Native American voting rights—United States

• TRIBES AFFECTED: Pantribal

SIGNIFICANCE: The related issues of Native American citizenship and suffrage mirror the larger views of the U.S. government and the American public regarding the status of Indians in society

In the early years of the United States, Native American nations or tribes were viewed as sovereign or semi-sovereign peoples. The primary means of dealing with them was through treaties. This “sovereignty” was a legal fiction that courts used as justification to avoid treating Native American land claims like vested property rights. Such rights would have afforded the tribes, and possibly individuals, stronger legal claims. The first United States treaty with a Native American tribe was concluded in 1778, ten years before the Constitution came into operation. More than six hundred others were to follow.

Questions of Native American citizenship or voting rights did not arise in this early legal context, especially since the Constitution gives the power to decide who is eligible to vote to state governments. It is the states who decide who can vote, subject of course to any federal constitutional requirements. It was not until the passage of the Fourteenth and Fifteenth Amendments just after the Civil War that Native American suffrage could have been considered at all.

Amendments and Legislation

The Fourteenth Amendment, ratified in 1868, defines “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof” as citizens of the United States and of the state in which they reside. The Fifteenth Amendment, ratified in 1870, forbids the states to deny any citizen the right to vote due to their race or color. At first glance, these amendments appear to settle the question of Native American citizenship and voting, but the continuing fiction of Native American sovereignty was used to disparage the citizenship of Native Americans who had not clearly left their tribal lands or reservations. It was argued that they were not “subject to the jurisdiction” of the United States and thus did not fall within the terms of the Fourteenth Amendment. The result was that Native Americans who remained in “Indian country” and who did not dissociate themselves from their tribes continued to be ineligible to vote. This disfranchisement continued throughout the years of the “allotment and assimilation” movement. Under the allotment plan, Native Americans could receive grants of land for their personal use, presumably for farming. Once the land had been worked for twenty-five years, title would vest in the individual owner and he or she then became a full citizen of the state and eligible to vote, at least in the formal sense. The plan failed, largely because the majority of Indians did not care to become farmers. Most Native Americans remained ineligible to vote.

By the beginning of the twentieth century, Congress began to look for other solutions to the continued poverty and disorganization of the Native American tribes. In 1919, Congress passed an act which conferred citizenship on those Indians who had served in the armed forces during World War I. In 1924, the Indian Citizenship Act granted full citizenship to all Native Americans who had been born in the United States, regardless of tribal affiliation or reservation treaty status.

Obstacles to Voting

Thus, in theory, all Native Americans were eligible to vote from 1924 on. In practice, however, many of the same barriers to voting that were used against potential Black voters were raised for prospective Native American voters. Grandfather clauses, poll taxes, and discriminatory literacy tests were all used. Prospective Native Americans voters also had to meet state government standards about severance of tribal relations; Indians who adhered to their tribes were not viewed as “civilized” persons and were therefore ineligible to vote. Opponents of Native American suffrage also argued that because the state had no power over the conduct of Native Americans living on reservations, Native Americans were not “true” residents of the state because the state had no power over Native Americans living on reservations. In some states, Native Americans had to meet the claim that, as wards of the federal government, they were in a state of guardianship and hence legally incompetent to vote. Indeed, Arizona’s Supreme Court maintained this position beginning in 1928 and did not reverse itself until 1948. Since then, however, all legal barriers to Native American suffrage have either been repealed or struck down by the courts.

In areas where the population of Native Americans is disproportionately high, political establishments still occasionally attempt to devise new ways of perpetuating White political control. Contemporary strategies can be subtler than the old. Redistricting to “dilute” the Native American vote is one such strategy. Major problems that formerly suppressed Native Americans voting rights and access have been solved. Both the federal government and the states have come to respect the principle of nondiscrimination in voting.

Voting Rights Act of 1965

The Voting Rights Act of 1965 has been effective in the expansion of voting rights for marginalized groups, including American Indians and Alaska Native citizens of voting age. Through this law, Congress provided for federal voting registrars who can be sent into states and regions where fewer than 50 percent of the eligible voting population is registered and where a voting device like a literacy test has been used. In 1975, Section 203 was added to the Voting Rights Act to expand voting access to members of single language minority groups who have depressed literacy rates and who do not speak English well enough to take part in the electoral process. Section 203 required states and other political subdivisions to provide multilingual ballots and voting information in twenty-four states where Spanish, Asian, American Indian, and Alaska Native dialects and languages were spoken by more than 10,000 or 5 percent of citizens who were old enough to vote, based on data from the decennial US Census. In 2020, federally recognized tribal governments worked with the US Bureau of Indian Affairs and state governments to identify American Indian areas and Alaska Native Regional Corporations covered by Section 203, while the Census Bureau worked with American Indians and Alaska Natives to identify statistical areas eligible for coverage under the section.

Bibliography

Cohen, Felix S. Handbook of Federal Indian Law. Government Printing Office, 1942.

Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. University of Texas Press, 1983.

Dreveskracht, Ryan D. "Enfranchising Native Americans after Shelby County v. Holder: Congress's Duty to Act." National Lawyers Guild Review, vol. 70, no. 4, 2013, pp. 193–229.

"Language Minority Citizens." Civil Rights Division, U.S. Department of Justice, 15 July 2024, www.justice.gov/crt/language-minority-citizens. Accessed 14 Oct. 2024.

McDonald, Laughlin. American Indians and the Fight for Equal Voting Rights. U of Oklahoma P, 2010.

Price, Monroe E., and Robert N. Clinton. Law and the American Indian: Readings, Notes, and Cases. 2d ed. Michie, 1983.

US Dept. of Commerce and US Census Bureau. "Voting Rights Act Amendments of 2006, Determinations under Section 203." Docket Number 21 1029-0221. Federal Register, vol. 86, no. 233, 2021, pp. 69611-18, www.justice.gov/crt/page/file/1460416/dl. Accessed 14 Oct. 2024.