Voting rights of American Indians

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

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

Questions of American Indian 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. The states 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 American Indian 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 one the right to vote on account of race or color. At first glance, these amendments appear to settle the question of American Indian citizenship and voting, but the continuing fiction of American Indian sovereignty was used to undermine the citizenship rights of American Indians who had not clearly left their tribes 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 American Indians who remained in “American 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, American Indians 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 American Indians did not care to become farmers. Most American Indians 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 American Indian tribes. In 1919, Congress passed an act which conferred citizenship on those American Indians who had served in the armed forces during World War I. In 1924, the Indian Citizenship Act granted full citizenship to all American Indians who had been born in the United States, regardless of tribal affiliation or reservation treaty status.

Obstacles to Voting

Thus, in theory, all American Indians 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 American Indian voters. Grandfather clauses, poll taxes, and discriminatory literacy tests were all used. Prospective American Indian voters also had to meet state government standards about severance of tribal relations; American Indians who adhered to their tribes were not viewed as “civilized” persons and were therefore ineligible to vote. Opponents of American Indian suffrage also argued that because the state had no power over American Indian conduct on the reservation, the American Indians were not “true” residents of the state. In some states, American Indians 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 American Indian suffrage have either been repealed or struck down by the courts.

In areas of heavy American Indian population, political establishments still occasionally attempt to devise new ways of perpetuating white political control. Contemporary strategies can be subtler than the old. Redistricting so as to “dilute” the American Indian vote is one such strategy. Today the major problems that formerly frustrated the American Indian desire to vote have been solved. Both the federal government and the states have come to respect the principle of nondiscrimination in voting.

Voting Rights Act, 1965

The Voting Rights Act of 1965 has been particularly effective in the expansion of voting rights for minorities. In 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, the act was expanded to require states to provide bilingual ballots and voting information in twenty-four states where Spanish, Asian, Indian, and Alaskan dialects and languages are spoken by large numbers of voters. Thus, the language barrier that discouraged many non-English-speaking minority group members has been largely eradicated.

Bibliography

Cohen, Felix S. Handbook of Federal Indian Law. Washington, DC: Govt. Printing Office, 1942. Print.

Deloria, Vine, Jr., and Clifford M. Lytle. American Indians, American Justice. Austin: U of Texas P, 1983. Print.

Dreveskracht, Ryan D. "Enfranchising Native Americans after Shelby County v. Holder: Congress's Duty to Act." National Lawyers Guild Review 70.4 (2013): 193–229. Print.

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

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