There is at this moment a resurgent and essential voting rights movement in the US aimed at enfranchising demographic groups that long were intentionally kept from the process of casting a ballot. While most of these pro-democracy initiatives are focused on establishing early voting efforts and wiping away or preventing a re-emergence of Jim Crow laws in the South, the historic inability of Native Americans to have equal access at the ballot box in the West has sadly gone unnoticed until this year.
Native Americans in 2016 experience a disproportionate lack of access to early voting and voter registration services on reservations. None too soon came the ruling earlier this month by US Judge Miranda Du in Nevada that ordered Mineral and Washoe counties to establish early-voting sites and Election Day polling stations on the reservations of two Paiute tribes.
At the heart of the problem is proximity to voter registration offices and ballot boxes. Native Americans must travel extreme distances not only in order to cast an early vote but also in order to register to vote. These are people often so extremely poor and geographically isolated that when it comes to equality of opportunity, their lives give true meaning to the words "unequal access."
As an example, in Rosebud County, Montana white voters travel an average of 16.79 miles from their homes to register to vote, while Native Americans travel an average of 44.85 miles from their homes to register at the county courthouse, according to a study commissioned by the Civil Rights Division of the US Justice Department in 2012.
The Nevada tribes were in a similar situation. In order to register to vote or cast a ballot, members of the Pyramid Lake Paiute Indian Reservation had to make a 96-mile round-trip to and from Reno. The Walker River Paiute Tribe had to make a 70-mile round-trip to and from Hawthorne. In front of Judge Du, we argued that the local government's refusal to make registration and voting more accessible was a blatant attempt to suppress the Native American turnout. Judge Du agreed. Now, about a dozen other tribes in Nevada want those same voting rights made available by the state on their reservations.
The struggle to level the playing field has been a long time in the making. At the forefront of this movement a small but dedicated group of lawyers, policy experts, and activists created the legal model in 2012 in Montana. This became the first line of battle in our evolving nationwide legal effort to improve Native American voting rights. Mark Wandering Medicine became the lead plaintiff in our federal lawsuit filed on behalf of four Indian tribes in Montana — the Northern Cheyenne, Crow, Gros Ventre, and Assiniboine. The plaintiffs contended they were being denied access to voter registration and in person early voting privileges offered to white Montanans. The Native Americans of Montana are some of the poorest of the poor, yet they simply seek to survive on their islands of poverty surrounded by border towns of injustice oblivious to Native American history and their own power and privilege. Wandering Medicine, a Vietnam War veteran, who lost a leg on a reconnaissance mission with his Marine unit, learned how time-consuming and expensive it was for his tribe and others to vote after he discovered they had to make a 180-mile round trip from their homes to the nearest county seat just to register to vote.
On behalf of the plaintiffs, we sought help from Montana Secretary of State Linda McCulloch but were dismissively told to come back "in the spring," with her claiming incorrectly that state law precluded the establishment of satellite offices to register to vote and provide early voting. In addition, there was no chance of a legislative remedy with the Montana state legislature controlled by "Tea Party Republicans" and far too many rank and file citizens simply blind to the local control of access to the ballot box. So we turned to the courts. As we charged in Wandering Medicine v. McCulloch, the delaying tactics by McCulloch ran out the clock for the 2012 elections, and thousands of Native Americans in Montana as a result were denied access to the voting booth four years ago.
Spiritual Native Americans closely involved in the case will tell you it was more than coincidence that along with McCulloch, among Wandering Medicine's adversaries in the case were a clerk and county recorder named Geraldine Custer; a county commissioner named Robert E. Lee; and one of the county seats involved in the case was named after James W. Forsyth, the United States commanding general of the Wounded Knee Massacre. We used the historical background associated to these names to inspire and increase our ranks of supporters, and at times to "psych-out" our opponents within ethical boundaries.
As an enrolled Blackfeet tribal member originally from Montana and now a Native American advocate in Washington, DC, I intervened pro bono on behalf Wandering Medicine and the Montana tribes. Along with Native American advocacy organization Four Directions and other allies, we continue to provide tribes with an aggressive legal and public relations strategy; run Native Americans voter registration drives and voter turnout operations; recruit allies for our movement; and build reputational capital in the states and Washington. It has a created a court room and public relations pressure cooker environment in Montana that is slowly leading to better access to voter registration and the ballot box for the tribes there. However, as is the case in Nevada, our work in Montana is far from finished.
With Montana, and now Nevada, as critical battlefields in the fight for Native American enfranchisement, we (and now others) have used the legal model as a force behind a building nationwide movement. We also have broadened our offensive to include multiple fronts: at the grassroots level locally; in the state and federal courts; in the state and federal legislative bodies; the Justice Department; and in the media. Our goal is to engage in a very aggressive campaign at all levels of the public square. As the activist statesman Frederick Douglas so truthfully noted, "[...] power concedes nothing without a demand. It never did and it never will."
The movement has recruited powerful allies, including both former US Attorney General Eric Holder, and current US Attorney General Loretta Lynch, the latter calling for an end to "the significant and unnecessary barriers that for too long have confronted American Indians and Alaska Natives in attempting to cast their ballots." Attorney General Lynch has given meaning to her words by seeking enactment of voting rights legislation by the Congress; enactment into federal law would be the greatest achievement for the Native American franchise since the First Americans obtained the right to vote in 1924 (and that was federal action; many states continued to enact "Jim Crow of the West" policies that prevented Native Americans from voting). As our rallying cry goes, "First Americans were the last Americans to receive the right to vote in the US."
Undoubtedly, the most critical element to the continued success of our movement's voting rights efforts is firmly rooted in our empathy for others, and that of those who have joined our lawsuits and our cause, including the Justice Department, Native American organizations, legal advocates, activists and academics. Research cited by Jason Marsh, of the Greater Good Science Center at the University of California Berkeley, suggests that empathy is an important ingredient to moral action; and, a significant study by Samuel and Pearl Oliner looked for commonalities among people who had rescued Jews during the Holocaust and found the rescuers were deeply empathetic people who from a young age were encouraged by their parents to take other people's perspectives.
For those of us specifically in the legal profession, the importance of empathy in law, public policy and leadership can be found in the contemporary words of a former constitutional law professor and now President of the United States of America. In September 2005, then-Senator Barrack Obama stood on the US Senate floor, and set forth his litmus test for the chief justice of the United States Supreme Court:
"[... that] adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy ..."
So, for those of us who seek a remedy to injustices carried out against Native Americans, William Blake speaks to us in his poem, "Songs of Innocence On Another's Sorrow:"
See another's woe
And not be in sorrow too?
Can I see another's grief,
And not seek for kind relief?
Tom Rodgers is a Washington, DC-based lawyer engaged in Native American economic and social empowerment advocacy at Carlyle Consulting. Rodgers had gained national attention a decade ago as a whistle-blower that exposed disgraced lobbyist Jack Abramoff for bilking tribes out of millions of dollars. Rodgers is also working to win the return of the bones and spirit of legendary athlete Jim Thorpe to his Native American home in Oklahoma.
Suggested citation: Tom Rodgers, For Native Americans, Jim Crow is Alive & Well in the West, JURIST - Professional Commentary, November 3, 2016, http://jurist.org/hotline/2016/11/Tom-Rodgers-native-americans.php
This article was prepared for publication by Val Merlina, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at