November 23, 2019

By the Southern Poverty Law Center

SPLC

November is Native American Heritage Month – a fitting time to honor the resistance and resilience of Native peoples, including their fight to be heard by and represented in the government that dispossessed them for centuries. 

The first inhabitants of this land have been expressly disenfranchised for most of U.S. history.

Excluded from birthright citizenship, American Indians found that, unlike immigrants, there wasn’t a naturalization process for them because they were not considered “foreigners.” During Reconstruction, they were excluded from rights acknowledged by the 14th Amendment, which bolstered civil rights for formerly enslaved people. 

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In essence, a Native person could not exercise citizenship rights, including the vote, without renouncing tribal membership until 1924 – less than 100 years ago. In the ensuing decades, however, states have employed suppressive tactics not unlike those used against other people of color, including poll taxes, literacy tests and voter intimidation.

The 1965 Voting Rights Act outlawed literacy tests, which were particularly disenfranchising for Native people because many elders were not literate in English at that time. In 1975, also through the Voting Rights Act, more protection was offered to Native voters by guaranteeing language assistance to voters with limited English language skills.

Though these provisions of the Voting Rights Act remain in place today, Native people must regularly bring litigation against state and local governments for not adhering to federal law.

What’s more, the U.S. Supreme Court’s 2013 decision in Shelby v. Holder dealt a great blow to the progress made by Native activists and advocates when it gutted the Voting Rights Act’s requirement that states and jurisdictions with histories of voter discrimination receive preclearance from the federal government for new voting laws.

It is well documented that the decision in Shelby has had a disproportionately adverse impact on communities of color. The Native community, too, is acutely experiencing the disparate impact of new voting restrictions. Arizona, Alaska and counties in other states home to reservations and with significant Native populations are no longer required by federal law to examine how their voting laws impact Native peoples in their jurisdictions.

A recent congressional report published after the U.S. House Subcommittee on Elections conducted field hearings in preclearance states confirms that Native people, particularly those living on reservations, face significant barriers to the ballot box, including stringent voter ID laws and long travel times to polling places.

Arizona – home to part of the Navajo Nation and with the second-largest Native population in the country – offers no-excuse absentee ballot voting and in-person early voting, yet this year the state’s legislature made it a Class 6 felony for anyone other than a caretaker or immediate family member to handle someone’s ballot. This severely restricts voter access for people on reservations who are unable to travel long distances to mail a ballot or vote early in-person.

And, people who opt to vote early in-person because of needed and federally required language assistance are required to provide an ID, whereas those who vote by mail are not. To make matters worse, since the Shelby decision, many on-reservation polling places and early voting locations have been closed.

Even states not formerly subject to preclearance are restricting access to the ballot box.

A 2018 North Dakota law required voters to have an ID with a residential address, even though many Native people living on reservations do not have typical residential addresses and instead rely on post office boxes. Disproportionately high rates of poverty and homelessness affecting the Native community mean that many others do not have a permanent residential address. And the state did not provide any assistance in helping the tribes meet the new address requirement or ID law. Instead, tribes took on the financial burden of offering free ID cards to as many members as possible.

The appearance of such obstacles in the wake of the Shelby decision is why the SPLC is supporting the Voting Rights Advancement Act, which seeks to re-establish a formula to determine jurisdictions that are required to have their new voting laws precleared.

We also endorse the Native American Voting Rights Act, which specifically aims to expand Native voter registration, establish accessible polling and voter registration sites as determined by tribes, clarify jurisdictions’ language requirements, and require that certain decisions affecting Native American access to voting be precleared by tribes. It also would establish a grant program for Native American get-out-the-vote efforts and bolster election infrastructure for Native communities.

And, as we work to support and protect the voting rights of communities of color in the Deep South, we are working with Native Tribes here in the Deep South to support their needs and to ensure that they are heard. This work is particularly important as we approach the 2020 election and redistricting cycle, which will determine, in some places, Native representation for years to come. 

Though more Native people have been elected to state and federal governments in recent years than ever before, an achievement made possible through community-led organizing efforts and litigation, as many as 1 million eligible Native people remain unregistered to vote. 

Healthy democracies require that every citizen has equal access and opportunity to make their voices heard. It is only then government truly reflects us – all of us.

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Reprinted with permission