The right to vote is arguably the most significant characteristic of American citizenship. Though not explicitly guaranteed in the U.S. Constitution, the right to vote has been declared fundamental by the U.S. Supreme Court since it "is preservative of other basic civil and political rights." But despite its significance, the franchise has been denied to many groups throughout our nation's history, including blacks, women, and Indians. However, whereas blacks were formally enfranchised with the Fifteenth Amendment (1870) and women with the Nineteenth Amendment (1920), Indians cannot claim one defining historical moment when their right to vote was constitutionally secured. Rather, the struggle for Indian suffrage has been an extraordinarily prolonged, complex, and piecemeal process that has yet to be fully resolved.
Given the political and symbolic importance of the franchise, it might seem incredible that the Constitution does not explicitly grant anyone the right to vote. Except for their needing to adhere to constitutional provisions pertaining to the electoral process and to the specific prohibitions against discrimination in voting based on race (Fifteenth Amendment), sex (Nineteenth Amendment), failure to pay poll taxes (Twenty-fourth Amendment), and age (Twenty-sixth Amendment), the states are free to set reasonable requirements in determining who is eligible to vote in both state and national elections.
Armed with this power, many states, especially those with large Native American populations, imposed severe restrictions on the right of the Indian to vote. For example, some states, such as Colorado, Montana, Nebraska, Oregon, South Dakota, and Wyoming, required that voters be citizens. Although this requirement appears neutral on its face, its discriminatory implications become clear considering the fact that many Indians were not citizens until 1924, when Congress passed the Indian Citizenship Act. Prior to 1924, this requirement barred from the polls all reservation Indians who had not yet been granted citizenship and all nonreservation Indians who could not prove "to the satisfaction of the courts" that they had abandoned their tribal relations.
The states of California, Minnesota, North Dakota, Oklahoma, and Wisconsin imposed a somewhat different but equally burdensome restriction on Indian suffrage, requiring that voters be "civilized." North Dakota's constitution, for example, contained a provision that extended the franchise only to "civilized persons of Indian descent who shall have severed their tribal relations." In Opsahl v. Johnson, decided by the Minnesota Supreme Court in 1917, the state's requirement that voters be "civilized" was defined more specifically. "Tribal Indians," the justices explained, might demonstrate their eligibility "by taking up [their] abode outside the reservation and there pursuing the customs and habits of civilization." Through the discriminatory implications of this decision are obvious, it takes on a larger significance in that it reflected the deep-seated belief that a traditional, tribal lifestyle was inherently inconsistent with, and inferior to, the more "civilized" white way of life.
Other states, such as Idaho, New Mexico, and Washington, disenfranchised the Indian by inserting provisions into their constitutions that disqualified from the polls all "Indians not taxed." These states apparently subscribed to the notion that Indians should not be entitled to full and equal participation in the political community since they did not contribute to the fiscal well-being of the state. This argument seems disingenuous at best, however, considering the fact that whites not taxed were allowed to vote and that Native Americans, though generally exempt from paying taxes on tribal property, frequently paid sales taxes, licensing fees, and other levies.
The states that set the most stringent restrictions on voter eligibility were Arizona, Nevada, and Utah. These states required that voters be not only citizens, but residents and taxpayers as well. In Arizona, the state supreme court in Porter v. Hall, decided in 1928, ruled that Indians should be disqualified from voting because they were under "federal guardianship," a status construed by the court to be synonymous with "persons under disability." This decision stood for twenty years until the court finally reversed itself in Harrison v. Laveen.
State residency requirements were also used to preclude Indian participation at the polls. The state of Utah, for example, disenfranchised the Indian by claiming that Indians residing on reservations did not qualify as residents of the state. Despite an 1881 U.S. Supreme Court decision that declared all Indians to be residents of the state where their reservations were located, the Utah Supreme Court ruled in 1956 in Allen v. Merrill that Indians living on reservations did not meet residency requirements as stipulated in state law. Before the U.S. Supreme Court had time to vacate the decision, which it did in 1957, the Utah state legislature repealed the statute on which the case had been based. In so doing, Utah became the last state to abolish its discriminatory methods of withholding suffrage from Indian people.
In addition to these types of invidious election laws, other tactics and devices, such as literacy tests, poll taxes, and voter intimidation and harassment, were used to discriminate against the Indian at election time. All of these practices were declared illegal, however, when Congress passed the Voting Rights Act of 1965. Though originally enacted to prevent black disenfranchisement, the Voting Rights Act as amended in 1970, 1975, and 1982 had significant implications for Indian voting. When the act was renewed in 1975, for example, Congress inserted a provision designed to protect Native Americans that required twenty-four states to provide bilingual ballots and voter assistance at the polls for linguistic-minority voters. When the act was extended again in 1982, section 2 was amended so as to prohibit any voting law or practice that resulted in discrimination on account of race, color, or linguistic-minority status.
Not surprisingly, manifest attitudes of racial animus clashed with the amended provisions of the Voting Rights Act to produce a dilemma for opponents of Indian voting: how could they continue to disenfranchise the Indian without violating the newly established dictates of federal law? Their solution was simple: they shifted their attention from vote denial to vote dilution.
Perhaps the most predominant method of vote dilution today is the misuse of at-large elections. Under these types of systems, the majority of the residents in a given district can prevent minority voters from electing representatives of their choice if the majority votes as a bloc. This practice was challenged by several Crow and Northern Cheyenne Indians in 1986 in Windy Boy v. County of Big Horn. In that case, the federal district court of Montana ruled that the county's at-large election scheme violated section 2 of the Voting Rights Act and ordered the county and school district to be reorganized into single-member districts.
Single-member districting is not always effective, however, when minority populations are dispersed. In those circumstances, cumulative voting schemes provide a more potent preventative against the devastating effects of vote dilution. Because voters are allowed to cast multiple votes in a cumulative system, they do not have to be part of a majority of the electorate to get a candidate of their choice elected. In Buckanaga v. Sisseton School District, the Sisseton Wahpeton Sioux tribe challenged its district's voting system after years of unsuccessful attempts to elect Indians to the school board. On remand in 1985, a cumulative voting system was adopted that gave voters the option of casting their allotted votes in any combination they wished, thereby providing Indian voters with a more meaningful opportunity for political participation. That this was so can be seen in the results of the May 1990 election: three of the nine school-board members elected were Indians.
Problems of vote dilution have also developed in connection with reapportionment plans. In 1982, a New Mexico court found in Sanchez v. King that the state's reapportionment plan violated the one-person, one-vote rule and ordered the state to redraw its districts. Two years later, in response to Indian and Hispanic claims that the new scheme unlawfully diluted minority voting strength, the court imposed its own redistricting plan so as to bring the state into compliance with the requirements of the Voting Rights Act.
As recent cases suggest, the struggle for Indian suffrage is an ongoing, politically contested process that contains within it the whole panoply of conflicting opinions concerning the Indian's position within society. And though many conflicts remain unresolved, there is reason for cautious optimism as American Indians continue not only to vote in record numbers but to get elected to local, state, and federal offices as well.
Vine Deloria, Jr., ed., American Indian Policy in the Twentieth Century (Norman: University of Oklahoma Press, 1985); Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate the Indians "Redefining Indian Citizenship," 1880-1920 (Lincoln: University of Nebraska Press, 1984); Jeanette Wolfley, American Indian Law Review "Jim Crow, Indian Style: The Disenfranchisement of Native Americans," 16 (1991): 167.
Suzanne E. Evans
University of California at Berkeley
