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Vote Dilution and Suppression in Indian Country

Published online by Cambridge University Press:  09 April 2015

Jean Schroedel
Claremont Graduate University
Ryan Hart
Claremont Graduate University


The struggle for Native American voting rights has lasted more than two centuries. Although the 1924 Indian Citizenship Act granted citizenship to indigenous peoples born within the geographic boundaries of the United States, it did not ensure the right to vote. Because the Constitution gives states the power to determine the “times, places, and manner of holding elections,” many states statutorily denied Native Americans the franchise until federal lawsuits forced them to change. Having the statutory right to vote, however, did not ensure that it could be exercised in a meaningful way. Since the passage of the 1965 Voting Rights Act there have been more than ninety voting rights cases involving Native Americans. While the overall historical trend has been toward extending the vote, periods of enhanced voting rights often have been followed by periods of retrenchment. In this article, we argue that the traditional frameworks used to explain racial inequalities fail to account for the unique character of relations between indigenous peoples and the U.S. government, and we propose a tripartite approach that draws from studies in core–periphery development and “racial institutional orders,” but also considers the many ways that tribal identities intersect with these.

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1. Brennan Center for Justice, Voting Rights & Elections (New York: New York University School of Law, 2012)Google ScholarPubMed, Accessed 1/25/2013. For up-to-date data on the different state laws, see the National Conference of State Legislatures, Voter Identification Requirements (Washington, DC: NCSL, 2013),

2. Most federal laws treat Alaska Natives and Indians as a single group, and while we discuss both in this article, there are some differences. The most important difference is that the U.S. government never signed treaties with Alaska Native populations, a fact that is also true with respect to some major tribes in the lower forty-eight states, such as the Hopi, Tohono O'odham, and Yaqui. See Wilkins, David, American Indian Sovereignty and the U.S. Supreme Court (Austin: University of Texas Press, 1997)Google Scholar, 175. The federal government also never engaged in armed conflicts with Alaska Native populations, so their populations were not decimated in the same manner as indigenous peoples in the lower forty-eight states. Although not generally confined to reservations, Alaska Native culture and traditional ways of life have been denigrated and undermined in ways akin to that experienced by Indian tribes. Although Alaska Natives gained citizenship through the Indian Citizenship Act of 1924, they also were subjected to state laws that disenfranchised them. See Landreth, Natalie and Smith, Moira, “Voting Rights in Alaska 1982–2006,” Southern California Review of Law and Social Justice 79 (2007): 79130.Google Scholar

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9. Most voting rights research does not even give cursory attention to issues involving Native Americans. McCool, Olson, and Robinson, Native Vote: American Indians, the Voting Rights Act, and the Right to Vote, is a notable exception, and we wish to acknowledge that we are indebted to them. We used their appendix of relevant court cases as a starting point for our compilation of cases. We also found their discussion of legal issues, both before and after the adoption of the Voting Rights Act, to be extremely useful in getting us to consider some of the legal aspects of Indian voting rights cases. However, we are responsible for the extension of cases, as well as the categorization of cases and the associated descriptive statistics. More importantly, this research differs from their fine study by providing an analytical framework that places Indian and Alaska Native voting rights struggles firmly within the American political development tradition, while highlighting the unique factors that differentiate their status from that of any other group within the country.

10. Davidson, Chandler and Grofman, Bernard's entire edited book, Quiet Revolution in the South: The Impact of the Voting Rights Act 1965–1990 (Princeton, NJ: Princeton University Press, 1994)Google Scholar, is devoted to case studies of the impact of the Voting Rights Act on African American voting registration and office-holding in eight Southern states. The studies show that the act largely eliminated “first-generation” voting abuses, as well as acting as a powerful deterrent against “second-generation” vote dilution. They go so far as to suggest that much of the struggle in the South at the time of their research involved “third-generation” and “fourth-generation” issues, which deal with the extent that minority officeholders can find “acceptance as active, influential players in the mainstream political game” and whether they are successful in terms of enacting substantive policies that improve “life chances of their minority constituents,” 14. More recent studies include Pei-te Lien, Dianne M. Pinderhughes, Carol Hardy-Fanta, and Christine M. Sierra, “The Voting Rights Act and the Election of Nonwhite Officials,” PS: Political Science & Politics (July 2007): 489–94; and Kousser, J. Morgan, “The Strange Ironic Career of Section 5 of the Voting Rights Act, 1965–2007,” Texas Law Review 86 (March 2008): 667775.Google Scholar

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12. Federal government policies in the periphery were carried out by the Army, the Indian Office, and the General Land Office, all of which played important roles in disputes over Indian-held lands. Stefan Heumann, “The Tutelary Empire: State-and-Nation Building in the 19th Century United States” (Ph.D. Diss., University of Pennsylvania, 2009).

13. Wilkins, American Indian Sovereignty, 32.

14. Rockwell, Stephen J., Indian Affairs and the Administrative State in the Nineteenth Century (New York: Cambridge University Press, 2013), 133–34Google Scholar, 142–44, and 227.

15. While the antistatist character of the American founding is well established, distrust of central authority arguably has been the greatest in those geographic regions most isolated from the centers of economic and political power. During the late eighteenth century and throughout the nineteenth century, white settlers living in the frontier regions were deeply estranged from the eastern elites. Smith, Henry Nash, Virgin Land: The American West as Symbol and Myth (Cambridge, MA: Harvard University Press, 1950)Google Scholar, 51; Kohn, Richard H., “The Washington Administration's Decision to Crush the Whiskey Rebellion,” Journal of American History 59 (1972): 567–84.CrossRefGoogle Scholar

16. Justice Samuel Miller in U.S. v. Kagama, 118 U.S. 375 (1886), 384, described the relationship between Native peoples and non-Indians in the states in the following terms: “They [Indians] owe no allegiance to the States, and receive from them no protection. Because of local ill feeling, the people of the States where they are found are often their deadliest enemies.”

17. King, Desmond S. and Smith, Rogers M., “Racial Orders in American Political Development,” American Political Science Review 99 (February 2005): 7592 CrossRefGoogle Scholar. See also Hochschild, Jennifer L. and Marea, Brenna, “Racial Reorganization and the United States Census 1850–1930: Mulattoes, Half-Breeds, Mixed Parentage, Hindoos, and the Mexican Race,” Studies in American Political Development 22 (Spring, 2008): 77 CrossRefGoogle Scholar, who note, “Whether Indians would be required to remain on the outside edge, or could be included as insiders in the American polity, even if of low status, was contested from the time that Europeans first set foot on what they labeled as ‘America.’”

18. One of the grievances outlined by the signers of the Declaration of Independence was the British Crown's failure to protect colonists on the frontier from the “merciless Indian Savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” Grafton, John, The Declaration of Independence and Other Great Documents of American History, 1775–1865 (Mineola, NY: Dover Publications, 2000)Google Scholar, 8.

19. The concept of racial tutelage was based upon the belief that the subordinated group was incapable of self-governing, but perhaps could be uplifted through education efforts of the dominant group. King and Smith, “Racial Orders in American Political Development,” 81. With respect to Native Americans, Indian agents played a major “tutelary” role. See Heumann, “The Tutelary Empire”; Trennert, Robert A., Alternatives to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1846–5 (Philadelphia: Temple University Press, 1975)Google Scholar; Prucha, Francis Paul, The Great Father: The United States Government and the American Indians (Lincoln: University of Nebraska Press, 1984)Google Scholar. In the nineteenth century, federal government-funded programs designed to promote farming, private property, domestic manufacturing, and Christianity led to the creations of hundreds of schools that provided training to tens of thousands of students. Rockwell, Indian Affairs, 29. See also Alton, Thomas, “Politics, Economics and the Schools: Roots of Alaska Native Language Loss Since 1867,” Alaska History 18 (Fall 2005)Google Scholar, for a discussion of Alaska.

20. Horsman, Reginald, Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism (Cambridge, MA: Harvard University Press, 1981)Google Scholar, identifies the Washington, Jefferson, and Monroe administrations as ones that embarked upon a tutelary role, but describes them as “thwarted by an American population greedy for land,” 114.

21. Wilkins and Stark, American Indian Politics, 33

22. The question of tribal citizenship was at the core of a 2013 Supreme Court decision involving a dispute between adoptive parents and a biological father who is a member of the Cherokee Nation. Although the birth father had signed papers allowing a white couple to adopt the girl, he changed his mind and argued that the 1978 Indian Child Welfare Act provisions, giving tribal nations a say in the adoption of Indian children by non-Indian parents, meant that the girl should be given to him. The South Carolina Supreme Court ruled in favor of the man and removed the girl from the adoptive parents, but the Supreme Court reversed the decision and sent the case back to South Carolina, which then ruled that the girl be returned to the adoptive family. Justice Alito, writing for the 5–4 Supreme Court majority, scathingly noted that the little girl is 3/256ths Cherokee and argued that the Indian Child Welfare Act provisions should not apply. Adoptive Couple v. Baby Girl 570 U.S. ___ (2013). This, however, is a misunderstanding of the distinction between tribal citizenship and race. A key aspect of tribal sovereignty is that the tribes, not outside entities, establish the criteria for tribal citizenship—and the more than 560 federally recognized tribal nations have very different criteria.

23. Shelby County v. Holder, 570 U.S. ___ (2013).

24. Hamilton, Alexander, Madison, James, and Jay, John, The Federalist Papers, ed. Rossiter, Clinton (New York: Penguin Group, 2003)Google Scholar, 265.

25. Deloria, Vine, “Beyond the Pale: American Indians and the Constitution,” in A Less than Perfect Union, ed. Lobel, Jules (New York: Monthly Review Press, 1988)Google Scholar, 251.

26. Hamilton, Madison, and Jay, The Federalist Papers, 157. Thomas Jefferson, probably more so than any of the other Founders, embodies these contradictory views about the fundamental worth of Native peoples. In Notes on the State of Virginia, Jefferson argues that they could become yeomen farmers and be absorbed into the country. However, from 1803 onward, Jefferson advocated the removal of Indians from lands east of the Mississippi, even going so far as to support swindling to gain title to Indian lands. Hirsch, Mark, “Thomas Jefferson, Founding Father of Indian Removal,” National Museum of the American Indian (Summer 2009): 5458.Google Scholar

27. See Emenhiser, JeDon, “A Peculiar Covenant: American Indian Peoples and the U.S. Constitution,” in American Indians and U.S. Politics, ed. Meyer, John M. (Westport, CT: Praeger, 2002): 313 Google Scholar for a synopsis of the relevant constitutional provisions.

28. Johnson v. McIntosh, 21 U.S. 543 (1832).

29. Cherokee Nation v. Georgia 30 U.S. (5 Pet.) I (1831).

30. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

31. The Marshall Court's decisions, creating a constitutional wall of separation protecting tribes from state government actions, endured for more than one hundred years and are based on the concept of “plenary power” that ascribes some elements of sovereignty to tribal governments while also holding these governments in a subordinate position vis-à-vis the federal government. Wilkins, American Indian Sovereignty, 25. By the 1980s, the court had shifted to using a two-prong test to determine whether state laws affecting Indians needed explicit congressional authorization: “the federal preemption test (if a state law is inconsistent with federal law or interferes with overriding federal and tribal interest, it is voided) and the infringement test (if a state's action infringes on the rights of reservation Indians to be self-governing, it is nullified).” More recent decisions of the Roberts Court have significantly expanded the sphere of acceptable state government actions, provided they do not adversely affect the tribes. Wilkins and Stark, American Indian Politics, 114–15.

32. U.S. House of Representatives, Annual Report of the Commissioner of Indian Affairs, 43rd Congress, 1st. sess. H. Ex. Doc. 1, pt. 5, Serial 1601, 1873.

33. McLoughlin, William G., “Experiment in Cherokee Citizenship, 1817–1829,” American Quarterly 33 (1981): 325.CrossRefGoogle Scholar

34. McLoughlin, “Experiment in Cherokee Citizenship,” 3.

35. Kilpinen, Jon T., “The Supreme Court's Role in Choctaw and Chickasaw Dispossession,” The Geographical Review 94 (October 2004): 488.Google Scholar

36. Wilkins and Stark, American Indian Politics, 125–28.

37. McLoughlin, “Experiment in Cherokee Citizenship,” 5.

38. Throughout his political career, Caleb Cushing was one of the leading proponents of Manifest Destiny, going so as far as to argue that inferior races were incapable of self-government and would perish. In a speech to the Massachusetts Assembly, Cushing argued that the white races had a duty to “Christianize and to civilize, to command and to be obeyed, to conquer and to reign. I admit to an equality with me, sir, the white man—my blood and race, whether he be a Saxon of England, or the Celtic of Ireland. But I do not admit as my equals either the red man of America, or the yellow man of Asia, or the black man of Africa.” Reprinted in Horsman, Race and Manifest Destiny, 253. Interestingly, Chief Justice Taney, in the infamous Dred Scott v. Sandford (1857) case, which held that African Americans could never become citizens, endorsed congressional action to award citizenship to Native Americans who left their tribes and adopted white customs.

39. Wolfley, Jeanette, “Jim Crow, Indian Style: The Disenfranchisement of Native Americans,” American Indian Law Review 16 (1991): 167202.CrossRefGoogle Scholar

40. Martin, Jill, “Neither Fish, Flesh, Fowl, Nor Good Red Herring: The Citizenship Status of American Indians, 1830–1924,” in American Indians and U.S. Politics, ed. Meyer, John M. (Westport, CT: Praeger, 2002):5172.Google Scholar

41. Wilkins and Stark, American Indian Politics, 42.

42. McCool, Olson, and Robinson, Native Vote.:5

43. In 1871, a rider to the Department of Interior's appropriations bill included language stating the Indian tribes would no longer be considered sovereign nations capable of making treaties with the United States government. An Act Making Appropriations for the Current and Continuing Expenses of the Indian Department, and for Fulfilling Treaty Stipulations with Various Indian Tribes, 16 Stat. 544 (March 3, 1871).

44. Elk v. Wilkins 112 U.S. 94 (1884).

45. Wilkins and Stark, American Indian Politics, 127.

46. Three important Progressive organizations, the Women's National Indian Association, the Indian Rights Association, and the Lake Mohonk Conference, primarily composed of whites, lobbied for the Dawes Act and assimilation of Native Americans. They espoused the “tutelary” view that Indians could be “civilized” and become part of the great American melting pot. Hanson, Jeffrey R., “Ethnicity and the Looking Glass: The Dialectics of National Indian Identity,” American Indian Quarterly 21 (Spring 1997): 196.CrossRefGoogle Scholar

47. Wolfley, “Jim Crow, Indian Style,” 178.

48. Wilkins and Stark, American Indian Politics, 127–28.

49. Olson, James and Wilson, Raymond, Native Americans in the Twentieth Century (Champaign: University of Illinois Press, 1984)Google Scholar, 73. The Dawes Act and Burke Act, however, gave the federal government the right to sell off excess reservation lands. These actions, as well as seizures of allotment lands in order to pay taxes, resulted in the 138 million acres of lands held by Native peoples in 1887 to be reduced to 47 million acres by 1934. McDonald, Laughlin, American Indians and the Fight for Equal Voting Rights (Norman: University of Oklahoma Press, 2010)Google Scholar, 15.

50. Farrell v. United States, 110 Fed. 942 (1901).

51. Britten, Thomas A., American Indians in World War I: At Home and at War (Albuquerque: University of New Mexico Press, 1997), 176–81Google Scholar; McDonald, American Indians and The Fight For Equal Voting Rights, 18. See Bruyneel, Kevin, “Challenging American Boundaries: Indigenous Peoples and the ‘Gift’ of U.S. Citizenship,” Studies in American Political Development 18 (Spring 2004): 3043 CrossRefGoogle Scholar, for an analysis of views among Native peoples with respect to this “gift” of unilateral citizenship.

52. In 1923, Representatives Gale Stalker (R-NY) and Edgar Howard (D-NE) introduced the first bills to give full citizenship to Indians and Alaska Natives. Both bills died in the House Committee on Indian Affairs, but, the following year, Homer P. Snyder (R-NY), the chair of the committee, introduced almost identical legislation, which was passed into law. See Gary C. Stein, “Indian Citizenship Act of 1924,” New Mexico Office of the State Historian, 2004–2013, Accessed 8/2/2013.

53. Committee on Indian Affairs, House of Representatives, 68th Congress, 1st Sess., 1924, 13–16.

54. McCool, Olson, and Robinson, Native Vote, 8.

55. McDonald, American Indians and the Fight for Equal Voting Rights, 19.

56. Cohen, Felix, Handbook of Federal Indian Law (Washington, DC: Government Printing Office, 1942), 157–58.Google Scholar

57. McCool, Olson, and Robinson, Native Vote, 8.

58. The rationale behind the “Indians not taxed” phrase was explained by the Minnesota Supreme Court in its 1917 Opsahl v. Johnson decision. Because the Red Law Chippewa did not pay taxes on the reservation, they had not “yielded obedience and submission” to the laws of the state, and it would be unfair to have them in a position to impose burdens on tax-paying citizens. Wolfley, “Jim Crow, Indian Style,” 185.

59. McCool, Olson, and Robinson, Native Vote, 11.

60. McCool, Olson, and Robinson, Native Vote, 11–12.

61. Swift v. Leach, 45 N.D. 437 (1920).

62. Cherokee Nation v. Georgia 30 U.S. (5 Pet.) I (1831).

63. Porter v. Hall, 34 Ariz. 308 (1928).

64. More than one-third of all able-bodied Indian men between the ages of eighteen and fifty years served in the military during World War II. They were awarded a very high number of military medals, including two Medals of Honor, fifty-one Silver Stars, forty-seven Bronze Stars, thirty-four Distinguished Flying Crosses, and seventy-one Air Medals. Peterson, “Indian Political Participation,” 123.

65. Cornell, Stephen, “The New Indian Politics,” in American Indians and U.S. Politics, ed. Meyer, John M. (Westport, CT: Praeger, 2002), 9697.Google Scholar

66. Trujillo v. Gurley, Civ. No. 1353 (D.N.M. 1948). The “Indians not taxed” issue was raised again in the mid-1970s when a group of whites in a school district argued Navajo should not be allowed to vote on a school bond issue because they did not pay property taxes. The New Mexico Supreme Court rejected that argument, pointing out that the Navajo provided much of the district's revenue, just not from property taxes (Prince v. Board of Education 1975).

67. Harrison v. Laveen, 67 Ariz. 337 (1948).

68. Allen v. Merrell, 6 Utah 2d 32 (1956); 352 U.S. 889 (1957); 353 U.S. 932, (1957).

69. Wolfley, “Jim Crow, Indian Style,” 189–90.

70. Montoya v. Bolack, 70 N.M. 196 (1962).

71. Wilcox and Stark, American Indians and the American Political System, 9–10 and 130–31.

72. See Hanson, “Ethnicity and the Looking Glass,” 200–2 for more on the NCAI, as well as more radical groups, such as the National Indian Youth Council and the American Indian Movement, which sought to emulate the media-savvy strategies followed by African American civil rights activists.

73. There was an enormous upsurge in Native activism during the 1960s and 1970s, ranging from Indian fish-ins in the Northwest to occupation of Wounded Knee in South Dakota. Most of the large-scale actions that garnered media attention occurred after the passage of the Voting Rights Act in 1965.

74. In discussing the impact of the VRA in different localities, Attorney General Nicholas Katzenbach mentioned that Apache County in Arizona has “a fairly substantial Indian population,” but “not a substantial Negro population.” As part of his argument in favor of literacy tests, Senator Samuel Ervin (D-NC) noted that his state had the fourth-largest Indian population. Voting Rights Legislation, U.S. Senate Judiciary Committee, 89th Congress, 1st Sess., 1965, No. 162, 144, 883.

75. The VRA's nonpermanent provisions are found in Sections 4–9, Section 13, and Section 203.

76. Section 2 was made applicable to the entire country in order to appease southerners, who believed their region was being treated unfairly. Boyd, Thomas M. and Markham, Stephen J., “The 1982 Amendments to the Voting Rights Act: A Legislative History,” Washington and Lee Law Review 40 (1983): 1352.Google Scholar

77. The jurisdictions covered by Section 5 include Alabama, Alaska, Arizona, California (five counties), Florida (five counties), Georgia, Louisiana, Michigan (two towns), Mississippi, New Hampshire (ten towns), New York (three counties), North Carolina (forty counties), South Carolina, South Dakota (two counties), Texas, and Virginia.

78. The Department of Justice was slow in enforcing Section 5. The department did not publish regulations in the Federal Registrar for enforcement of Section 5 until late in 1971. Ball, Howard, “Racial Vote Dilution: Impact of the Reagan DOJ and the Burger Court on the Voting Rights Act,” Publius: The Journal of Federalism 16 (Fall 1986): 35.CrossRefGoogle Scholar

79. There are eighty local jurisdictions where Sections 203 and 4(f)4 provisions requiring minority language assistance apply to Indian and Alaska Native populations. The seventeen states with affected jurisdictions are: Alaska, Arizona, California, Colorado, Florida, Idaho, Louisiana, Michigan, Mississippi, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Oregon, South Dakota, Texas, and Utah. For more on this, see, American Civil Liberties Union, Voting Rights in Indian Country, 11; McCool, Olson, and Robinson, Native Vote, 27.

80. During the 2006 reauthorization, there were attempts to extend the act's reach to encompass other language groups, but the House leadership felt that any such action would endanger renewal. Tucker, James Thomas, The Battle Over Bilingual Ballots: Language Minorities and Political Access (Burlington, VT: Ashgate Publishing, 2009), 5859 Google Scholar and 64.

81. See Campbell, Lyle, American Indian Languages: The Historical Linguistics of Native Americans (New York: Oxford University Press, 1997)Google Scholar, for a discussion of the hundreds of indigenous language groupings.

82. Congressional Record, 94th Congress, 1st Sess., No. 317, 1975, 13606.

83. Congressional Record, 94th Congress, 1st Sess., No. 317, 1975, 13406.

84. The exception was Democratic Senator Mike Gavel, who voted against legislation to exclude Alaska from the minority language provisions.

85. Congressional Record, 94th Congress, 1st Sess., No. 255, 1975, 4829.

86. Congressional Record, 94th Congress, 1st Sess., No. 317, 1975, 13658.

87. The question of what constitutes a “historically unwritten language” is left ambiguous in the law, and, if broadly construed, could exclude all of the indigenous languages of North America, since none were written languages prior to contact with Europeans. Campbell, American Indian Languages.

88. Persily, Nathaniel, “The Promise and Pitfalls of the New Voting Rights Act,” Yale Law Journal 117 (2007): 100–83CrossRefGoogle Scholar. See also Lai, Erica, “Appended Post-Passage Senate Judiciary Report: Unlikely ‘Legislative History’ for Interpreting Section 5 of the Reauthorized Voting Rights Act,” University of Pennsylvania Law Review 156 (2007): 453–90Google Scholar, for a discussion of the Senate Judiciary Committee's unusual action in issuing a postpassage committee report, which argued that Section 5 should be narrowly interpreted. Lai points out that only nine of the nineteen members of the Judiciary Committee signed the report.

89. See King, Desmond S. and Smith, Rogers M., Still a House Divided: Race and Politics in Obama's America (Princeton, NJ: Princeton University Press, 2011)CrossRefGoogle Scholar, 189.

90. Tucker, The Battle Over Bilingual Ballots, 187.

91. Ball, Howard, Krane, Dale, and Krane, Thomas P., Compromised Compliance: Implementation of the 1965 Voting Rights Act (Westport, CT: Greenwood Press, 1982)Google Scholar; King and Smith, Still a House Divided, 173–74.

92. McCool, Olson, and Robinson, Native Vote, 89.

93. American Civil Liberties Union, Voting Rights in Indian Country, 16; Ball, “Racial Vote Dilution,” 29–48; McCool, Olson, and Robinson, Native Vote, 37–39. Some sense of the cost of voting rights litigation can be gotten from litigants' costs in Nick v. Bethel. The case, which was won by Alaska Native litigants, took three years and cost $2 million in attorney fees and $250,000 in out-of-pocket costs. Amici Curiae Brief of the Alaska Federation of Natives, Alaska Native Voters and Tribes in Shelby County v. Holder (2013), 25.

94. Although the staff in the Civil Rights Division had some disputes with political appointees during the Nixon years, such discord has become much more pronounced with each Republican administration. During the George W. Bush administration, enforcement responsibilities for litigation involving voting rights was taken away from career civil rights attorneys and given over to political appointees. Conservative credentials, as attested to via membership in either the Federalist Society or the Republican National Lawyers Association, have replaced legal experience in civil rights litigation as a criterion for hiring. Rich, Joseph D., “The Attack on the Professionalism of the Civil Rights Division,” in The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration, eds. Taylor, William L., Piche, Dianne M., Rosario, Crystal, and Rich, Joseph D. (Washington, DC: Citizens' Commission on Civil Rights, 2007): 1317.Google Scholar

95. McDonald, Laughlin, Pease, Janine, and Guest, Richard, “Voting Rights in South Dakota, 1982–2006,” Review of Law and Social Justice 17 (2007): 205.Google Scholar

96. Landreth and Smith, “Voting Rights in Alaska: 1982–2006,” 79–129; Amici Curiae Brief of the Alaska Federation of Native, Alaska Native Voters and Tribes in Shelby County v. Holder (2013), 34.

97. Thornburg v. Gingles, 478 U.S. 30 (1985).

98. American Civil Liberties Union, Voting Rights in Indian Country, 27. Although Janklow started out as a Legal Services Corporation lawyer on the Rosebud Indian Reservation, he gained political prominence in his first political campaign by promising to forcefully prosecute Indians involved in the 1974 Wounded Knee standoff. Wounded Knee became the main focus of the election, resulting in a resounding victory for Janklow, who got two-thirds of the vote. Sayer, John William, Ghost Dancing the Law: The Wounded Knee Trials (Cambridge, MA: Harvard University Press, 1997)Google Scholar, 174 and 200.

99. Little Thunder v. South Dakota, 518 F. 2d 1253 (1975); U.S. v. South Dakota, 636 F. 2d. 241 (1980).

100. American Horse v. Kundert, No. 84-5159 (D.S.D. Nov. 5, 1984); Fiddler v. Sieker, No. 85-3050 (D.S.D. Oct. 24, 1986). Registration barriers have a very significant effect on voting rates, particularly among racial minorities and low-income citizens. See Rosenstone, Steven J. and Wolfinger, Raymond E., “The Effects of Registration Laws on Voter Turnout,” American Political Science Review 72 (1978)CrossRefGoogle Scholar; Highton, Benjamin, “Easy Registration and Voter Turnout,” Journal of Politics 59 (May 1997).CrossRefGoogle Scholar

101. Black Bull v. Dupree School District, No. 86-3012 (D.S.D. May 14, 1986); Weddell v. Wagner Community School District, Civ. No. 02-4056-KES (D.S.D. 2002).

102. Daschle v. Thune, Civ. No. 04-4177 (D.S.D. 2004).

103. Shirley v. Superior Court for Apache County, 109 Ariz. 510 (1973).

104. Goodluck v. Apache County, 415 F. Supp. 13 (1975); Apache County High School No. 90 v. United States, Case No. 77-1518, p. 15 (D.D.C. 1980).

105. U.S. v. McKinley County, Civ. No. 86-0028M (D.N.M. 1986); U.S. v. New Mexico, Civ. No. 88-1457-SC (D.N.M. 1988); U.S. v. Cibola County, Civ. No. 93-1134-LH/LFG (D.N.M. 1993); U.S. v. Socorro County, No. 93-1244 (D.N.M. 1994); U.S. v. Bernalillo County, No. CV-98-156 (D.N.M. 1998).

106. Mary Annette Pember, “Minnesota's Proposed Voter ID Constitutional Amendment Could Jeopardize Use of Tribal Identification,” Indian Country Today Media Network, October 12, 2012,'s-proposed-id-constitutional-amendment-could-jeopardize-use-of-tribal-identification-/13984. Accessed 2/17/2013.

107. For example, during the 2011–12 legislative session, Kiffmeyer introduced ten bills that would have made it more difficult for citizens to vote. None of these bills had a Democratic cosponsor. Accessed 8/8/2013.

108. The Citizens Equal Rights Alliance is primarily composed of non-Indians living on reservation lands. Many come from ranching and farming families who have lived there for three or four generations and want reservation lands subject to the laws and regulations of state and local government. McCool, Olson and Robinson, Native Vote, 188; Dean Chavers, “Around the Campfire: Indian Hate Groups,” Native Times, November 1, 2011. Accessed 1/4/2014. Citizens Equal Rights Alliance v. Johnson, 1:2007 cv 00074 (2007).

109. McDonald, American Indians and the Fight For Equal Voting Rights, 90–91.

110. Canon, David T., Race, Redistricting, and Representation (Chicago: University of Chicago Press, 1999), 6466.Google Scholar

111. Windy Boy v. Big Horn County, 647 F. Supp 1002 (D.MT. 1986).

112. U.S. v. Blaine County, 363 F.3D 897 (9th Cir. 2004).

113. The Mountain States Legal Foundation (MSLF) is a conservative nonprofit legal foundation supported by foundations funded by the Coors brewing family and Philip Anschutz, a Colorado billionaire known for funding conservative Republican candidates. Many of its leaders are active in national Republican Party circles. MSLF has a long history of battling Indian issues in the West. Patricia Bergies of the Eastern Shoshone Tribal Council argues that the MSLF is committed to “trying to make sure that our voice isn't heard.” Ben Neary, “Indians Question Colorado Firm's Motives in Vote Case,” Native Times, December 6, 2010, Accessed 1/5/2014. U.S. v. Blaine County (2005) request for appeal denied.

114. American Civil Liberties Union, Voting Rights in Indian Country, 31.

115. Kirkie v. Buffalo County, Civ. No. 03-CV-3011-CBK (D.S.D. 2003). In the early 1970s, officials in Apache County gerrymandered county supervisor districts in a similar manner, with the population divided as follows: District 1 with 1,700 people of whom only 70 were Native, District 2 with 3,900 people of whom 300 were Native, and District 3 with 26,700 people of whom 23,600 were Native. When challenged, the plaintiffs got a summary judgment and the county was forced to conform to one-person, one-vote standards. Goodluck v. Apache County, 417 F. Supp. 13 (D.AZ 1976).

116. Blackmoon v. Charles Mix County, 505 F. Supp. 2d 585 (2007).

117. McDonald, American Indians and the Fight for Equal Voting Rights, 107–8.

118. Old Person v. Brown, 182 F. Supp. 2d 1002 (D.MT 2002).

119. McDonald, American Indians and the Fight for Equal Voting Rights, 115.

120. Montana House Resolution No. 3, February 4, 2003, Accessed 1/5/2014.

121. Brown v. Montana Districting and Reapportionment Committee, No. ADV-2003-72 (1st Dist., Lewis and Clark County, July 2, 2003).

122. Jepsen v. Vigil-Giron, Civ. No. D0101 CV 2001-02177 (N.M. 1st Jud. Dist.) (2001).

123. Bone Shirt v. Hazeltine, 461 F.3d 1011, 1024 (8th Cir. 2006).

124. U.S. v. Town of Bartelme, Civ. No. 78-C-101 (E.D. Wisc. 1978).

125. Shakopee Mdewakanton Sioux Community and the U.S. v. City of Prior Lake, 771 F.2d 1153 (8th Cir. 1985).

126. U.S. v. Day County, Enemy Swim Sanitary District, Civ. No. 99-1024 (D.SD 1999).

127. McDonald, American Indians and the Fight for Equal Voting Rights, 140–41.

128. “About Language Minority Voting Rights,” Department of Justice (2012), Accessed 2/7/2013.

129. Amicus Curiae Brief of the Navajo Nation to Shelby County v. Holder (2013), 26.

130. Voting Rights Act: Evidence of Continued Need, Volume 1: Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 2006, 59.

131. McCool, Olson, and Robinson, Native Vote, 74.

132. The Navajo are the largest federally recognized tribe, with 300,000 members in Arizona, New Mexico, and Utah. Even today many of their members have limited English and are functionally illiterate. Among Arizona Indians, the illiteracy rate is nineteen times the national rate. Amicus Curiae Brief of the Navajo Nation to Shelby County v. Holder (2013), 1 and 26.

133. Testimony of Bradley Schlozman, Voting Rights Act: Section 203—Bilingual Election Requirements (Part I), Hearing Before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109 Cong., 1st Sess., 2005, 24–120.

134. U.S. v. Bernalillo County, Civ. No. 98-156BB (D.N.M. 1998).

135. Amicus Curiae Brief of the Alaska Federation of Natives, Alaska Native Voters and Tribes in Shelby County v. Holder (2013), 12. English proficiency levels in the Native areas in Alaska are quite low. In 40 percent of these areas, more than half of all residents fit the criteria for being identified as limited English proficient (LEP), and they have illiteracy rates more than five times greater than the national average. Amicus Curiae Brief of the Alaska Federation of Natives, Alaska Native Voters and Tribes in Shelby County v. Holder (2013), 17.

136. ICTMN staff, “Sizing Up the Vote: The Key Races and Issues Across Indian Country, Part 1,” Indian Country Today Media Network, November 3, 2012; Landreth and Smith, “Voting Rights in Alaska: 1982–2006,” 87.

137. Native Village of Barrow v. City of Barrow (1995).

138. Landreth and Smith, “Voting Rights in Alaska: 1982–2006,” 117.

139. For more on Janklow, see the appendix to the statement of Wade Henderson to House subcommittee considering the renewal of the Voting Rights Act in 2006. Voting Rights Act: Evidence of Continued Need, Subcommittee on the Constitution of the Committee of the Judiciary of the House of Representatives. 109th Congress, 2nd Sess., 2006.

140. American Civil Liberties Union, Voting Rights in Indian Country, 27.

141. American Civil Liberties Union, Voting Rights in Indian Country, 28. When a covered political jurisdiction does not submit changes for preclearance, the burden falls upon the Department of Justice to act. Smaller jurisdictions that fail to submit voting changes often can get away with not submitting. Rodriguez, Victor Andres, “Section 5 of the Voting Rights Act of 1965 after Boerne: The Beginning of the End of Pre-clearance?” California Law Review 91 (May 2003): 808 CrossRefGoogle Scholar. One study found some of the nonsubmitted election changes from South Dakota resulted in significant Indian vote dilution. McDonald, Pease and Guest, “Voting Rights in South Dakota, 1982–2006,” 214.

142. U.S. v. Tripp County, Civ. No. 78-3045 (D.SD 1978); U.S. v. South Dakota, 636 F.2d 241 (8th Cir. 1980). In 1978 and 1983 the General Accounting Office issued reports that criticized the Department of Justice for failing to monitor jurisdictions covered by Section 5 and presented evidence showing that covered jurisdictions were implementing thousands of voting laws and regulations without obtaining clearance. Days, Drew S., “Section 5 and the Role of the Justice Department,” in Controversies in Minority Voting: the Voting Rights Act in Perspective, eds. Grofman, Bernard and Davidson, Chandler (Washington, DC: Brookings, 1992), 6364.Google Scholar

143. Quick Bear Quiver v. Nelson, 387 F. Supp 2d 1027 (D.SD 2005); Bone Shirt v. Hazeltine, 461 F.3d 1011, 1024 (8th Cir. 2006).

144. Apache County v. United States, 256 F. Supp. 903 (D.D.C. 1966).

145. McCool, Olson, and Robinson, Native Vote, 87.

146. National Congress of American Indians, “Access to Elections and Voter Registration a ‘Civic Emergency’ for Native Americans Says NCAI President,” (June 18, 2012).

147. Wang, Tova, Ensuring Access to the Ballot for American Indians and Alaska Natives (New York: Demos, 2012), 67.Google Scholar

148. Wang, Ensuring Access to the Ballot, 7.

149. Aura Bogado, “How Native Voters Are Routinely Disenfranchised,” Color Lines News for Action, October 18, 2012, Accessed 12/10/2012.

150. “Sara Frankenstein,” South Dakota Republican Party Web site, Accessed 1/5/2014.

151. Researchers have found that limiting polling hours depresses voter turnout. Katosh, John P. and Traugott, Michael W., “Costs and Values in the Calculus of Voting,” American Journal of Political Science 26 (May 1982): 361–76.CrossRefGoogle Scholar

152. Brooks v. Gant, Civ. No. 12-5003-KES (D.S.D. 2012).

153. Increasing polling distance negatively impacts turnout across the board, but, not surprisingly, the decline is far larger among people who do not own a car. See research by Haspel, Moshe and Knotts, H. Gibbs, “Location, Location, Location: Precinct Placement and the Costs of Voting,” Journal of Politics 67 (May 2005): 560–73.CrossRefGoogle Scholar

154. Stephanie Woodard, “Oglalas Win Full Early Voting—for 2012,” Indian Country Today Media Network, March 12, 2012, Accessed 2/17/2013.

155. Wandering Medicine v. McCulloch. 2012. Civ. No. 12-135-BLG-RFC (D.M.T.).

156. Wandering Medicine v. McCulloch, No. 12-35926, slip op. (9th Cir. Oct. 30, 2013). Stephanie Woodard, “Native Vote Lawsuit Heads Back to District Court and a New Judge,” Indian Country Today Media Network, November 1, 2013, Accessed 1/5/2014. John Adams, “Judge Who Sent Racist Email About President Obama to Retire May 3,” Montana Center for Investigative Reporting, April 3, 2013, . Accessed 1/6/2013.

157. Woodard, “Oglalas Win Full Early Voting—for 2012.”

158. This view was expressed in a private conversation that the lead author had on May 1, 2014, at hearings of the Lawyers' Committee on Civil Rights Under the Law in Rapid City, South Dakota, with a tribal member who served with McCulloch in the state legislature.

159. Rachel D'Oro, “Eric Holder to Address ‘Outrageous’ Voting Access Conditions for Native Americans,” Huffington Post, June 9, 2014.

160. OJ and Barb Semans, “Huge Win in Wandering Medicine Voting Rights Case for Indian Country. Defendants Agree to Establish Satellite Voting Offices in Montana Indian Reservations and Agree to Pay Plaintiffs' Attorneys Fees in the Amount of $100,000,” Four Directions, Inc. Statement, June 12, 2014.

161. Katosh and Traugott, “Costs and Values in the Calculus of Voting,” 361–76; Gimpel, James G., Dyck, Joshua J., and Shaw, Daron R., “Location, Knowledge, Time Pressures in the Spatial Structure of Convenience Voting,” Electoral Studies 25 (2006): 3558 CrossRefGoogle Scholar; Dyck, Joshua J. and Gimpel, James G., “Distance, Turnout, and the Convenience of Voting,” Social Science Quarterly 86 (2005): 531–48CrossRefGoogle Scholar; Haspel and Knotts, “Location, Location, Location,” 560–73; Brady, Henry E. and McNulty, John E., “Turning Out to Vote: The Costs of Finding and Getting to the Polling Place,” American Political Science Review 105 (2011): 115–34.CrossRefGoogle Scholar

162. Brady and McNulty, “Turning Out to Vote,” 118.

163. Cottier v. City of Martin, Case No. 07-1628 (C.A. 8, May 5, 2010).

164. Associated Press, “Fremont County Protests Fees in Voting Rights Case,” Billings Gazette, May 31, 2012, Accessed 2/10/2013. MSLF also provided counsel in U.S. v. Blaine County (2004), another vote-dilution case involving at-large elections that they lost. See McCool, Olson, and Robinson, Native Vote, 43–44. MSLF also filed an amici curiae brief in support of Shelby County.

165. Large v. Fremont County, Civ. No. 05-CV-270-ABJ (D.W.Y. 2010); Associated Press, “Fremont County Protests Fees in Voting Rights Case.”

166. Jackson, et al. v. Wolf Point School District, CV-13-65-GF-BMM-RKS (D.M.T. 2014).

167. U.S. v. Sandoval County, No. 88-CV-1457-BRB-DJS (2011).

168. U.S. v. Shannon County (2010). Accessed 4/15/ 2013.

169. Nick v. Bethel, No. 3:07-CV-0098 (TMB) (2010).

170. American Civil Liberties Union, Voting Rights in Indian Country, 42; SitNews, “Alaska Native Voters Defend the Constitutionality of the Voting Rights Act; Cite Continuing Need for Act's Protections,” November 9, 2012, Accessed 5/8/2013.

171. Landreth and Smith, “Voting Rights in Alaska: 1982–2006,” 87 and 115. One illustration of the failure of the minority language assistance program in Alaska is that many Natives mistakenly voted for an English-only amendment to the state's constitution. Information about this can be found in Amicus Curiae Brief of the Alaska Federation of Natives, Alaska Native Voters and Tribes in Shelby County v. Holder (2013), 22.

172. Tucker, The Battle Over Bilingual Ballots, 259.

173. Opposition to Native Alaskan voting is not a new phenomenon. One year after the passage of the Indian Citizenship Act, the Alaska territorial legislature passed a literacy test law. At the time, the Alaska Daily Empire ran a political ad in favor of the legislation that described it as, “law to prevent the mass voting of illiterate Indians.” Mary Lochner, “Supreme Court to Hear Voting Rights Challenge,” Anchorage Press November 15, 2012, Accessed 12/11/2012. For a history of language-based voting discrimination in Alaska, see Tucker, The Battle Over Bilingual Ballots, 259–89.

174. National Conference of State Legislators, Voter Identification Requirements.

175. National Congress of American Indians, Voter ID Laws & the Native Vote.

176. Richard Mauer, “Alaska Lawmaker Plans Renewed Push for Voter Photo ID Law Here,” Alaska Daily News, December 8, 2012, Accessed 1/18/2013. The American Legislative Exchange Council (ALEC) comprises more than two thousand state legislators and three hundred private-sector members, primarily from businesses and foundations. They craft model legislation. Mary Kiffmeyer, who refused to accept tribal photo identification in 2004 when she was the secretary of state in Minnesota, is now in the state legislature and serving as the Minnesota chair of the ALEC. See Catharine Richert, “Business-Backed ALEC's Relations with Conservative Lawmakers Riles Democrats,” MPR News, March 15, 2012, Accessed 2/18/13.

177. National Congress of American Indians, Voter ID Laws & the Native Vote, 4.

178. Intertribal Council of Arizona v. Brewer, Civ. No. 3:06-01362-JAT (D.A.Z. 2006). A few days before the landmark voting rights decision in Shelby v. Holder, the Supreme Court struck down Arizona's requirement that individuals provide proof of national citizenship when registering to vote by mail. Tanya Lee, “Leaders Praise Supreme Court Decision to Uphold Voting Rights,” Indian Country Today Media Network, July 8, 2013, Accessed 8/8/2013.

179. For example, in 2005 Wisconsin Republicans stated that they had discovered nine cases of fraudulent voting in Milwaukee, Chicago, Minneapolis, or Madison, but it turned out that none of these were actual cases of voter fraud. Six were cases of clerical error and three involved people with similar names. For a discussion of these and other examples, see Overton, Spencer, “Voter Identification,” Michigan Law Review 105 (February 2007): 646–47.Google Scholar

180. Republican National Lawyers Association, “Voter Fraud Survey,” 2012, Accessed 2/18/2013.

181. Natasha Khan and Corbin Carson, “Comprehensive Database of U.S. Voter Fraud Uncovers No Evidence that Photo ID is Needed,” News21, August 12, 2012, Accessed 2/14/2012.

182. Khan and Carson, “Comprehensive Database of U.S. Voter Fraud.”

183. Overton, “Voter Identification.”

184. Ansolabehere, Stephen and Persilty, Nathaneil, “Vote Fraud in the Eye of the Beholder: The Role of Public Opinion in the Challenge to Voter Identification Requirements,” Harvard Law Review 121 (2008): 1737–74.Google Scholar

185. McDonald, American Indians and the Fight for Equal Voting Rights, 135.

186. American Civil Liberties Union, Voting Rights in Indian Country, 48.

187. American Civil Liberties Union, Voting Rights in Indian Country, 43, 45.

188. Janis v. Nelson, No. CR 09-5019-KES, 2009 U.S. Dist. LEXIS 109569 (D.S.D. Nov. 24, 2009).

189. Hazel Bonner, “ACLU Challenges SD HB 1247,” Lakota Country Times, May 16, 2012, Accessed 1/6/2014.

190. South Dakota Legislature, “Bill History: House Bill 1247,” (2012 Session), Accessed 2/14/2013.

191. See, for example, Thernstrom, Abigail, “Section 5 and the Voting Rights Act: By Now a Murky Mess,” Georgetown Journal of Law & Public Policy 5 (2007): 4178 Google Scholar, which lauds the dramatic increases in African American voting and success in achieving electoral office in the South as evidence that Section 5 is no longer necessary. But Thernstrom fails to consider research indicating this is largely due to the VRA and, in particular, Section 5.

192. Bartlett v. Strickland, 556 U.S. 1 (2009); Northwest v. Austin Municipal Utility District No. One v. Holder 129 S. Ct. 2504 (2009).

193. Suevon Lee, “The Other Crucial Civil Rights Case the Supreme Court Will be Ruling On,” ProPublica, December 10, 2012, Accessed 2/14/2013.

194. Interestingly, in 2009, Arizona, along with some other covered jurisdictions, submitted a brief arguing that meeting Section 5 requirements is a minimal burden and does not impose undue costs on jurisdictions. However, when the governorship switched from Democratic to Republican control, the state switched its position. Amici Curiae Brief of the Navajo Nation to Shelby County v. Holder (2013).

195. SCOTUSblog, “Shelby County v. Holder,”

196. Shelby County v. Holder, 570 U.S. ___(2013).

197. Water, Luke Warm, “South Dakota Is the Mississippi of the North,” Aboriginal Performance 2 (Spring 2005)Google Scholar, Accessed 12/18/2013.

198. Brooks v. Gant, Civ. No. 12-5003-KES (D. S.D. 2012).

199. See Kevin Woster, “Election Board Rejects Resolution Supporting Native American Voting Stations,” Rapid City Journal, August 1, 2013; and Stephanie Woodard, “Native American Vote-Suppression Scandal Escalates,” Huffington Post, August 5, 2013, for quite different recounting of the action.

200. ICTMN, “ATV Protest Rides Through Native American Sacred Sites,” Indian Country Today Media Network, May 12, 2014, Accessed 5/25/2014. Irina Zhorov, “Sen. Enzi Drafts Bill to Define Wind River Reservation Border,” Wyoming Public Media, April 2, 2014, Accessed 5/19/2014.

201. South Dakota Republican Party, The 2012 South Dakota Republican Platform, Accessed 3/18/2014.

202. On the Major World Publications search, we used the following terms: Voting Rights Act AND Native American; VRA AND Native American; Voting Rights Act AND Indian; Shelby AND Native American; Shelby AND Indian; US Supreme Court AND Indian; US Supreme Court AND Native American. Searches with the term Voting Rights Act identified 322 articles, while those with VRA identified only 2 articles. Using Shelby County uncovered 14 articles.

203. See Woodard, “Native American Vote-Suppression Scandal Escalates,” for information about recent actions in South Dakota. The only other mention of the impact of the Voting Rights decision was in an article about possible rewriting of the act to address concerns raised in the Shelby decision. The following is the single reference to Indians: “Enforcement coverage has been triggered by discrimination not only against blacks but also against American Indians, Asian Americans, Alaska Natives and Hispanics.” (Laurie Kellman, “A Republican, a Democrat and a Law,” Washington Post, August 9, 2013).

204. Mark Trahant, “Elections 2012: Look at the Numbers and Indian Country Outperformed,” Indian Country Today Media Network, November 8, 2012,

205. Native Vote Team, “Post-Election Results Webinar Recap and Thank You,” (Washington D.C.: NCAI, November 13, 2012). Accessed 12/10/2012.

206. It is always difficult ascribing electoral success to the voting of any particular subset of the population. This is especially difficult with respect to Native Americans, because there are only very limited data tracking their voting turnout. U.S. senators who arguably won elections by extremely close margins between 2000 and 2012, and whose victories may very well have been due to the high level of support from American Indian voters. The following is a listing of the senators, who in the recent past arguably have owed victories during close election years to Native voters: Maria Cantwell (D-WA) 2000, Tim Johnson (D-SD) 2002, Jon Tester (D-MT) 2006 and 2012, Al Franken (D-MN) 2008, Mark Begich (D-AK) 2008, Lisa Murkowski (R-AK) 2010, and Heidi Heitkamp (D-ND) 2012. Michael Bennett (D-CO) and Harry Reid (D-NV) in 2010 and Martin Heinrich (D-NM) in 2012 got substantial support from Native voters, but their victory margins, while far from comfortable, were enough that one cannot attribute their victories to any single group. In the 2014 off year elections, low turnout among Native American voters was one of the factors that contributed to Democratic Party losses in South Dakota and Alaska. For more on the early elections, see Tristan Ahtone, “Paying Attention to the Native American Vote,” Frontline, November 4, 2008, Accessed 5/25/2014.

207. King and Smith, “Racial Orders in American Political Development,” 75.

208. Mark Trahant, “Supreme Court Sends a Message on Voting Rights,”, July 1, 2013, Accessed 8/12/2013.

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