 U.S. 414 (1915). 122. Porter, 271 P. at 418-19 (citing Swift v. Leach, 45 N.D. 437, 178 N.W. (1920)). 123. Id., 124. Id. 271 P. 125. Id. (quoting 126. Id. at 419. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1882)). 437, 188 INDIAN LAW REVIEW AMERICAN [Vol. 16 from common law guardianship.127 The fed greatly toward Indians is in statutes, treaties, obligation expressed executive and administrative orders, agreements, regulations. and differs eral These obligations define the required standard of conduct for federal officials and Congress. In matters not subject to federal or responsibilities, are as independent restrictions Indians and as competent as other persons. common law Moreover, guard are supervised and if and terminate by state courts ianships when the disability For years, twenty infancy) ends. (mental incompetency, v. Hall Porter stood veterans pushed Indians Apache Upon unchallenged. returning home from fighting during World War II, many Indian right to vote.128 In 1948, two Mohave to vote but were to register turned attempted for the away. They filed suit and the Arizona to interpret the opportunity under guardianship/'129 Supreme Court again had the meaning of the clause "persons This time the Arizona Supreme Court took a different view. The court distinguished between common law guardianship and the guardianship described in Cherokee Nation v. Georgia. Cit ing Chief Justice Ross' dissent in Porter, the court held the guardianship clause in the Arizona Constitution was "intended to mean a judicially established application to the plaintiff[s] in Arizona as * Hortions a class."130 has no court The was that Porter noted a [sic] construction by the [state] judicial branch of the 'under simple phrase never designed by the Harris.132 overruled by Indians . . . [and] guardianship or to the federal status of Indians guardianship', legislature."131 a purpose accomplish was Porter Thus, expressly to As Non-Residents An equally tenuous fourth argument used to bar Indians from voting a residence was 127. For a further in the United States, of Indian Suffrage in the armed War served forces during World on Civil Rights In 1947, the President's Committee in Porter, and explained such as those discriminatory in the Southwest have gained legal bans on Indian suffrage these against return of Indian that "[P]rotest the with force on Civil 129. Harrison Rights v. Laveen, at 463. 130. Id., 131. Id., 196 P.2d 196 P.2d at 461. 132. 196 P.2d at 463. Id., statutes. election see Houghton, Status The Legal discussion, 19 Calif. L. Rev. 507, 508, 511-12 (1931). 128. Approximately 25,000 II. Peterson, supra note 74, at the state prohibitions, declared Commission state in certain clause Indians 123. veterans to those states." Report 40 (1947). 67 Ariz. 337, 196 P.2d 456 (1948). of the President's No. JIM CROW, INDIAN 1] 189 STYLE In the 1950s and 1960s, the New Mexico and Utah courts wrestled with the issue about whether a person living on a reservation a state was within located a resident state. that of In a 1956 case, Allen v. Merrell,133 the Supreme Court of Utah interpreted the state's election statute, which provided: "Any person living or military Indian any upon not be deemed a resident of Utah within unless chapter, such had person a residence acquired shall reservation the meaning of this in some county inUtah prior to taking up his residence upon such Indian or military The reservation."134 court concluded that statute the was not a denial of the right to vote on the basis of race in violation of the equal protection clause.135 The court justified the residence requirement on three grounds: (1) tribal sover eignty, (2) federal government control of the reservation, and (3) Indians were not acquainted with the processes of govern ment.136 The English, and diction, Allen court further reasoned that Indians do not speak do not pay taxes, and are not fully under state juris statute the residency therefore, was justified.137 The opinion also expressed a fear that the Indian population outnumber might let them control the white and it would be voters, state politics "an because had they extremely limited interest in its functions and very little responsibility providing the financial support to unfair in thereof."138 Allen was appealed to the United States Supreme Court, which vacated interim, statute.140 the decision the Utah and remanded legislature it for rehearing.139 In the disenfranchisement repealed In 1962, the New Mexico Supreme Court had occasion consider the issue of residency involving Indians inMontoya the to v. The Indians' in vain by Bolack.141 right to vote was challenged the unsuccessful candidate for Lieutenant Governor of New votes who would have been the victor had the Mexico, Navajo in San Juan and McKinley out. counties been thrown were not part of contended that Indian reservations Montoya a not the state and, "residence" for voting therefore, pur 133. 6 Utah 2d 32, 305 P.2d 490 (1956). 134. Utah Code Ann. ? 20-2-14 (11) (1953). at 495. 305 P.2d 135. Allen, at 492. 136. Id., 305 P.2d 137. Id., 138. Id. 139. 305 P.2d 353 U.S. 932 to Reservation Rights 140. Act of Feb. 141. 70 N.M. at 495. (1957). For Indians, 14, 1957, further L. Rev. ch. 1957 Utah 38, of Allen, discussion 5 Utah 196, 372 P.2d 387 (1962). 247 (1956). Laws 89-90. see Note, Denial of Voting AMERICAN 190 INDIAN LAW REVIEW he argued reservations: poses.142 Moreover, on located places [Vol. 16 could arise with was a violation problems If there polling of the state did state election could be done because the code, nothing on the reservation.143 not have jurisdiction In upholding the Indians' the court right to vote, recognized over that lack of state jurisdiction Indians "is of serious mo but so is the refusal of the right to vote."144 ment, Tribal Sovereignty the nineteenth During century, of opponents Indian citizenship took the position that maintaining tribal ties was incompatible with citizenship, being 'civilized', and voting in state elections.145 was discussed and recent voting rights This argument in However, in early cases.146 states and local of disposed litigation, officials have resurrected the argument to abridge and diminish the voting rights of Indians. The argument used by states is that Indians do not care or or state to participate in wish and instead affairs, county rely on the tribal and federal for certain services and government sover states maintain, tribal Therefore, participation. political than discrimination, the state govern rather eignty, explains ment's treatment of Indians and also the diminished participation of Indians in state and local political activities.147 The tribal sovereignty/reduced participation position has been the by rejected federal When government. extended Congress the protections of the Voting Rights Act of 1975,148 it considered tribal the nation states argument. sovereignty "was and substantial" found Congress Indians and other against that that discrimi by the language minorities "[l]anguage minority citizens, like blacks throughout the South, must overcome the effects of discrimination as well as efforts to minimize the impact of their Based participation.149 political record" demonstrating 142. Id., 143. Id., 372 P.2d at 388. 372 P.2d at 394. an upon ''extensive evidentiary the prevalence of voting discrimination 144. Id. 145. See supra notes 146. For example, 147. See Defendant's 88-97 see Swift Brief text. accompanying v. Leech, 178 N.W. 45 N.D. 437, v. Sisseton on Remand, Buckanaga and 439 School (1920). Indep. Dist., Post-Trial of Big Horn, Brief, Windy Boy v. County (1988); Defendants' 1002 (D. Mont. 647 F. Supp. 1986) (No. CV83-225 BLG-ER). 148. Act of Aug. 89 Stat. 400, 402; S. Rep. No. 6, 1975, Pub. L. No. 295, 94-73, 1st Sess. 38 (1975). 94th Cong., No. 84-1025 149. S. Rep. No. 295, 94th Cong., 1st Sess. 24, 38 (1975). No. Indians,150 against extended Congress 191 STYLE INDIAN JIM CROW, 1] the special pre-clearance It also provisions of section 5 to include language minorities. a Indian with number of populations to jurisdictions required election bilingual provide in action Congressional procedures.151 extending the Voting Rights Act to Indians belies state arguments that diminished political participation of Indians is unrelated to discrimination. Congress again disposed of the tribal sovereignty claim when it amended section 2 of the Voting Rights Act of 1982.152Section 2 expressly applies to Indians; Congress stated that it was adopt standard for vote ing a nationwide vote that Indian dilution guments an exception to the Voting somehow dilution.153 cases are Rights Act ar state or Thus, unique are unavailing. are In Windy Boy v. County of Big Horn,154 the Montana federal district court rejected the tribal sovereignty/reduced participation position. In Windy Boy, the court considered the issue of dual status and whether it reduced Indian political participation. The court stated: The Court does not find that dual sovereignty explains the inability of Indians to participate fully in the political processes of Big Horn County. Indians, for as concerned as white about schools citizens, example, run for school over and a good number have board the last twenty years. There is no evidence that interest in tribal affairs has not in any lessened Indian parents' in their children's involvement education. po Racially larized voting and the effects of past and present discrimination explain the lack of Indian political in in the country, fluence tribal government.155 far better than existence of The tribal sovereignty/reduced participation position has also been equated to the arguments made by southerners to justify black disenfranchisement black-white relations and were white special or supremacy?that that unique, is, blacks that pre ferred segregation, that they wanted to be separate from whites, that they did not want to register and vote, and that they 150. Id. at 24. 151. 42 U.S.C. 152. Pub. ?? L. No. 1973c, 97-205, 1973b, ? 2, % 1973aa-la Stat. 131, (1976); 131-32 28 C.F.R. (codified (1973)). 153. S. Rep. No. 154. 647 F. Supp. 1021. 155. Id. at 417, 97th Cong., 1002 (D. Mont. 2d Sess. 1986). 27, 42 (1982). ? 55 app. at 42 U.S.C. (1984). ? 1973(a) 192 AMERICAN own their preferred tions of way who southerners INDIAN LAW REVIEW of doing defended [Vol. 16 genera things.156 Like many the states seek segregation, to blame the victim for the crime. Finally, the argument that Indians have less political than on to exert whites state or county elections energy because their time is spent exclusively on tribal matters is a variant of the "apathy" argument which has been used to justify the exclusion of blacks from political participation in the South?an argument uniformly rejected by the courts.157 States would be hard-pressed to demonstrate a case that Indians have less political energy than whites. History shows Indians have, in fact, participated and are willing to participate when given the opportunity. In deed, studies of Indian voters in the states of Montana, South Dakota, Arizona, Washington, to Indian that issues of concern of state and local elections.158 and New Mexico can impact voters demonstrate the outcome The Continuing Quest for Full Political Participation The majority of blatant legislation and local actions which prohibit Indians from voting have been repealed or struck down by courts. the Registration in a resulting stantially, of Indian voters dramatic increase has increased sub in the number of was presented 156. This argument in Windy Plaintiff's Boy. by the plaintiffs to Defendants' at 9, Windy Brief Post-Trial sponse Boy (No. DV 83-225-BLG). also Derfner, Racial Discrimination and the Right to Vote, 26 Vand. L. Rev. 523 the disenfranchisement of (discussion 157. United v. Marengo States of blacks County after Comm'n, Reconstruction). 731 F.2d 1546, 1568 (11th Re See (1973) Cir. 1984);United States v. Dallas County Comm'n, 739 F.2d 1529, 1536 (11th Cir. 1984); v. Board 554 F.2d of Supervisors, 134, 145 (5th Cir. Kirksey 1977). recent 158. A at the Tohono River behavior O'dham and Gila study political in Arizona Reservations concluded that a candidates' stand on Indian issues and concerns for Indians were Nat'l and O'odham Reservation Indian Navajo Helen very Youth Indian Gila showed issues of 81% and 86% respectively. receiving high percentages and Attitudes at Tohono Political Behavior Poll Council, a on Arizona conducted the Navajo Rtver, (1986). Similarly, poll concern that 69Vo of Navajos interviewed found a candidate's for important, the most and Indian people Political Peterson Attitudes examined Indian Indian factor. Nat'l Youth important and Behavior Poll 16 (1984). voters in the 1952 and 1956 elections turning out to vote against specific policies affecting note 74, at 125. Stephen Kunitz's and Jerrold Levy's study 1968 national and Jack Holmes' election review of Navajo Indians Mexico specific election candidates showed Navajos sponsoring 1970, at Plateau, Summer, also D. McCool, supra note Indians. Council, and found supra in the voting the 1967 New Peterson, of Navajo voters in to them and supporting voting on issues of importance such issues. Kunitz & Levy, Navajo Patterns, Voting in New Mexico Politics 1, 1-8; J. Holmes, (1967). See 91, at 116-28. No. INDIAN JIM CROW, 1] 193 STYLE are seeking to local election school Indians Indians voting.159 Grassroots coalitions state government boards and positions. are registering in Indian communities Indian formed and groups and provid candidate voters forums, door-to-door, sponsoring on significant issues. The result is a greater ing voter information awareness among Indians of their voting rights and the signifi cant influence can have they on state local, and county elections. In 1986, a National Indian Youth Council report showed there were 852 Indians holding a nontribal elected office. Of the more than 90% were officeholders, serving in state-level and 49 were positions, serving on school served one boards, in Con gress.160 A consequence of this upsurge in Indian political action and is a marked increase in the election of Indian candidates are challenging Indians state-devised in voting rights litigation. Indian voting election schemes and systems that submerge strength success or deny equal and effective participation in the political process. The primary tool utilized by Indian voters to assert and protect their fundamental constitutional rights is the Voting Rights Act of 1965.161 The Voting Rights Act of 1965 is the culmination of efforts to create an effective remedy for the systematic discriminatory voting against practices at precluding communities. minority state government the right of minorities of general compilation all states and specific officials is aimed The Act from interfering with to register and vote. It is a complex that are permanent and affect provisions that are temporary and only provisions affect jurisdictions that meet particular criteria stipulated in the Act.162 The most important of provisions are the Act section 2, which bans voting practices that result in the denial or abridgment of the on to vote right 159. See Windy 647 Boy, this undeniable Despite 119-20. as still be characterized 160. Nat'l 1986). The in Colorado. Indian low, Youth sole congressman 161. Pub. L. No. 89-110, account of race, or membership color, at 1004, 1007; D. McCool, Supp. and turnout progress, registration as with other minority voters. Indian Elected Officials Council, F. is Ben Nighthorse 79 Stat. 437 a Northern Campbell, (codified of as amended in supra note 91, at Indian voters can Directory (Nov. Cheyenne residing at 42 U.S.C. ?? 1971, 1973-1973bb-l (1982)). 162. Provisions Rights, filled The Goals]. Voting of the Voting Act: Rights Rights Act Unfulfilled are described Goals 4-21 in U.S. Comm'n (1981) [hereinafter on Civil Unful 194 INDIAN LAW REVIEW AMERICAN a 4 and and sections minority,163 In 1970, devices" for voting.164 language "tests and the ban for five years and made [Vol. 16 which 201, abolish extended Congress it applicable nationwide.165 Five years In gress made the ban permanent.166 later, Congress 2 by adopting amended section the results v. to in Mobile Bolden.161 response marily City of Other Act of the make permanent provisions standard, 1982, Con pri it a crime to deprive or intend to deprive anyone of the rights protected by the Act,168 abolish lish uniform durational residency the Act elections.169 provides Additionally, or needs assistance because of a disability or write to assistance.170 is entitled estab that any voter who an inability to read In 1982, Congress the protection of the Act by amending ? 2. See strengthened at Act of 1982, Pub. L. No. 97-205, 131, 131-32 (codified ? 2, 96 Stat. 163. Voting and requirements, standards for absentee voting during presidential Rights 42 U.S.C. ? 1973(a) (1973)). Amended ? 2 provides: or prerequisite qualification shall be imposed or applied procedure in a manner results in a denial which No voting of citizen the United contravention to States or to voting or standard, practice, subdivision by any state or political or abridgement of the right of any or in vote on account of race, color the guarantees set forth in section in subsection (b) of this section. of title as provided 1973 (0 (2) of this Id. 164. 42 U.S.C. tax as a condition the right to vote. in any jurisdiction did not outright ban the use of the poll ? 1973b (1976). Congress or abridged" but did determine that the tax "denied for registration to bring suit authorized the United States Attorney General Congress the tax was where 165. Voting Rights The Act had previously Act to enjoin used Amendments of 1970, its enforcement. Pub. L. No. Id. 91-285, ? 1973h. 84 Stat. 314. to specific jurisdictions. 166. Act of Aug. 89 Stat. 402. 6, 1975, Pub. L. No. 94-73, 167. 446 U.S. In 1980, a sharply divided 55 (1980). Court established intent applied for vote standard dilution claims under the Constitution a subjective ? 2 of the Act. The for a violation of voting cases applied dilution by and was a prerequisite of racial purpose held that proof in vote of the standard rights. Id. at 72-74. For a discussion see Parker, 2 of the courts pre-Bolden, The "Results" Test of Section 715 (1983). Act: Abandoning 69 Va. L. Rev. the Intent Standard, plurality 168. 42 U.S.C. 169. Id. Rights ? 1973j (1976). ? 1973aa-l. 170. Voting L. No. of 1982, Pub. Rights Act, Amendments at 42 U.S.C. 131, 134-35 (codified ?? 1973aa-6 (1983)). Another to covered the Attorney allows General to send federal examiners General has received twenty or more written Attorney complaints ination the Voting 97-205, provision ? 5, 96 Stat. of the Act when the jurisdictions voter discrim alleging in that 42 U.S.C. 1933f (1976). ?? 1933d, jurisdiction. ?? 3(a) and 3(c) of the Voting Rights Act, a federal court can order a jurisdiction can then to pre-clear court of its upcoming election. The federal [obtain approval] or an aggrieved if the Attorney authorize the appointment of federal examiners General Under files person amendments. suit to 42 U.S.C. enforce the ? 1973a(a) voting (1976). and fifteenth of the fourteenth guarantees Under certain ? 5 of the Act, jurisdictions No. INDIAN JIM CROW, 1] STYLE 195 Bilingual Elections A special provision of the Act requiring assistance to language minorities Indians, (American Alaska Asian-Americans, Natives and Hispanics) was added in 1975.171This provision was recently extended until 1992.172 In 1975, Congress determined that "vot ing discrimination against citizens of language minorities is per vasive ucational It further in scope."173 and national on testimony, language minorities state by opportunities concluded based that, had "been denied equal ed and local causing governments" them to have "severe disability and continuing illiteracy" in English.174 Language barriers combined with English-only reg istration and voting procedures excluded language minorities from sons rea were These excellent participation. of the special minority passage language effective political for congressional provisions. are required to submit proposed and, therefore, by the Act changes encompassed or the or procedures to either the U.S. Attorney in its voting General laws, practices, See 42 U.S.C. U.S. District Court for the District of Columbia. ? 1973c (1982 & Supp. are IV 1986). Federal examiners not situations No. 78-0-380 consent have under covered in two jurisdictions Indians in appointed affecting In United States v. Thurston the section. Nebraska, County, was stipulated in a 9, 1979) (consent decree), pre-clearance been (D. Neb. May the County between and the County's at-large method The Attorney General. General its board of supervisors. It argued electing diluted the voting of the Omaha and Winnebago rights of members in violation of ? 2 of the Voting Tribes, Rights Act. The consent decree required county to be elected from single member In addition, Thurston commissioners districts. County decree challenged that this method the Attorney of was were appointed, and the examiners under ? 3(a), federal placed to pre-clear its election for 5 years. Id. at 3. required changes The second case, United States v. Town of Bartelme, No. 78-C-101 17, 1978), The United involved Indian residents of the Bartelme States alleged the Stockbridge-Munsee Reservation sever the Reservation that would petition of the County. Thus, or county elections. allow residents of 171. Voting residents of the Stockbridge-Munsee and Shawano County, Act, was Feb. (E.D. Wis. inWisconsin. denied residents Wisconsin, the right to vote. Town residents had signed a from the town. The petition was approved by were no longer allowed to vote in city the Reservation a preliminary However, the Stockbridge-Munsee Rights Reservation jurisdiction Amendments was injunction Reservation of issued the town ordering to to vote. 1975, Pub. L. No. 94-73, ? 207, 89 Stat. 401, 402 (codified at 42 U.S.C. ? 1973 1(c)(3) (1982)) (amending ? 14(c)(3) of the Act). 172. See 1973aa-la Pub. L. No. 97-205, ? 4, 96 Stat. 131, 134 (codified at 42 U.S.C. ?? (1982)). 173. Voting Rights Act, 401 (codified at 42 U.S.C. 174. See Extension S.1297, S.1409 Comm. on of and S.1443, the Judiciary, 1975 Amendments, Pub. L. No. 94-73, ? 203, 89 Stat. at ? 1973b(f)(l) (1982)) (amending ? 4(f)(1) of the Act). on S.407, the Voting Rights Act S.903, of 1965: Hearing on Constitutional the Subcomm. Before Rights of the Senate 94th Cong., 1st Sess. 214-19, 756-89 255-68, 738-56, (1975). 196 INDIAN LAW REVIEW AMERICAN [Vol. 16 Specific jurisdictions under this section are required to provide bilingual forms and notices, bilingual ballots, bilingual voter and information, oral at assistance the polls.175 The provisions is oral or also provide that when the language of the minority as unwritten, Indian many is "only required other information jurisdiction176 or assistance, the are, specific oral instructions, to registration and languages to furnish relating voting."177 Two Navajo cases, Apache County High School Dist. No. v. County States of the types of v. United States118 and United are illustrative New Mexico,179 of San problems 90 Juan, that arise with the bilingual requirements.180 In 1975, the Apache County High School District in Arizona brought a declaratory judgment in the United States District Court for the District of Columbia in order to pre-clear its bilingual plan for a bond election. In Apache County High School Dist. No. 90 v. United States, the district court denied the school district's request and found it had "deliberately failed to inform the Navajos" about the election issues and the issues, because it had not disseminated information in the Navajo language and it had not sent infor mation to Navajo chapter officials.181 court the Further, found the school district had not provided bilingual Navajo poll work ers and it had limited the number of polls on the Navajo Reservation.182 A second, suit was brought five years later. In United similar v. County the United States States of San Juan, New Mexico, to provide that San Juan County failed "oral instruc alleged to the registra and other information tions, assistance, relating in the Navajo whenever such tion and voting process language an ad was provided to provide in English";183 failed language interpreters;184 and failed to equate number of bilingual Navajo 175. 42 U.S.C. 176. See the minority ?? 1973(b)(f)(3), 1973aa-la(b), (c) (1982); 28 C.F.R. ? 55.19 (1980). 28 C.F.R. language 177. 42 U.S.C. 77-1815 179. No. 79-508JB two (D.D.C. 183. Complaint 184. Id. for covered jurisdictions June 12, under ? 5 and 1980). 8, 1980). (D.N.M. April cases are discussed extensively by the U.S. Goals, supra note 169, at 87-88. in Unfulfilled Rights 181. Apache County 182. Id. at 5-6. 508JB). (1988) ?? 1973(f)(4), 1973aa-la(c) (1976). 178. No. 180. These ? 51 appendix provisions. High at 4, United School, States No. 77-1815, v. County slip. of San op. Commission on Civil at 4. Juan, New Mexico (No. 79 No. sufficient provide cerning The INDIAN JIM CROW, 1] locations parties information (in the Navajo of polling places.185 entered into a settlement and elections.186 conducting language) con in which County agreed to comply with the minority in preparing 197 STYLE Juan San language provisions In addition, the County agreed to (1) train poll workers in aspects of voter registration and in giving assistance to bilingual voters; (2) establish more poll places on the Navajo Reservation; (3) publish voting infor mation in Navajo and English; and (4) undertake a voter reg istration of Navajos.187 Section 2 of the Voting Rights Act In 1982, Congress amended the Voting Rights Act.188 The amendments to section 2 received the great debate because the requirement of proving a discriminatory purpose for a section 2 violation was eliminated.189 Amended section 2 provides that any voting account of law or practice race or color, on which in discrimination "results" or language minority is unlaw status, ful.190 In Bolden, the Supreme Court stated that proof of a discrim inatory purpose was required to establish a statutory violation of section 2.191Congress responded directly to Bolden by amend ing the Voting Rights Act. The report of the House Committee on the Judiciary explained the purpose of the amendment was "to make clear that proof of discriminatory purpose in cases brought is not required under that provision" or and intent "to restate Congress' earlier intent that violations of the Voting Rights Act, including section 2, could be established by showing the discriminatory effect of the challenged practice,"192 and the dilution or diminishment of the voting strength of minority voters. Both the House and Senate reports give detailed guide 185. Id. see 25 U.S.C. 186. Id. For minority language provisions, v. County 187. United States of San Juan at 4. County, Utah, ? 1973aa-la (1982). No. 79-508JB, stipulation 188. Pub. L. No. 97-205, % Stat. 131 (codified at 42 U.S.C. ?? 1971-1975e (1982)). 189. Id. at 134. See Parker, The Results Test of Section 2 of The Voting Rights Act: the Intent Abandoning to ? 2). amendments Standard, 69 Va. L. Rev. 715 (1983) (discussion of the 190. Pub. L. No. 97-205, ? 2, 96 Stat. 131, 131-32 (codified at 42 U.S.C. ?? 1973(a) (1982)). 191. City 192. H.R. of Mobile No. 227, v. Bolden, 97th Cong., 446 U.S. 1st Sess. 55, 60-74 (plurality 29 (1981). opinion). INDIAN LAW REVIEW AMERICAN 198 [Vol. 16 lines on the implementation of section 2 and congressional in amending the Act.193 is "a process Vote dilution laws or practices, election whereby intent either singly or in concert, combine with systematic bloc voting among an identifiable group to diminish the voting strength of at one Vote dilution takes many forms, or concentrate that fragment plans vote requirements,197 terms,196 majority staggered populations,195 and numbered form annexations,198 posts.199 The predominant or multi-member is at-large dis of vote dilution today voting least other group."194 reapportionment including tricting. Under an residents scheme, at-large commission. The effective opportunity can systems election if it votes majority, the board members or officials, to elect and a of school or district of the school board or county county vote for the membership as a bloc, thus denying can choose all the minority an of its choice. These representatives the gains made negate by minority do voters under the Voting Rights Act. The to amendment 2 section and the subsequent Supreme Court decisions200 have greatly supported Indian vote dilution claims. Most of the litigation has been initiated or supported by the Native American Rights Fund, National Indian Youth Council, the Legal Services Corporation, and the American Civil Liberties Union. 193. S. Rep. nom. East are taken 2d Sess. 27, 28-9 (1982). These 97th Cong., factors v. Regester, cases of White 412 U.S. 755 (1973); Zimmer voting on other grounds sub 1297 (5th Cir. F.2d 1973) (en banc), affd 424 U.S. 636 (1976). Parish Bd. v. Marshall, School No. the pre-Bolden v. McKeithen, 485 from Carroll 417, 4 (1984). The basic voting Vote Dilution Minority dilution Davidson, v. case of Reynolds vote reapportionment from the one person-one derive principles stated: the Supreme Court 533 (1964). There, 377 U.S. Sims, a piece of paper to the right to vote than the right to mark There is more booth. The it in a box or the right to pull a lever in a voting and drop ... It also the right to have the ballot counted. includes right to vote at full value without dilution the right to have the vote counted includes 194. C. . . . that federally or discount dilution suffers substantial right protected . . . [and] [t]he groups . . . [where a] favored group has full voting strength not in favor have their voters discounted. Id. at 555 n.29 (quoting South v. Peters, 339 U.S. 276, 279 (1950) (Douglas, dissenting)). of Big Horn, 647 F. Supp. 1002 (D. Mont. 195. See Windy Boy v. County v. United 446 U.S. 156 (1980). 196. See City of Rome States, v. United 459 U.S. 197. See City of Port Arthur States, 159, 167 (1982). 198. See id. at 166-67. v. Lodge, 458 U.S. 199. See Rogers v. Gingles, 200. See id.; Thornburg 613, 627 478 U.S. (1982). 30 (1986). J., 1986). No. JIM CROW, 1] INDIAN 199 STYLE In 1986, in Windy Boy, the federal district court inMontana alleged the Big Horn County and School District's at-large election schemes about as a years were violative of unsuccessful of section attempts came 2. Windy Boy Crow Northern and by Cheyenne individuals to elect an Indian to the county commis sion and to the school board. The Indian plaintiffs presented or po evidence of past and continuing discrimination in voting, ap accommodations, public employment, to boards and commissions, pointments police protection, political social and business and associations, housing, organizations, churches. and Historians, scientists, statisticians, political serving extensive larization as expert witnesses record of on be?ialf of the plaintiffs, in Big discrimination Horn recounted court The County.201 the de cided overwhelmingly in favor of the plaintiffs and ordered the county and school district be redistricted into single-member districts.202 The use of single-member districts is an effective voter in at-large schemes. voting Single-member in several have been utilized claims against at-large New Mexico,203 and Colorado.205 Arizona,204 remedy to dilution Where the minority population is geographically districts in voting dispersed, an equal oppor districts do not always single-member provide to for minorities elect of their choice.206 tunity representatives are Limited In a and cumulative schemes alternatives. voting a a a vote voter casts cumulative for less than system, multiple 201. utilized on the factors 202. of Windy several Windy 647 F. Supp. at 1006. In racial vote dilution Boy, to demonstrate vote dilution. In Windy standards v. McKeithen, in Zimmer 485 F.2d developed 647 F. Supp. at 1023. A single member Boy, a majority. group constitute cases, the courts Boy, the court 1297 district have relied (5th Cir. 1973). is where members the minority 203. Tso v. Cuba decree); Estevan March No. 85-1023-JB School Dist., 18, 1987) (consent Indep. (May v. McKinley Consol. School No. 84-1751 HB 26, Dist., Largo (Nov. 1984); v. Grants-Cibola School No. 84-1752 HB Dist., County (Nov. 26, 1984). In ended at-large schemes for all county 1985, the New Mexico legislature voting in counties with populations and for all school less than 2,000, commissions, except v. City of Gallup, See also Casuse boards, except districts with fewer than 500 students. v. Bernalillo No. 88-1007-HB School Dist., No. CN88-0212 (D.N.M. 1988). Bowannie (D.N.M. 204. 1988). Clark v. Holbrook Pub. School Dist., No. 3, No. School Dist. 88-0148 PCTRGS (D. Ariz. 1988). 205. Colo. Cuthair v. Montezuma-Cortez, 1990) (consent 206. See Criteria Colo. No. RE-1, No. 89-C-964 (D. decree). A Social Science L. Rev. 33 UCLA for Districting: Perspective, 160 (1985); Note, Alternative Systems As Remedies Voting for Unlawful At-Large 144 (1982); to Single-Member 92 Yale L.J. in Systems, Still, Alternatives Districts, Minority Vote supra note Dilution, 194, at 249-67. 77, 200 full INDIAN LAW REVIEW AMERICAN slate of candidates a voter (i.e., casts more [Vol. 16 one than vote).207 A voter does not have to belong to a plurality or a majority the a candidate to elect in order electorate of his choice. of Cu mulative voting has recently been used during settlements of minority vote dilution cases in Alamagordo, New Mexico; Peo r?a, Illinois; and several towns in Alabama. in a recent has been adopted v. Sisseton School The cumulative system voting case. In Buckanaga South Dakota * District, members of the Sisseton Wahpeton Sioux Tribe challenged the at-large voting system. In 1980, the Sisseton School District contained 5,628 residents, of which 33.9% were Indian.209 The school district was governed by a nine member board; three of were the nine members Tribal members elected every had consistently year to three terms.210 year for seats on been candidates but had rarely been successful.211 school board, into a consent the parties On remand, entered decree, agreeing in to the use of cumulative future elections.212 Voters rules voting the acquired the option of casting their three votes in any combi nation they wished. This allowed the school district to retain its system, staggered-term at-large, with a more yet provided the tribal members to elect a candidate of their realistic opportunity choice. The first interim election under the new voting rules was held in June, 1989, and resulted in an Indian winning over a field seven of Indians In candidates. were 1990, a election, full nine to the board.213 elected election Other discriminatory when the May, board was elected by the school district voters. Three member by challenged Indian laws and practices have fallen voters.214 In a South Dakota case, a few days prior to the November, 1984, general election, a county auditor rejected registration cards from an Indian registration 207. See Note, supra note 213, at 148-49, 153-54. 208. No. 84-1025 (D.S.D. 1985) (1985WL 6683), rev'd and remanded, 804 F.2d 469 (8th Cir. 1986). 209. 210. Id., Id. 804 F.2d at at 470. 1974 to the present that "from 211. Id., 804 F.2d at 476. The record showed [1986], and since 1982, 23 Indians there has been only one Indian board member; sought office Id. and only 3 were successful." 212. Consent 213. Report v. Sisseton Decree, Indep. School Dist., Buckanaga to the Native DuMarce American from Harvey No. 84-1025 Fund Rights (1988). (May, 1990) (unpublished report). 214. 1987) olina). See, (Lumbee e.g., Love Indians v. Lumberton successfully City challenged Bd. of Educ, multi-member No. 87-105-CIV-3 districting (D.N.C. in North Car No. JIM CROW, 1] INDIAN STYLE 201 drive.215One day before the general election, the district court ordered the county officials to permit the Indians to vote.216 In addition, Indians conducting registration drives have been impeded county by For officials. voter to ten-to-fifteen registrars a example, county auditor forms to be given to Indian limited the number of application The apiece. registrars trav had eled approximately eighty miles round-trip to begin their regis tration drive. In Fiddler v. Sisker,217 the court held the county auditor had discriminated against Indian voters in violation of section 2. The court extended the deadline for voter registration by one week.218 In addition to the situations of Fiddler and American Horse, Indian voters have challenged the denial of polling places in outlying Indian communities. In Black Bull v. Dupree School District No. 64-2,219 the Dupree School District was ordered to establish four polling places on the Cheyenne River Sioux Res ervation. to Prior the travel up to 150 miles tions.220 Indian lawsuits. plan was principle. Indian lawsuit, voters were forced to round-trip to vote in school board elec voters in reapportionment have also been involved v. King,221 New Mexico's In Sanchez reapportionment to be violative of the one-person one-vote found were In Sanchez, to redraw the defendants ordered districts in compliance with the principle of population equality. After the state legislature redrew the districts, Indian and His panic in a second voters, of phase the case, attacked the dis tricting scheme on the grounds that the scheme resulted in an impermissible dilution of minority voting strength violative of 2. A court-imposed into redistricting plan was ordered to bring effect the state into compliance.222 cases have demonstrated In summary, the above that as re as were voters Indian discrimi cently eight years ago, covertly section 215. American 216. Id., No. 217. v. Kundert, 1 (Order). Oct. (D.S.D. Horse slip op. 85-3050 No. 84-5159 (D.S.D. Nov. 5, 1984). at in Windy See supra presented Boy. 218. Fiddler, No. 85-3050. evidence of 24, 1986). Similar notes 201-02 and accompanying was discrimination text. 219. No. 86-3012 (D.S.D. May 14, 1986) (Stipulation for Settlement). 220. school to the Prior board stipulation, a temporary restraining order was ordered to halt the election. 221. 550 F. Supp. 13 (D.N.M. 1982), aff'd 459 U.S. 801 (1983). See also Ratcliff v. Municipality tionment plan 222. Sanchez of of Anchorage, No. A86-036 (D. Alaska city by Alaskan Natives). v. King, No. 82-0067-M (Aug. 8, 1984). 1989) (challenge to reappor AMERICAN INDIAN LAW REVIEW 202 [Vol. 16 nated against, and were required to seek adjudication of a right long recognized as a personal right. Conclusion This article has discussed the resistance by states and local entities to Indian participation in virtually every aspect of the electoral process. While early federal policies encouraged Indians to adopt the ways and practices of the majority society, Indians were prohibited from exercising their freedom of choice of representatives. The courts have played a major role in constru ing the numerous, and sometimes conflicting, federal statutes and regulations that seek to protect Indian voting rights, and will continue to do so in the future. With the passage of the Voting Rights Act of 1965, Indians have intensified the fight for increased political participation and have made great strides in defeating the various discriminatory state voting schemes. Indians will continue to face the enduring legacy of racial discrimination as the campaign for equal voting rights spreads throughout Indian Country. Indians now know they can significantly influence the local political decision-mak ing policies that affect their lives. Thus, Indians will continue to seek the goal of political equality envisioned in the fifteenth amendment and the Voting Rights Act of 1965.