Calling on Congress to Protect the First Right for First Americans

Courtesy of Acting Associate Attorney General Stuart F. Delery

As we pause to remember our fallen heroes this Memorial Day weekend, we remember also that the First Americans – Native Americans – have answered the call to service throughout our nation’s history, and have fallen on battlefields around the world.  Sadly, that proud tradition of service has not always been answered with  the blessings of citizenship, including access to voting polls.                

Last week the Department of Justice proposed legislation that would require states or localities whose territory includes part or all of an Indian reservation, an Alaska Native village, or other tribal lands to locate at least one polling place in a venue selected by the tribal government.   It would require states to make voting machines, ballots, and other voting materials and equipment available at tribal polling places to the same extent that they are available at other polling places in the state.  By these and other measures, put simply, it would guarantee the same level of access to voting First Americans as most voting Americans enjoy today. 

The causes for this gap in voter participation rates are complex and have been long in the making.  American Indians and Alaska Native people have faced a history of discrimination affecting their right to vote and were not conferred citizenship until 1924.  Even after this, many states continued to disenfranchise Indians by refusing to treat them as state residents and by imposing literacy tests.  As recently as 1948, Indians, including veterans like the Navajo Code Talkers who recently had returned from the battlefields of World War II, were barred from voting in Arizona and New Mexico. 

In 1975, recognizing the barriers to full participation that Native Americans continued to confront, Congress expressly included American Indians and Alaska Natives as protected groups under the special provisions of the Voting Rights Act.  Sections 4 and 5 of the Voting Rights Act prohibited many jurisdictions with large American Indian or Alaska Native populations from changing their voting laws until they could prove that the change would not create new barriers to participation.  A number of jurisdictions with large Native American populations that have limited English proficiency — in six states, including Alaska — are also covered by Section 203 of the Voting Rights Act, which requires bilingual election materials and assistance.

Despite these reforms, participation rates among American Indians and Alaska Natives continue to lag behind turnout rates among non-Native voters.   Estimates suggest that nationwide, while nearly 64 percent of non-Native adult citizens cast a ballot in the 2008 presidential election, less than 48 percent of Native American adult citizens voted. Part of that gap is attributable to differences in registration rates; but even among registered voters, the turnout among American Indians and Alaska Natives nationwide falls 5 to 14 percentage points below that of other racial and ethnic groups. And the gap with respect to Alaska Natives is especially large: Turnout among Alaska Natives often falls 15 to 20 or more percentage points below the non-Native turnout rate. 

There are many examples of the problems American Indian and Alaska Native voters have faced getting to the polls. Residents of the Cheyenne River Sioux Reservation in South Dakota had to travel up to 150 miles roundtrip to vote until a federal court ordered the establishment of polling places on the reservation.  And in Alaska, polling places to which Alaska Natives have been assigned are sometimes located across a river or other body of water or across a mountain range that is impassable on Election Day. The Alaska Division of Elections has assigned some Native villages to polling places that are 75 miles away and accessible only by air or boat.  

For some potential voters, the inaccessibility of polling places poses only a minor barrier, since they can instead vote absentee. But that option is far less manageable for American Indian or Alaska Native voters with limited English proficiency, because they receive little or no assistance in navigating the bureaucratic process for obtaining and casting an absentee ballot. In Alaska, for example, the state has designated dozens of Yup’ik-speaking Native villages as “permanent absentee voting” sites where voters must fill out an English-language application to vote absentee in each election. 

Currently, federal law does not specifically address the location of polling places, leaving the decision essentially in the hands of each state which in turn often give that responsibility to local jurisdictions.   

Given the continued difficulties faced by American Indian and Alaska Native voters, this legislation is long overdue and needed if we are to adequately safeguard Native Americans’ voting rights.  As citizens of a nation founded upon the principles of liberty and equality, Native Americans have faced unacceptable barriers to participating in the franchise, a situation aggravated by a history of discrimination, poverty and — significantly — great distances from polling places.   The legislation proposed today would address this unacceptable gap and we look forward to working with Congress to see it enacted.