Justice News

Associate Attorney General Tony West Speaks at the National Congress of American Indians 2014 Midyear Conference
Anchorage, AK
United States
Monday, June 9, 2014

Thank you, Chairman [Brian] Cladoosby, for that kind introduction. 

It’s wonderful to be here in Alaska, and it's good to be back with NCAI.  As the preeminent defender of American Indian and Alaska Native rights, this organization is a singularly important voice in the push for tribal sovereignty, and we at the Justice Department are proud to stand with you in that effort.

As pleased as I am to be with you all, I also know that many of us gather here with heavy hearts after the untimely loss of Gaye Tenoso, a dear colleague and a trailblazing champion for Native people.  As almost everyone in this room knows, Gaye most recently served as Deputy Director of the our Office of Tribal Justice, but her distinguished career at the Department of Justice spanned nearly three decades during which she was a tireless and respected advocate for voting rights and her work helped empower so many across this country. 

As an enrolled member of the Citizen Potawatomi Nation and only the fourth American Indian attorney at the Department when she joined in 1985, Gaye was one of the most senior Native Americans ever to serve in the Justice Department.  She worked tirelessly to ensure that Native American voices were heard at all levels within the Department and across the federal government.  Gaye was a kind and loyal friend to many, and at this time, I ask that we take a moment of silence as we remember and honor her and send our thoughts and prayers to Gaye's husband, Don.

Earlier today, Attorney General Eric Holder announced the Administration’s plans to consult with tribes on an issue that Gaye devoted much of her career to – assuring that American Indians and Alaska Natives have a meaningful opportunity to claim their right to vote.

The right to vote -- the right to choose who will speak and act in our names; the right to express our sovereignty over our government; a right that is, to paraphrase one American President, the foundation on which the temple of Liberty is built because it protects all other rights -- that right, more than any other, is what defines us as joint and equal members of a democratic society. 

And yet it is a tragic irony that in this country -- history's greatest democratic experiment -- it is First Americans who, for a variety of reasons, have, for decades, too often been deprived the right vote.

Standing by as Native voices, for whatever reason, are shut out of the democratic process is not an option.  That is why the Attorney General and I support legislative steps that will guarantee voters have access to polling places on Indian reservations and in Alaska Native villages. We seek formal consultation on a proposal that would give American Indian and Alaska Natives a polling place in their community, somewhere to cast their ballots and ensure their voices are heard -- something most other citizens already take for granted. 

We take this step because voting is a legal right we guarantee to our citizens.  We do it because it is right.  And we do it because our shared history compels no less.

Justice Hugo Black reminds us in his dissent in the Tuscarora Indian Nation case that “[g]reat nations, like great men, should keep their word.”  And yet the same Supreme Court Justices who called voting the “fundamental political right” just two years earlier held that American Indians were not protected by the voting-related provisions of the Fourteenth and Fifteenth Amendments to the U.S. Constitution.  Here in Alaska, a 1915 territorial statute among other things compelled an Alaska Native before he could vote to obtain the endorsement of at least five white U.S. citizens who had determined “that in their best judgment such Indian ha[d] abandoned all tribal customs and relationship[s].”

Even after the Indian Citizenship Act of 1924 brought First Americans within the protections of the Constitution's voting amendments, states with large tribal populations continued to use a variety of discriminatory devices to keep Native voters off the rolls.  And while many of us know the story of African-American disenfranchisement that sparked Freedom Summer, which began 50 years ago this month, the history of Native disenfranchisement it is no less disgraceful.

Shortly after the Indian Citizenship Act was passed, Arizona decided that a nineteenth-century judicial opinion describing the federal-tribal relationship as “resembl[ing] that of a ward to his guardian” allowed it to deny the vote to Indians living on reservations because the state constitution excluded persons who were either “under guardianship, . . . or insane.” 

And throughout the country, many states imposed English-language literacy tests in order to register, practices that resulted in the unfair exclusion of countless citizens – including numerous American Indians and Alaska Natives.  Indeed, Native people in particular suffered the compound injury of being denied the educational opportunities that would have enabled them to register and vote precisely because their communities lacked the political clout to obtain good public schools.

So finally in 1975, recognizing the barriers to full participation that Native Americans continued to confront, Congress not only permanently prohibited literacy tests throughout the United States, but also 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 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 effective participation -- a powerful statutory tool that for nearly 40 years helped protect the voting rights of First Americans until the Supreme Court invalidated the use of Section 4's formula to enforce Section 5's protections just a year ago this month. 

A number of jurisdictions with large Native American populations who have limited English proficiency – in six different states including Alaska – are also covered by Section 203 of the Voting Rights Act, which requires bilingual election materials and assistance.

But despite these reforms, and in the wake of some judicial setbacks, participation rates among American Indians and Alaska Natives continue to lag behind turnout rates among non-Native voters.  For example, here in Alaska, turnout among Alaska Natives often falls 15 to 20 or more percentage points below the non-Native turnout rate.

The causes of these disparities are complex.  Lingering effects of previous de jure and de facto discrimination play a role, as do socioeconomic conditions:  among all Americans, political participation goes up with income and education.  So perhaps it is not surprising that political participation by Native Americans, whose communities suffer disproportionately from high poverty and struggling public schools, consistently trails that of non-Natives.

Not surprising, perhaps, but not acceptable, either.  Because while there are many reasons for this participation gap, we know that there are two factors in particular that we can and must address.  The first is that many American Indians and Alaska Natives live far from established polling places.  The second is that, in some tribal communities, many citizens face language barriers.  These two factors, alone and in combination, create special challenges.

In Blaine County, Montana, 45 percent of the residents are tribal members.  And while Blaine County offers its residents early voting, it is only offered in the county seat, which is many miles from the Fort Belknap Reservation where many of the county's tribal members live.  For Native voters who live on the reservation -- folks who are three times less likely than non-Native residents to live in households with cars -- they have to travel more than three times as far to benefit from Montana’s early voting period.

Or consider Kasigluk, a Yup’ik village fifteen minutes from Bethel by air.  According to the evidence presented to Congress, “Election Day” there can better be described as “Election Hour.”  You see, the village is separated into two parts by a river and there is no bridge.  So on the first Tuesday after the first Monday in November, an election official announces over a marine radio that anyone who wants to vote in one part of the village has to come down to the community center no later than 11:30 a.m.  At 11:30, the official collects the election materials, packs up the single ballot machine, drives it down to the river by four-wheeler and loads it onto a boat to cross over to the other side.  Once the ballot materials reach the other side, then the citizens in the other part of the village have a couple of hours to vote.

In one sense, though, the voters of Kasigluk are fortunate:  At least they have a polling place.  In many other Native villages, the Alaska Division of Elections has sought to eliminate the local polling place altogether.  In 2008, the Department of Justice used the Voting Rights Act’s preclearance process to put the brakes on Alaska’s plans for “precinct realignment": a proposal to combine Native villages like Levelock and Kokhanok, or Tatitlek and Cordova, into a single precinct with a single polling place -- despite the fact that these communities are more than 75 miles apart and accessible to each other only by air or boat. 

But since the Supreme Court’s decision last June in Shelby County v. Holder, the Justice Department has lost the ability to use the Voting Rights Act's preclearance tool to prevent moves like Alaska’s proposed "precinct realignment" that could have a discriminatory impact on Native American voters. 

Now for some potential voters, the inaccessibility of polling places may only be a matter of inconvenience, since they can vote absentee.  But for many Native voters, that option is far less accessible because they receive little or no assistance in navigating the bureaucratic process for obtaining and casting an absentee ballot.

Moreover, notwithstanding certain provisions of the Voting Rights Act, many jurisdictions with large numbers of American Indian or Alaska Native citizens have failed to provide bilingual election materials or adequate language assistance at the polls.  In Cibola County, New Mexico — the target of a decade’s worth of enforcement litigation by the Department of Justice — the Department had to intervene earlier this year to prevent the county’s plan to eliminate voting-rights coordinators to train poll-workers and provide election information to Navajo- and Keres-speaking voters. 

And here in Alaska, the Justice Department filed a statement of interest just last week in the ongoing Toyukak case over similar difficulties with respect to bilingual election materials and assistance.

Because if remote geography or the inability to speak English do not free any of us from the responsibilities and obligations of citizenship, then they should not impede the exercise of rights to which we are all entitled.

So we must redouble our efforts to ensure that American Indians and Alaska Natives have a full and equal voice in our democratic dialogue. 

To accomplish this, we propose that the Department of Justice and tribal governments consider whether to recommend to Congress legislation that would require any state or local election administrator 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.  Because as many of you know, the location of polling places is a decision left essentially in the hands of state and local governments.  They decide how many polling places to have and where to locate them.

Our proposal would give American Indian and Alaska Native voters a right that most other citizens take for granted: a polling place in their community where they can cast a ballot and receive voter assistance to make sure their vote will be counted.  By bringing the voting process to our fellow citizens who live on reservations or in Native villages, we can help to ensure that the election process is more sensitive to the distinctive needs of tribal voters.

Now obviously, a proposal such as this raises a number of questions.  How should such polling places be operated?  Should the state or the tribal governments themselves staff the polling places?  How should states that authorize and handle early voting on tribal lands? 

There are all of these questions and more, and we look forward to hearing from you and formally consulting with tribal officials to answer them.  In consultation with you, we hope to craft a legislative proposal that will move us closer to the day when the United States fully realizes the promise that American Indians and Alaska Natives are full and equal participants in our democratic process; a long experiment in self-governance; closer to the day when Native peoples can claim their rights through the votes they cast; closer to the day when all of us, Native and non-Native alike, can enjoy the rights for which so many Native American men and women fought and died -- the Code Talkers and Cold War Warriors and so many others who proudly wore the uniform and whose continued service today helps secure the freedoms we enjoy right here, in this moment and in this place.

My friends, ours is a common history and a shared destiny; a future that is ours to shape.  A future that can be defined by sovereignty and self-determination; by resilience and sustainability and economic opportunity; a future unclouded by violence, in which the Seventh Generation is healthy, happy and strong.

That is the shared vision that unites all of us in this room.  And for those of us who are privileged to serve the Nation at this particular moment, that vision is our charge and our challenge; and to make it real know that we support you, proudly stand with you, and will work alongside you, today and in all the days ahead.

Thank you very much.

Updated September 17, 2014