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
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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.