Empowerment of American Indians and the effect on political participation

Previous studies of minority political behavior have demonstrated that empowerment, as measured by the election of a minority person to public office, has positive effects on participation among the members of the minority community. Although the empowerment theory has yet to be applied to American Indians, it shows much promise in explaining participation rates among this minority group because of the theory's emphasis on political context; and attitudinal factors. This dissertation explored the role of empowerment on American Indian participation, first by comparing turnout prior to empowerment to turnout post empowerment in three counties in the West: San Juan County, Utah; Big Horn County, Montana; and Roosevelt County, Montana. The findings indicate that turnout among Indians after empowerment, as defined by an Indian holding elected office, was higher than turnout prior to empowerment because of the positive effect of empowerment on perceptions and attitudes among American Indians. The election of an Indian to county office was a major context;ual change in each of the three counties, and the change had a positive impact on voter participation among Indians by influencing perceptions of government and attitudes of American Indians. Furthermore, the positive effect of empowerment on American Indian voters is both immediate and long-lasting. The positive effect on American Indian political behavior is evident immediately after empowerment, that is, Indians vote at higher rates in the first election following empowerment than prior to empowerment. Turnout continues to increase over time for American Indians, in contrast to non-Indian populations, indicating the long-lasting, positive effects of empowerment on Indian political behavior.

EMPOWERMENT OF AMERICAN INDIANS AND THE EFFECT ON POLITICAL PARTICIPATION by Jennifer L. Robinson A dissertation submitted to the faculty of The University of Utah in partial fulfillment of the requirements for the degree of Doctor of Philosophy Department of Political Science The University of Utah December 2010 Copyright © Jennifer L. Robinson 2010 All Rights Reserved Th e Uni v e r s i t y o f Ut a h Gr a dua t e S cho o l STATEMENT OF DISSERTATION APPROVAL The dissertation of Jennifer L. Robinson has been approved by the following supervisory committee members: Matthew J. Burbank , Chair May 12, 2010 Date Approved Susan M. Olson , Member May 12, 2010 Date Approved Lauren Holland , Member May 12, 2010 Date Approved Richard Green , Member May 12, 2010 Date Approved Gregory Thompson , Member May 12, 2010 Date Approved and by Matthew J. Burbank , Chair of the Department of Political Science and by Charles A. Wight, Dean of The Graduate School. ABSTRACT Previous studies of minority political behavior have demonstrated that empowerment, as measured by the election of a minority person to public office, has positive effects on participation among the members of the minority community. Although the empowerment theory has yet to be applied to American Indians, it shows much promise in explaining participation rates among this minority group because of the theory's emphasis on political context and attitudinal factors. This dissertation explored the role of empowerment on American Indian participation, first by comparing turnout prior to empowerment to turnout post empowerment in three counties in the West: San Juan County, Utah; Big Horn County, Montana; and Roosevelt County, Montana. The findings indicate that turnout among Indians after empowerment, as defined by an Indian holding elected office, was higher than turnout prior to empowerment because of the positive effect of empowerment on perceptions and attitudes among American Indians. The election of an Indian to county office was a major contextual change in each of the three counties, and the change had a positive impact on voter participation among Indians by influencing perceptions of government and attitudes of American Indians. Furthermore, the positive effect of empowerment on American Indian voters is both immediate and long-lasting. The positive effect on American Indian political behavior is evident immediately after empowerment, that is, Indians vote at higher rates in the first election following empowerment than prior to empowerment. iv Turnout continues to increase over time for American Indians, in contrast to non-Indian populations, indicating the long-lasting, positive effects of empowerment on Indian political behavior. TABLE OF CONTENTS ABSTRACT ........................................................................................................................................ iii LIST OF TABLES ....................................................................................................................... viii LIST OF FIGURES .........................................................................................................................x Chapters 1 INTRODUCTION ....................................................................................................................1 2 THE RIGHT TO VOTE FOR AMERICAN INDIANS .............................................................5 History of Voting Rights for American Indians ............................................................6 Voting Rights Act of 1965 ...........................................................................................22 The Voting Rights Act and Supreme Court Rulings ...................................................27 Voting Rights Cases in Indian Country .......................................................................35 The Impact of the Voting Rights Act on American Indians .......................................38 3 UNDERSTANDING POLITICAL PARTICIPATION ...........................................................41 The Traditional Model and Individual Characteristics ................................................43 Empowerment Theory .................................................................................................54 Applying the Empowerment Theory to American Indians ..........................................58 4 METHODS ...............................................................................................................................61 San Juan County, Utah .................................................................................................63 Big Horn County, Montana..........................................................................................63 Roosevelt County, Montana.........................................................................................64 Limitations of This Study ............................................................................................70 Ethical and Political Considerations Related to Methods ............................................71 5 SAN JUAN COUNTY, UTAH..................................................................................................75 San Juan County, Utah Background ............................................................................75 History of Voting Discrimination in San Juan County, Utah ......................................78 Voting Rights Act Case in San Juan County, Utah .....................................................81 Findings for San Juan County, Utah: Election Turnout Data ......................................83 vi Findings for San Juan County, Utah: Interview Data ................................................102 Conclusion .................................................................................................................105 6 BIG HORN COUNTY, MONTANA .....................................................................................107 Big Horn County, Montana Background ...................................................................107 History of Voting Discrimination in Big Horn County, Montana .............................109 Voting Rights Act Case in Big Horn County, Montana ............................................111 Findings for Big Horn County, Montana: Election Turnout Data .............................114 Findings for Big Horn County, Montana: Interview Data .........................................132 Conclusion .................................................................................................................136 7 ROOSEVELT COUNTY, MONTANA .................................................................................137 Roosevelt County, Montana Background ..................................................................137 History of Voting Discrimination in Roosevelt County, Montana ............................138 Voting Rights Act Case in Roosevelt County, Montana ...........................................140 Findings for Roosevelt County, Montana: Election Turnout Data ............................141 Findings for Roosevelt County, Montana: Interview Data ........................................157 Conclusion .................................................................................................................159 8 CONCLUSION .......................................................................................................................161 San Juan County, Utah ...............................................................................................164 Big Horn County, Montana........................................................................................165 Roosevelt County, Montana.......................................................................................167 American Indians and the Empowerment Theory .....................................................168 Voting Rights Literature ............................................................................................170 Final Remarks ............................................................................................................172 Appendices A: AMERICAN INDIAN VOTING RIGHTS ACT CASES ......................................................174 B: SECTION 5 COVERED JURISDICTIONS ...........................................................................178 C: SECTION 203 COVERED JURISDICTIONS FOR AMERICAN INDIAN AND ALASKAN NATIVES, EFFECTIVE 2002 .......................................................182 D: SAN JUAN COUNTY, UTAH, PRECINCT MAP, 1986-2008 ............................................186 E: SAN JUAN COUNTY, UTAH, POPULATION DENSITY FOR AMERICAN INDIANS, WITH AN OVERLAY OF THE PRECINCTS, MAP .......................188 F: BIG HORN COUNTY, MONTANA, PRECINCT MAP, 2008 .............................................190 vii G: BIG HORN COUNTY, MONTANA, POPULATION DENSITY FOR AMERICAN INDIANS, WITH AN OVERLAY OF THE PRECINCTS, MAP ..............................................192 H: ROOSEVELT COUNTY, MONTANA, PRECINCT MAP, 2008 ........................................194 I: ROOSEVELT COUNTY, MONTANA, COMMISSION DISTRICTS AND PRECINCT LINES MAP, 2002-2008 ...............................................................................196 J: ROOSEVELT COUNTY, MONTANA, POPULATION DENSITY FOR AMERICAN INDIANS, WITH AN OVERLAY OF THE PRECINCTS, MAP, 2008 .............198 REFERENCES ............................................................................................................................200 LIST OF TABLES Table Page 2.1: States with Literacy Requirements for Voting, 1940 .............................................................23 2.2: American Indian Voting Rights Cases by Type, 1965 to 2010 ..............................................36 2.3: American Indian Voting Rights Cases by State, 1965 to 2010 ..............................................37 3.1: Logistic Regression Results of Peterson's Study, Combined 1990 and 1992 Data ..............49 3.2: Black Political Empowerment, Race, and Participation .........................................................57 5.1: Population Trends for San Juan County, Utah, 1980-2008 ...................................................77 5.2: Precincts in San Juan County, Utah (1986-2008) ...................................................................87 5.3: San Juan County, Utah, Election Turnout, 1978-2008, All Precincts ....................................88 5.4: San Juan County, UT, Turnout 1978-2008, Turnout in "Indian Precincts" (those partially or completely on reservation) .........................................................................93 5.5: San Juan County, UT, Turnout 1978-2008, Turnout in "Non-Indian Precincts" ...................95 5.6: San Juan County, UT, Turnout 1978-2008, Turnout in Reservation Precincts (precincts completely on reservation) ............................................................................98 5.7: San Juan County, Utah, Election Turnout, 1978-2008, Off-Reservation Precincts (precincts that are completely or partially off the reservation) ...................................101 6.1: Population Trends for Big Horn County, MT, 1980-2008 ..................................................109 6.2: Precincts in Big Horn County, Montana, 1978-2008 ...........................................................117 6.3: Precincts in Relation to the Reservation in Big Horn County, Montana, 2004-2008 ...................................................................................................................118 6.4: Big Horn County, MT, Election Turnout, 1978-2008, All Precincts ...................................120 ix 6.5: Big Horn County, MT, Turnout for Indian Precincts (precincts either partially or completely on reservation) ..........................................................................................125 6.6: Big Horn County, MT, Turnout in Non-Indian Precincts.....................................................127 6.7: Big Horn County, MT, Turnout for Reservation Precincts ..................................................129 6.8: Big Horn County, MT, Turnout for Off-Reservation Precincts (precincts that are completely or partially off the reservation) ................................................................131 7.1: Population Trends for Roosevelt County, MT, 1990-2008 ..................................................138 7.2: Precincts in Roosevelt County, Montana, 1996-2008 ..........................................................144 7.3: Precincts in Relation to the Reservation in Roosevelt County, Montana, 2004-2008 ...................................................................................................................144 7.4: Roosevelt County, Montana, Election Turnout, All Precincts, 1996-2008 ..........................146 7.5: Roosevelt County, Montana, Election Turnout, Indian Precincts, 1996-2008 .....................148 7.6: Roosevelt County, Montana, Election Turnout, Non-Indian Precinct, 1996-2008 ..............149 7.7: Roosevelt, Montana, Election Turnout, Reservation Precincts, 1996-2008 .........................151 7.8: Roosevelt County, Montana, Election Turnout, Off-Reservation Precincts, 1996-2008 ...................................................................................................................152 7.9: Population in Census Tract Areas for Roosevelt County, MT by Race ..............................153 7.10: Roosevelt County, Montana, Election Turnout 1996-2008, Precincts with a High Population of Indians .......................................................................................154 7.11: Roosevelt County, Montana, Election Turnout 1996-2008, Precincts with a Moderate Population of Indians ................................................................................155 7.12: Roosevelt County, Montana, Election Turnout 1996-2008, Precincts with a Low Population of Indians ........................................................................................156 LIST OF FIGURES Figure Page 5.1: San Juan County, Utah, Election Turnout, 1978 to 2008 .......................................................90 5.2: San Juan County, Utah, Turnout by Commission District, 1978 to 2008 ..............................91 5.3: San Juan County, Utah: Turnout in Indian Precincts..............................................................94 5.4: San Juan County, Utah: Turnout in Non-Indian Precincts .....................................................96 5.5: San Juan County, Utah: Turnout in Reservation Precincts .....................................................99 5.6: San Juan County, Utah: Turnout in Off-Reservation Precincts ............................................100 6.1: Big Horn County, Montana County Turnout 1978 to 2008 ..................................................122 6.2: Big Horn County, Montana, Turnout by Commission District, 1978 to 2008 .....................123 6.3: Big Horn County, Montana: Turnout in Indian Precincts ....................................................126 6.4: Big Horn County, Montana: Turnout in Non-Indian Precincts ............................................126 6.5: Big Horn County, Montana: Turnout in Reservation Precincts............................................130 6.6: Big Horn County, Montana: Turnout in Off-Reservation Precincts .....................................130 7.1: Roosevelt County, Montana Turnout 1996 to 2008 .............................................................146 7.2: Roosevelt County Montana: Turnout in Indian Precincts ....................................................148 7.3: Roosevelt County Montana: Turnout in Non-Indian Precincts ............................................149 7.4: Roosevelt County Montana: Turnout in Reservation Precincts............................................151 7.5: Roosevelt County Montana: Turnout in Off-Reservation Precincts .....................................152 7.6: Roosevelt County Montana: Turnout in Precincts with High Populations of Indians ........................................................................................................................154 xi 7.7: Roosevelt County Montana: Turnout in Precincts with Moderate Populations of Indians ...................................................................................................................155 7.8: Roosevelt County Montana: Turnout in Precincts with Low Populations of Indians ........................................................................................................................156 D.1: Voting Precinct Map, San Juan County, Utah, 1986-2008 ..................................................187 E.1: Percentage Native American Population and Voting Precincts, San Juan County, Utah, 2000 ....................................................................................................189 F.1: Voting Precinct Map, Big Horn County, Montana, 2008 .....................................................191 G.1: Percentage Native American Population and Voting Precincts, Big Horn County, Montana, 2000..............................................................................................193 H.1: Voting Precinct Map, Roosevelt County, Montana, 2008 ...................................................195 I.1: Roosevelt County, Montana, District and Precinct Lines Map .............................................197 J.1: Percentage Native American Population and Voting Precincts, Roosevelt County, Montana, 2008 ..........................................................................................................199 CHAPTER 1 INTRODUCTION Facilitated by the creation of majority-minority voting districts under the 1965 Voting Rights Act (hereafter referred to as Act or Voting Rights Act), American Indians (hereafter referred to as Indians or American Indians) have made significant inroads to public office in recent years. Previous research on Indian voting rights found that they now hold public office in more than a dozen jurisdictions that switched from at-large to single-member districts as a result of voting rights litigation (McCool, Olson, and Robinson 2007). While this may seem to be a small number, the gains are substantial. In fifteen jurisdictions examined in previous research, only one American Indian had ever been elected under an at-large voting system. When those fifteen jurisdictions switched from at-large electoral systems to single-member systems, Indians were elected in thirteen of the fifteen jurisdictions. The actual number of elected Indian officials in these jurisdictions shows the impressive nature of voting rights litigation and single-member district systems. In the fifteen jurisdictions, seventy-five positions are now elected through single-member districts; American Indians hold twenty-one of these seventy-five positions. Voting rights advocates and political scientists have long expected minority office holding to "usher a small-scale revolution in electoral politics" (Gay 2001, 589). Studies have also indicated such a revolution has occurred for African Americans and Latinos 2 (see Bobo and Gilliam 1990; Gay 2001; Gilliam and Kaufmann 1998). To elaborate, as minorities make gains in public office, a positive effect is seen on participation for the minority group. This effect occurs indirectly by increasing political trust, efficacy, and knowledge among the minority group (Kaufmann 2003).1 The research in this area has developed into what is termed empowerment theory. Empowerment theory is a social-psychological theory of group behavior, it requires group cohesiveness, and it argues that group members are likely to experience a psychological response to their in-group empowerment (Kaufmann 2003). In general, empowerment theory argues that as a group achieves significant representation and influence in political decision making, group members will experience increased levels of political trust, efficacy, and knowledge that in turn positively affect participation rates. Empowerment theory has yet to be applied to American Indians, but it holds much promise in explaining participation rates among this minority group because of the theory's emphasis on contextual and individual level factors. The combination of these factors is a needed theoretical development in explaining the complexity of political behavior as earlier studies have failed to account for the low rates of participation among Indians. Previous studies of American Indian political participation have found that participation rates among this group are lower than for all other racial groups, even when 1Political empowerment, also referred to as political incorporation by Browning, Marshall, and Tabb (1984), is defined in this study as the "extent to which a group has achieved significant representation and influence in political decision making" (Bobo and Gilliam 1990, 378). In the case of American Indians, so few American Indians have been elected to public office that the election of a single Indian in a community may meet the standard of "significant." Efficacy is defined by Campbell, Gurin, and Miller (1954) as "the feeling that individual political action does have, or can have, an impact on the political process, i.e., that it is worthwhile to perform one's civic duties" (187). Political trust is an evaluative or an affective judgment of government; a lack of trust is political cynicism (Miller 1974). 3 controlling for socioeconomic status (Peterson 1997). The finding is significant, as socioeconomic status is the best predictor of participation rates in general, and yet, socioeconomic status fails to account for the low rates of participation among American Indians (Peterson 1997; Rosenstone and Hansen 2002; Verba and Nie 1972; Wolfinger and Rosenstone 1980). The findings of this study indicate the significant and positive role of empowerment on American Indian participation in elections both immediately after empowerment as well as over time. Findings indicate that the positive effect of empowerment on political behavior is both immediate and long lasting. All three counties in this study underwent significant changes in their electoral structure following voting rights litigation; the litigation resulted in a change from at-large elections to single-member elections for county commission seats. Indian candidates were successfully elected from the majority Indian districts in each of the three counties once the single-member electoral system was instituted. These electoral victories are significant events for both American Indians and Whites living in these communities in large part because no Indian had ever held any county elected office prior to these structural changes. As predicted by the empowerment theory, American Indian participation in elections increased significantly after the election of an Indian (i.e., after empowerment). The comparison of turnout prior to empowerment with turnout after empowerment shows the large increase in voter turnout among American Indians in these three counties. During the same period, turnout among Whites remains steady or declines immediately after empowerment. The data also show the long-lasting effect of empowerment on American Indian turnout. For example, in San Juan County, located in the southeastern 4 corner of Utah, turnout on the reservation over the thirty-year period from 1978 to 2008 increased 301%. Similar positive results occurred in Big Horn County, Montana, and to a lesser extent in Roosevelt County, Montana. The positive effect of empowerment on attitudes among American Indians is credited with this marked increase in turnout. American Indians living in the three counties began to feel that their vote mattered and that they could have an impact on the results of the election. It is also indicated that American Indian voters were able to identify with the American Indian commissioner in their community. Further, Indians living in these counties began to perceive county government differently. The full impact of the Voting Rights Act is becoming increasingly apparent. Earlier works indicate the positive results reached through litigation to ensure the rights of American Indians to vote and to have a fair opportunity to elect candidates of their choice. The successful election of Indian candidates has also brought about positive shifts to laws, policies, and services provided by counties to their Indian residents. The reach of the Act goes even further. The changes that have been implemented through the Voting Rights Act, especially adjustments to electoral structures, have resulted in the successful election of Indian candidates. Adjustments to electoral structures have also had a fundamental impact on the perceptions and the willingness of Indians to participate in the democratic process. CHAPTER 2 THE RIGHT TO VOTE FOR AMERICAN INDIANS The history of voting rights for American Indians is complex, primarily due to the unique legal status of this minority group that dates back to the founding of the nation.1 The U.S. Constitution references American Indians in two articles, but these sections provide little clarification as to their relationship with the new U.S. government. In Article 1, Section 2, "Indians not taxed" are excluded for purposes of apportionment for congressional districts.2 Article 1, Section 8, assigns Congress the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."3 Framers of the new U.S. government struggled with the exact legal status of American Indians, a struggle that continues well into the twenty-first century.4 1Lawrence Baca (2010), an expert on Indian law and policy recently wrote: "Modern Indian policy is captive to its history. Its present cannot escape its past. The underpinnings of the contemporary dynamic between the States, the Tribes and the Federal Government are rooted in the founding of a national government." 2U.S. Constitution, art. 1, sec. 2, Paragraph 3. 3U.S. Constitution, art. 1, sec. 8, clause 3. The Commerce Clause delineates three sovereigns, states, foreign nations, and Indian Tribes. The Supreme Court's interpretation of the Commerce Clause framed the modern Tribal-State-Federal sovereignty dynamic according to Lawrence Baca (forthcoming). 4For example, Lawrence Baca (2010) wrote the following: "From negotiation by the sword and cannon to treaties of peace and land session in the earliest days, through isolation on reservations in the 1800s, followed by the assimilationist and termination policies of the 1950s, there has been inconsistency in federal Indian policy. . . . The beginning of modern Indian policy is tied to the repudiation of the termination period and the development of the 6 History of Voting Rights for American Indians The earliest period of U.S. history in relation to American Indian tribes was well described by Canby (2009) as consolidation by the federal government of control over Indian affairs. Congress established the foundation for consolidated control over Indian affairs through a series of acts, known as Trade and Intercourse Acts, passed between 1790 and 1834. "The central policy embodied in the Acts was one of separating Indian and non-Indians and subjecting nearly all interaction between the two groups to federal control" rather than to state control (Canby 2009, 14). Congressional action was only one factor in establishing federal control over Indian affairs, as the Supreme Court (hereafter referred to as Supreme Court or Court) soon weighed in on the topic, solidifying federal power over Indian affairs. The Marshall Trilogy The Supreme Court first engaged in defining the relationship between American Indians and the United States during the 1800s. A set of three cases, known as the "Marshall Trilogy," illustrates the difficulty in establishing the legal status of American Indians.5 The first of the Marshall cases was Johnson v. M'Intosh (1823).6 The central issue in M'Intosh is the Doctrine of Discovery, the agreement among European nations concept of tribal self determination. Every administration since 1960 has supported the concept of a government-to-government relationship between the Tribes and the Federal Government and the principle of self-governance for Tribes and the modern statutes reflect this shift." 5The Marshall Trilogy is a set of three cases that defined tribal sovereignty. These cases are Johnson v. M'Intosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). 621 U.S. 543. 7 that once a European power claimed "discovery" of a particular tract of land, the rights of the Indians to transfer their land were limited to a transfer to the "discovering Nation."7 On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. (Johnson v. M'Intosh 1823, 572-73) The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. (Johnson v. M'Intosh 1823, 587) The agreement served a dual purpose. It prevented the potentates of Europe from warring with each other over the right to possess the lands of the various Indian tribes. The agreement also functioned as a restriction on the rights of the Indians themselves to sell to the individual of their choosing. The issue before the Court then was whether land transfers from a tribe to a non-Indian were superior to land transfers made by a foreign 7Vine Deloria, Jr. (1984) wrote the following: "Every legal doctrine that today separates and distinguishes American Indians from other Americans traces its conceptual roots back to the Doctrine of Discovery and the subsequent moral and legal rights and responsibilities of the United States with respect to Indians" (2). 8 power laying claim to the same property under the Doctrine of Discovery. The Supreme Court determined that Indians retain the right of occupancy that was extinguishable only by discovering European sovereigns. When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power. But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the Whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the White population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies. That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the 9 community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. (Johnson v. M'Intosh 1823, 589-92) The second of the cases, Cherokee Nation v. Georgia (1831), involved two important components. The primary question before the Court was whether the Cherokee Nation was, constitutionally speaking, a foreign nation that could file suit under the Supreme Court's original jurisdiction. The second issue of the case revolves around the sovereignty of Indian nations and the role of state governments in relation to tribes. Georgia had divided up the Cherokee territory, invalidated all Cherokee laws, and made criminal any attempts of the Cherokee to act as a government (Canby 2009). The Cherokee nation sought an injunction to prevent Georgia from enforcing state laws on the Cherokee tribal territory. At the time of the case, the Supreme Court had original jurisdiction over cases filed against the State of the Union by a foreign nation (Article III, Section 2);8 thus, in Cherokee Nation v. Georgia, the Court initially had to determine whether the Cherokee nation was a foreign state in the sense of the U.S. Constitution. 8U.S. Constitution, art. 3, sec. 2: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction,-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under the Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." 10 Before we can look into the merits of the case, a preliminary inquiry presents itself. Has this court jurisdiction of the cause? The third article of the constitution describes the extent of the judicial power. The second section closes an enumeration of the cases to which it is extended, with "controversies between a state or the citizens thereof, and foreign states, citizens, or subjects." A subsequent clause of the same section gives the supreme court original jurisdiction in all cases in which a state shall be a party. The party defendant may then unquestionably be sued in this Court. May the plaintiff sue in it? Is the Cherokee nation a foreign state in the sense in which that term is used in the constitution? The counsel have shown conclusively that they are not a state of the union, and have insisted that, individually, they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state. Each individual being foreign, the whole must be foreign. (Cherokee Nation v. Georgia 1831, 15-16) In finding that Indian tribes are not foreign nations, the Court describes them as domestic dependent nations and wards of the government: Though the Indians are acknowledged to have an unquestionable, and, heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. (Cherokee Nation v. Georgia 1831, 17) In ruling that it lacks jurisdiction, the Court never reaches the question of its own power over the state of Georgia: The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States. A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighbouring people, asserting their independence; their right to which the state denies. On several of the 11 matters alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self government in their own country by the Cherokee nation, this court cannot interpose; at least in the form in which those matters are presented. That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might perhaps be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties makes it unnecessary to decide this question. If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted. If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. (Cherokee Nation v. Georgia 1831, 20) The following term, the Court again addressed the issue of state jurisdiction over a tribe in Worcester v. Georgia (1832). Samuel Worcester, along with others, all of whom were residents of the state of Vermont, had been arrested for preaching among the Cherokee without a state license and in violation of Georgia state law. Georgia law required non-Indians residing on Indian territory to obtain a license from the state government. The Court ruled that it did have jurisdiction in the case. Further, the Marshall Court established the limitation of the power of states to interfere with the activities of a tribe within the tribes' own lands. The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation is, by our constitution and laws, vested in the government of the United States. 12 The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Can this court revise, and reverse it? If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right, would give this court no power over the subject. But it goes much further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union. They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself. They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties. (Worcester v. Georgia 1832, 561-62) The Marshall Trilogy established tribes as distinct, independent communities and is "the foundation of jurisdictional law excluding the states from power over Indian affairs" (Canby 2009, 18). The trilogy also solidified congressional power over Indian tribes exclusive of the States. Citizenship for American Indians In 1866, Congress was intent on establishing civil rights for freed slaves but, at the same time, was struggling with how to define the status of American Indians. The following two pieces of legislation are important to note: the Civil Rights Act of 1866 and the Fourteenth Amendment. In April 1866, Congress passed the Civil Rights Act.9 9The Civil Rights Act was passed by Congress in March 1866; however, it was vetoed by President Johnson. Congress passed the Civil Rights Act over his veto in April 1866. 13 The Civil Rights Act states the following: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. While the Civil Rights Act of 1866 provided citizenship to all persons born in the United States and afforded them all the benefits and rights of citizenship, it excluded American Indians "not taxed" from these benefits. "In large part the Amendment was designed to ensure the constitutionality of the [Civil Rights] Act" (Cohen and Varat 1997, 22). The Fourteenth Amendment used similar language to further guarantee and protect the rights of freed slaves as citizens of the United States.10 It reads as follows: Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 10The Fourteenth Amendment passed on June 13, 1866. By March 1877, it was ratified by twenty states, rejected by eleven. "Also in March Congress passed over the President's veto a bill setting the conditions under which the Rebel States would be entitled to representation in Congress. One of those conditions for readmission was that the state should have ratified the Fourteenth Amendment and that the Amendment should have become part of the Constitution. By July 1868, nine more states had ratified, including seven of the southern states seeking readmission pursuant to the 1867 statute, and the Amendment was declared adopted on July 28" (Cohen and Varat 1997, 24). 14 Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. The debate within Congress with regard to whether to include "Indians not taxed" was part of a larger argument over the nation's Indian policy. Senator Doolittle argued for the inclusion of the phrase "Indians not taxed" in the Fourteenth Amendment on two grounds. First, Indians were an inferior race; and second, if Indians gained the right to vote, they would be the political majority in many areas of the county (see McCool, Olson, and Robinson 2007). The Doolittle argument persevered, and the phrase "Indians not taxed" was included in the Fourteenth Amendment, deliberately denying citizenship and the rights and privileges it affords to American Indians. In the late nineteenth century, a voting rights case came before the Supreme Court, which addressed the citizenship issue for Indians. Elk v. Wilkins (1894) was not only a test of citizenship but it was also a test of the application of the Fourteenth Amendment to American Indians. John Elk, an Indian, was living in Omaha, Nebraska, and was subject to state and federal taxation. He attempted to vote in Nebraska but was denied the right. The Supreme Court found that he did not have the right to vote because he was not a citizen. The Court disregarded the fact that he had severed tribal ties, focusing on the two means towards citizenship: (a) birth and (b) naturalization. In its decision, the Court found that simply being born within the boundaries of the United States did not automatically grant citizenship to Indians: Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes 15 (an alien, though dependent, power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations. This view is confirmed by the second section of the Fourteenth Amendment, which provides that "representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed." Slavery having been abolished, and the persons formerly held as slaves made citizens, this clause fixing the apportionment of representatives has abrogated so much of the corresponding clause of the original Constitution as counted only three-fifths of such persons. But Indians not taxed are still excluded from the count, for the reason that they are not citizens. Their absolute exclusion from the basis of representation, in which all other persons are now included, is wholly inconsistent with their being considered citizens. So the further provision of the second section for a proportionate reduction of the basis of the representation of any State in which the right to vote for presidential electors, representatives in Congress, or executive or judicial officers or members of the legislature of a State, is denied, except for participation in rebellion or other crime, to "any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States," cannot apply to a denial of the elective franchise to Indians not taxed, who form no part of the people entitled to representation. It is also worthy of remark, that the language used, about the same time, by the very Congress which framed the Fourteenth Amendment, in the first section of the Civil Rights Act of April 9, 1866, declaring who shall be citizens of the United States, is "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed." 14 Stat. 27; Rev. Stat. § 1992. Such Indians, then, not being citizens by birth, can only become citizens in the second way mentioned in the Fourteenth Amendment, by being "naturalized in the United States," by or under some treaty or statute. (Elk v. Wilkins 1894, 102-03) The Court also ruled that abandoning one's tribal ties does not automatically confer citizenship to Indians. Rather, citizenship, if not granted by birth, must be granted by the nation through a naturalization process: The national legislation has tended more and more towards the education and civilization of the Indians, and fitting them to be citizens. 16 But the question whether any Indian tribes, or any members thereof, have become so far advanced in civilization, that they should be let out of the state of pupilage, and admitted to the privileges and responsibilities of citizenship, is a question to be decided by the nation whose wards they are and whose citizens they seek to become, and not by each Indian for himself. (Elk v. Wilkins 1894, 106-07) The Court's determination that Elk was not a citizen of the United States under the Fourteenth Amendment led to the conclusion that the Fifteenth Amendment did not apply to Elk: "The plaintiff, not being a citizen of the United States under the Fourteenth Amendment of the U.S. Constitution, has been deprived of no right secured by the Fifteenth Amendment, and cannot maintain this action" (Elk v. Wilkins 1894, 109). The reasoning behind the Court's decision was used far into the next century as a means to prevent other Indians from voting. Beginning in the mid-1800s, the federal government began using naturalization and citizenship as mechanisms to assimilate Indians into White culture, gain Indian lands, and terminate tribal governments. This was one approach to Indian policy; the other approach "was basically genocide, replete with statements that all Indians should be exterminated forthwith" (McCool, Olson, and Robinson 2007, 5). As part of the process to assimilate Indians, the U.S. government began granting citizenship through a variety of means, including through treaties, allotments, military service, and special acts of Congress. For example, the Oklahoma Enabling Act, creating the state of Oklahoma, granted citizenship to Indians living in the territory; in 1919, following World War I, Indians who had served in the military and who were honorably discharged could become citizens (McCool, Olson, and Robinson 2007). Between 1854 and 1924, Indians were naturalized under treaties, statutes, and the allotment system of the General Allotment Act of 1887 (Dawes Act) whereby Indians would leave the reservation and sever tribal ties.11 By 1924, prior to passage of the Indian Citizenship 11The General Allotment Act, also known as the Dawes Act, divided reservation lands into individual land holdings for tribal members. The plots were held in trust by the government for twenty-five years. The federal government sold off the remaining lands to the public. 17 Act, nearly two thirds of all Indians were citizens (Wolfley 1991, 175-76). The issue of citizenship for American Indians was resolved, in a legal sense, in 1924, with passage of the Indian Citizenship Act.12 By the act of June 2, 1924, Congress conferred citizenship upon all noncitizen Indians born within the territorial limits of the United States: Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all noncitizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. Although the Indian Citizenship Act resolved the issues of citizenship, various interpretations were made of the Indian Citizenship Act's effect on suffrage. During congressional debate, this issue was directly addressed. Congressman Garret of Tennessee asked of his colleague, Congressman Snyder, whether the Indian Citizenship Act would affect state suffrage laws, to which he was reassured that the Indian Citizenship Act was not intended to "have any effect upon the suffrage qualifications in any state." In 1928, the Department of Interior issued the following contrary opinion on voting: Two thirds of the Indians of the United States had acquired citizenship in one way or another prior to 1924. That year Congress passed a law which gave citizenship to all native-born Indians. The franchise was so newly granted that no great use was made of it in the election of 1924. The election of this year is the first general election at which American Indians will have a fair chance to exercise that franchise. However, one of the most basic rights of any citizen, the right to vote, eluded American Indians well after passage of the Indian Citizenship Act, even though it was 1243 Stat. 253, ante, 420; passed June 2, 1924. 18 guaranteed by the Fifteenth Amendment.13 The Fifteenth Amendment reads as follows: "The right of citizens of the United States to vote shall not be denied or abridged by the United States by any State on account of race, color, or previous condition of servitude." As late as 1940, nine states (i.e., Arizona, Colorado, Idaho, Maine, Mississippi, New Mexico, North Carolina, Utah, and Washington) refused to allow Indians the right to vote (Peterson 1957, 12; Council of State Governments 1940, 3).14 States and local governments relied on the following five methods to prevent Indians from going to the polls: (a) residency, (b) self-termination, (c) guardianship, (d) taxation, and (e) literacy.15 Despite passage of the Indian Citizenship Act (1924) and the guarantee of state citizenship through the Fourteenth Amendment for all citizens of the United States, some states relied on the argument that Indians, living on reservations, were not residents of their states in order to prohibit voting by Indians.16 The Utah code stated that: any person living upon any Indian or military reservation shall not be a resident of Utah, within the meaning of this chapter, unless such person had acquired a residence in some county prior to taking up his residence 13The Fifteenth Amendment was passed by Congress on February 26, 1869; it was ratified on February 2, 1870. 14In addition, there has been resistance to Indians holding elected office in the states and local jurisdictions. Much of the resistance revolves around the issue of Indians living on reservations not paying taxes or subject to laws of the community. In 1973, the Supreme Court of Arizona rejected arguments that an Indian officeholder should be disqualified because he or she was not subject to state taxes (Shirley v. Superior Court, 1973, 109 Ariz. 510). 15The following categories explain laws in only the seven states that were identified as having laws that prohibit Indians from voting in 1938. There are many examples of states that prohibited Indians from voting during earlier time periods, but they revised their laws prior to 1938. 16See, for example, Trujillo v. Garley (1948), Allen v. Merrell (1956), Montoya v. Bolack (1962), and Shirley v. Superior Court (1973). 19 upon such Indian or military reservation. (An Act Providing for Elections 1897, 172; Revised Statutes of Utah 1898, 1907, 1917, 1933) This exact language remained until the Utah Legislature amended the code in 1957, effectively excluding American Indians from the political process until that year. Utah has the unique distinction of being the last state to remove the ban.17 Self-termination, abandoning tribal ties, was another requirement used by some states to allow Indians to vote. This argument is closely linked to the residency requirement discussed above. Some states placed the requirement in their constitutions and state laws. For example, North Dakota's state constitution restricted voting to "civilized persons of Indian descent who shall have severed their tribal relations two years next preceding such election" (Article V, Section 121). The provision was not changed until 1958 when voters in the state removed the provision by a vote of 99,749 to 25,269.18 In Utah, the State Supreme Court relied upon the argument of both residency 17Other states used this justification, including New Mexico. 18Article V, Section 121 contained the following provision: "Every male person of the age of twenty-one years and upwards belonging to either of the following classes, who shall have resided in the state one year, in the county six months and in the precinct ninety days next preceding any election, shall be deemed a qualified elector at such election: First. Citizens of the United States. Second. Persons of foreign birth who shall have declared their intention to become citizens, one year and not more than six years prior to such election, conformably to the naturalization laws of the United States. Third. Civilized persons of Indian descent who shall have severed their tribal relations two years next preceding such election." In 1898, the North Dakota Constitution was renumbered, and Sections 121 to 129 of Article 5 of the original constitution became Article 2 in the revised constitution; however, the section on Indian voting rights was not changed at that time. This provision was not changed until the Primary Election held June 24, 1958, with a vote of 99,749 yes and 25,269 against. Legislation enacted in Session Laws of 1955, Chapter 402 allowed for this election. The law currently states: "Every person of the age of twenty-one or upwards who is a citizen of the United States and who shall have resided in the state one year and in the county ninety days and in the precinct thirty days next preceding an election shall be a qualified elector at such an election. Provided that where a qualified elector moves from one precinct to another within the state he shall be entitled to vote in the precinct from which he moved until he establishes residence in the precinct to which he moves." 20 and self-termination to uphold the prohibition on Indian voting (Allen v. Merrell 1956).19 Since statehood, Utah had prohibited Indians who resided on a reservation from voting (An Act Providing for Elections 1897, 172; Revised Statutes of Utah 1898, 1907, 1917, 1933). In 1940, Joseph Chez, the attorney general for Utah, issued an opinion, indicating that "the statute was no longer applicable because of the changed attitudes toward occupants of Indian lands and that therefore the voting franchise should be granted to citizens residing thereon" (Opinion of the Attorney General of Utah, October 25, 1940). Indians residing on the Uintah and Ouray Reservations in Duchesne County voted from that time until 1956 when a second, and contradictory, opinion was issued by a new attorney general, E. R. Callister. The second opinion upheld the statute prohibiting Indians living on reservations from voting: "Indians who live on the reservation are not entitled to vote in Utah. . . . Indians living off the reservation may, of course, register and vote in the voting district in which they reside, the same as any other citizen" (Opinion of the Attorney General of Utah, March 23, 1956). In 1956, Allen, an American Indian living on the Uintah Reservation, applied for an absentee ballot that was refused based upon the second attorney general's opinion (Allen 1956). Mr. Allen challenged the denial in the Utah Supreme Court; however, the court relied on three arguments in its ruling against Mr. Allen (Allen 1956; Allen v. Merrell 1956). First, reservation Indians are members of tribes "which have a considerable degree of sovereignty independent of state government." Second, the federal government remains largely responsible for the welfare and maintains a high degree of "control over" reservation Indians. Last, Indians living on 19Some earlier challenges to the self-termination argument include Opsahl v. Johnson (1917) and Swift v. Leach (1920). 21 reservations are "much less concerned with paying taxes and otherwise being involved with state government and its local units, and are much less interested in it than are citizens generally" (Allen v. Merrell 1956, 492). The case was appealed to the U.S. Supreme Court; however, the case became moot in 1957 when the Utah Legislature amended the statute by removing all language that prohibited Indians from voting (Allen v. Merrell 1957). The "notion that Indians under guardianship by virtue of the fact that Indian lands were under federal trusteeship" was another means to prohibit Indians from going to the polls (Peterson 1956, 121). Several lawsuits challenged these state laws, including Harrison v. Laveen (1948).20 As late as 1940, six states (i.e., Idaho, Maine, Mississippi, New Mexico, Rhode Island, and Washington) prohibited "Indians not taxed" from voting (Cohen 1942, 158; Council of State Governments 1940).21 The rationale for the prohibition is that one should not have "representation without taxation," a spin on the revolutionary slogan "no taxation without representation." Several lawsuits challenged these laws throughout the western states.22 Literacy tests were commonly used to prohibit minorities from voting. These tests were used throughout the United States. In the southern states, literacy tests were predominant in order to prevent Blacks from voting. Although less recognized as a tool to 20An earlier case challenging guardianship is Porter v. Hall (1928). 21According to the Council of State Governments (1940), Rhode Island law stated that "Narragansett Indians are excluded from suffrage." 22See, for example, Trujillo v. Garley (1948), Harrison v. Laveen (1948), Shirley v. Superior Court (1973), and Prince v. Board of Education (1975). 22 keep Indians from the polls, literacy tests were used in several states with large Indian populations. A 1940 report from the Council of State Governments noted that nineteen states prohibited illiterate people from voting (see Table 2.1). The impact of a literacy test was profound for Blacks in the South, but it was not limited to this region or racial group. A handful of states had large populations of American Indians. In particular, Arizona, at the time, had a large number and a large percentage (11%) of American Indians in its population. Passage of the Voting Right Act in 1965 temporarily ended the use of literacy tests. With passage of the 1970 amendment, the use of literacy tests was permanently banned nationwide. The 1975 amendment added additional protection to non-English readers and speakers, requiring language assistants for minority language voters.23 Several legal strategies were used to prohibit Indians from voting. It was not until passage of the Voting Rights Act that these legal barriers were removed. Wolfley (1991) accurately noted the following: The Indians' struggle to participate in the democratic process has a unique and complex history which mirrors their long, cyclic relationship with the federal government. Indeed, the history of Indian disenfranchisement reflects a panalopy of shifting majority attitudes, policies, and laws towards Indians. (167) Voting Rights Act of 1965 Overview of the Voting Rights Act The Voting Rights Act was signed into law August 6, 1965, after "Congress determined that existing federal anti-discrimination laws were not sufficient to overcome resistance by state officials to enforcement of the 15th Amendment" (U.S. Department of 23Voting Rights Act of 1965 and subsequent amendments in 1970 and 1975. 23 Table 2.1. States With Literacy Requirements for Voting, 1940 State Population of American Indians % of Population That Was American Indian Alabama 464 Less than 1% Arizona 55,076 11% California 18,675 Less than 1% Connecticut 201 Less than 1% Delaware 14 Less than 1% Georgia 106 Less than 1% Louisiana 1,801 Less than 1% Maine 1,251 Less than 1% Massachusetts 769 Less than 1% Mississippi 2,134 Less than 1% Nw Hampshire 50 Less than 1% New York 8,651 Less than 1% North Carolina 22,546 Less than 1% Oklahoma 63,125 3% Oregon 4,504 Less than 1% South Carolina 1,234 Less than 1% Virginia 198 Less than 1% Washington 11,394 Less than 1% Wyoming 2,340 Less than 1% Source: The Council of State Governments (1940) provided the states with literacy tests. Population data came from the U.S. Department of Commerce, U.S. Census Bureau, Sixteenth Census Reports, Population, Vol. II, 21. The U.S. Census Bureau estimated that the total population was 131,669,275. The American Indian population was estimated to be 333,969 or .3% of the U.S. population. 24 Justice 2002). The prior method of addressing voting discrimination, litigation on a case-by- case basis, was not an effective remedy for ending discrimination (Davidson 1992; McCrary 2003; McDonald 1989). "Even those judges who sought to eliminate discriminatory barriers found that every time the courts struck down one procedure, Southern local officials or state legislators devised newer, more subtle ways of minimizing Black voter registration" (McCrary 2003, 685). The congressional hearings revealed that the efforts of the U.S. Department of Justice to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process. "As soon as one discriminatory practice or procedure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew" (U.S. Department of Justice 2002). President Johnson and members of Congress intentionally designed the Voting Rights Act to increase the power of the U.S. Department of Justice and to force certain states and local jurisdictions, with a history of voting discrimination, to justify changes to voting laws, thus ending the case-by-case process. The 1965 law initially suspended literacy tests and other voter qualifying devices in certain covered jurisdictions, authorized federal supervision of voter registration and new voting laws in covered jurisdictions, and created a triggering formula to bring states and local jurisdictions under the law. The original trigger formula states that if a state or local jurisdiction has a literacy test or similar voter qualification device in effect on November 1, 1964, and if less than 50% of the voting-age residents are registered to vote on November 1, 1964, or actually voted in the 1964 presidential election, then the jurisdiction would be under federal supervision. 25 The 1965 law initially suspended literacy tests and other voter qualifying devices in certain covered jurisdictions, authorized federal supervision of voter registration and new voting laws in covered jurisdictions, and created a triggering formula to bring states and local jurisdictions under the law. The original trigger formula states that if a state or local jurisdiction has a literacy test or similar voter qualification device in effect on November 1, 1964, and if less than 50% of the voting-age residents are registered to vote on November 1, 1964, or actually voted in the 1964 presidential election, then the jurisdiction would be under federal supervision. Several components of the Voting Rights Act deserve extra attention. Section 2 is a key provision of the law that prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups protected by the Voting Rights Act.24 Section 2, unlike some provisions of the Voting Rights Act, is permanent and does not have an expiration date nor does it require renewal. Most cases arising under Section 2 involve challenges to at-large election systems. Of the seventy-four American Indian voting rights cases identified by McCool, Olson, and Robinson (2007), twenty-six of the cases are challenges to at-large election systems, more than any other type of voting rights case. Section 3 of the Voting Rights Act details remedies the courts can impose if they find a jurisdiction in violation of Section 2. 24Section 203 of the Voting Rights Act targets those language minorities who have suffered a history of exclusion from the political process (i.e., Spanish, Asian, Native American, and Alaskan Native). The Census Bureau identifies specific language groups for specific jurisdictions. In some jurisdictions, two or more language minority groups are present in numbers sufficient to trigger the Section 203 requirements (http://www.usdoj.gov/crt/voting/sec_203/203_brochure.php). 26 Sections 4, 5, 6, 7, 8, and 9 were initially temporary provisions and not applicable nationwide. Section 4 establishes the formula for coverage of a jurisdiction. Section 4 also provides the mechanism for removing a jurisdiction from coverage under these temporary provisions. Of particular importance to Indian voting rights is Section 5. Under Section 5, any change with respect to voting in certain states and subdivisions of states must receive approval either from the U.S. District Court for the District of Columbia or from the attorney general.25 This requirement was enacted with the original legislation in 1965. The covered jurisdictions were identified by a formula in Section 4 of the Voting Rights Act. The jurisdictions originally covered by Section 5 were the following: Alabama, Alaska, Georgia, Louisiana, Mississippi, South Carolina, Virginia, and political subdivisions (mostly counties) in Arizona, Hawaii, Idaho, and North Carolina (Davidson 1992, 118; U.S. Department of Justice 2008). Section 5 has been renewed several times (i.e., 1970, 1975, 1982, and 2006). In 1975, Congress, in addition to renewing Section 5, changed the coverage formula in Section 4 to include language minority groups. In 2006, Congress extended Section 5 for an additional twenty-five years.26 Currently, the following nine states are covered in their entirety under Section 5: Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, 25Section 5 is a temporary provision of the Voting Rights Act, and it was included in the original legislation passed in 1965. It was renewed several times. In 1970, it was renewed for five more years, with a new coverage formula; in 1975, it was renewed for seven more years, with an additional formula to protect language minorities; in 1982, it was renewed for twenty-five years, and it did not include a new formula; and in 2006, it was renewed again for an additional twenty-five years. 26The title of the 2006 voting rights bill is the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act. 27 South Carolina, Texas, and Virginia. The following seven additional states have counties or cities/towns that are covered by the law: California, Florida, New York, North Carolina, South Dakota, Michigan, and New Hampshire (see Appendix B). Jurisdictions covered under Section 5 must preclear any change in voting practice or procedure and prove that the change does not have a discriminatory purpose or effect. Sections 6, 7, and 8 authorize the U.S. attorney general to appoint federal examiners and observers in covered jurisdictions. Section 10 authorizes the U.S. attorney general to bring litigation challenging a voting practice or procedure that violates the Voting Rights Act. Section 11 provides criminal penalties for those who intimidate voters or impede the vote counting in federal elections. Section 12 authorizes the U.S. attorney general to bring civil actions; it also provides penalties to protect ballots and voting records for one year after an election. Section 13 provides the conditions for terminating federal oversight. Section 14 establishes a broad definition of vote and voting. The Voting Rights Act has been amended several times since initial passage: first in 1970; then in 1975, 1982, and 1992; and most recently in 2006. The following section provides a chronological review of the major Supreme Court rulings and the congressional action to amend the Voting Rights Act, sometimes in direct response to Court decisions. The Voting Rights Act and Supreme Court Rulings The constitutionality of the Voting Rights Act was challenged shortly after its passage. In South Carolina v. Katzenbach (383 U.S. 301, 1966) the Supreme Court upheld the Voting Rights Act, ruling that "Congress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting 28 because of the inordinate amount of time and energy required to overcome the obstructionist tactics invariably encountered in these lawsuits." Although the constitutionality of its basic provisions were upheld in South Carolina v. Katzenbach, specific issues with the Voting Rights Act came up in the legal system, one of the primary ones being Section 2 as it relates to minority vote dilution. One of the first Supreme Court cases addressing minority vote dilution was White v. Regester in 1973 (412 U.S. 755). In White, "The Court revisited the issue of vote dilution and, for the first time, invalidated a multimember legislative redistricting plan on the grounds that it discriminated against minorities in violation of the Fourteenth Amendment" (McDonald 1995, 276).27 At issue in the case was a multimember district in Texas. Plaintiffs claimed that the system resulted in the defeat of minority candidates. The plaintiffs provided evidence of the history of discrimination, cultural and language barriers, depressed voter registration, racial- slating process, and racial-campaign tactics. The Court focused not on the motivation behind the law but on its consequences, depriving minorities of equal access to the election process and the totality of circumstances (Parker 1983). In Zimmer v. McKeithen (485 F.2d 1297, 1973) the Fifth Court of Appeals (comprising at that time the states of Alabama, Florida, Georgia, Louisiana, Mississippi, and Texas) formalized the totality of circumstances approach (McDonald 1995, 277). At 27The Court had previously ruled on vote dilution in Reynolds v. Sims (1964), Fortson v. Dorsey (1965), and Whitcomb v. Chavis (1971). In Reynolds, the Court ruled that the right to vote can be abridged unconstitutionally by a dilution of one's voting strength as well as by outright denial of the ballot. In Fortson, the Court recognized that particular apportionment schemes may undervalue the votes of disfavored groups but declined to hold multimember districts as unconstitutional. In Whitcomb, the Court held that the fact the minorities were disproportionately underrepresented did not prove a constitutional violation unless they had been denied equal access to the political process by the electoral system (Parker 1983). 29 issue was an at-large voting system in Louisiana. The Court found that a constitutional violation could be shown either by a racially motivated gerrymander or by a plan that "designedly or otherwise . . . would operate to minimize or cancel out" minority voting strength (Zimmer v. McKeithen 1973). The court of appeals identified four primary factors probative of vote dilution: 1) lack of access to candidate slating; 2) unresponsiveness; 3) a tenuous state policy underlying the challenged practice; and 4) the existence of past discrimination that precluded effective minority political participation. Vote dilution could be shown by proof of an aggregate of Zimmer factors, but no particular factor or number of factors had to be proven. (McDonald 1995, 277) In both White and Zimmer, the Court found that at-large systems were not per se unconstitutional, but at-large systems were struck down when based on the totality of the circumstances. It could be proven that minority voters were denied an equal opportunity to participate in the electoral process (Parker 1983). The effects standard established in White and Zimmer became the applicable standard in vote dilution cases. However, the Court abruptly shifted position in 1980 in Mobile v. Bolden, which will be addressed later. In 1975, Congress extended for an additional seven years the temporary provisions of the Act. In addition to the seven-year extension, two critical elements were added. The law made the temporary ban on literacy tests permanent and the law was expanded to provide new coverage for language minority voters. Language minorities are defined as persons of Spanish heritage, American Indians, Asian Americans, and Alaskan Natives who live in jurisdictions where (a) the U.S. Census Bureau determined that more than 5% of voting-age citizens were of a single language minority, (b) election materials 30 had been printed only in English for the 1972 presidential election, and (c) less than 50% of voting-age citizens had registered or voted in the 1972 presidential election. The 1975 amendment also included the addition of Section 203, which was designed to increase election turnout among language minorities by requiring certain jurisdictions to provide voting materials and oral assistance to language minority voters. Covered language minorities were limited to American Indians, Asian Americans, Alaskan Natives, and Spanish-heritage citizens-the minority groups Congress found to have faced barriers in the political process. A jurisdiction is covered under Section 203 in which the number of U.S. citizens of voting age is a single-language group within the jurisdiction. The number of U.S. citizens of voting age (a) is more than 10,000; or (b) is more than 5% of all voting-age citizens; or (c) is on an Indian reservation and exceeds 5% of all reservation residents; or (d) has a illiteracy rate as a group higher than the national illiteracy rate. If a jurisdiction is subject to Section 203, it must provide "any registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, [and] it shall provide them in the language of the applicable language minority group as well as in English," or if the language is unwritten, as for some American Indians and Alaskan natives, oral assistance and publicity are required (Voting Rights Act). Currently, eighty local jurisdictions, in seventeen states, are required to provide minority language assistance to American Indian voters under Section 203 (see Appendix C). Additional jurisdictions are covered under the law for minority language voters other than American Indians. 31 In 1980, the Supreme Court "dramatically altered the legal standard for proving unlawful dilution of minority voting strength" in Mobile v. Bolden (Parker 1983, 729). In Mobile, the Court required that plaintiffs must show that the voting system or procedure was established or was being maintained with a racially discriminatory purpose (McDonald 1995, 278-79). The Zimmer factors, as earlier established by the Court as a standard for examining vote discrimination claims, were deemed insufficient by the Court in its ruling. The earlier standard established in White v. Regester (412 U.S. 755, 1973), that vote dilution was to be judged on an effects standard (i.e., the system or procedure has the effect of discrimination), was superseded by the Mobile decision. The new standard, established by the Mobile ruling, required that any claim of vote dilution was to include proof of racially discriminatory purpose or intent. In response to the Supreme Court's decision in Mobile v. Bolden (446 U.S. 55, 1980), Congress amended Section 2 in 1982 to prohibit vote dilution without requiring proof of discriminatory purpose. In the view of many observers, the Mobile decision was inconsistent with the intent of Congress when it adopted and expanded the Voting Rights Act in 1965, 1970, and 1975. A substantial majority in both houses revised Section 2 of the Voting Rights Act in 1982 to outlaw election methods that result in diluting minority voting strength, without requiring proof of discriminatory intent. In creating a new statutory means of attacking minority vote dilution, Congress cited the "totality of circumstances" test of White and Zimmer as the evidentiary standard to be used in applying the Section 2 results test. (McCrary 2003, 698) Both the House and Senate reports indicate that a purpose of the Section 2 amendment incorporating the "results" test was to restate the original legislative intent of Congress that a Section 2 violation could be made out by showing a discriminatory effect or result. An important piece of evidence for the 1965 congressional deliberations was the response of Attorney General Nicholas Katzenbach to a question from Senator Hiram Fong during the Senate committee hearings. Asked about the scope of the section, Katzenbach responded that Section 2's prohibitions included "any 32 kind of practice . . . if its purpose or effect was to deny or abridge the right to vote on account of race or color." (Parker 1983, 726) The amendment passed by "huge veto-proof majorities in both houses of Congress" (Davidson 1992, 40). The first review of the amended Voting Rights Act by the Supreme Court was Thornburg v. Gingles (478 U.S. 30). The Supreme Court's ruling brought "both simplicity and predictability to vote dilution challenges" (McDonald 1995, 282). The majority of the Court held that in order for a Section 2 violation to be established in a challenge to multimember districts, the following three components must be met: (a) The minority population must be "sufficiently large and geographically compact" to constitute a majority in one or more districts; (b) the minority population must be "politically cohesive"; and (c) the majority population must vote as a bloc usually to defeat the minority's preferred candidate. If the minority population is not large enough and compact, they are unable to claim that at-large electoral structures or practices dilute their ability to elect a candidate of their choice. "Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by the structure or practice" (Thornburg v. Gingles 1986, 50). If the minority group is not politically cohesive, it "cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interest" (Thornburg v. Gingles 1986 in 13 ILR 2211). Once these three preconditions are met, the Court then determines on the "totality of circumstances" whether the minority population has been denied an equal opportunity to elect representatives of their choice. The courts have relied upon the legislative history of the 1982 Amendment to assist in this determination (Buckanaga v. 33 Sisseton School District, 1986; Windy Boy v. Big Horn County, MT, 1986; Cuthair v. Montezuma-Cortez, Colorado School District, 1998). As stated in the Senate Judiciary Committee majority report (1982 U.S. Code Cong. & Ad. News 177), the factors are as follows: 1. The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process. 2. The extent to which voting in the elections of the state or political subdivision is racially polarized. 3. The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, antisingle shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group. 4. If there is a candidate's slating process, whether the members of the minority group have been denied access to that process. 5. The extent to which the members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment, and health, which hinders their ability to participate effectively in the political process. 6. Whether the political campaigns have been characterized by overt or subtle racial appeals. 7. The extent to which members of a minority group have been elected to public office in the jurisdiction. 8. Whether there is a significant lack of responsiveness on the part of election officials to the particularized needs of the member of the minority group. 9. Whether the policy underlying the state or political subdivisions' use of such voting qualifications, prerequisites to voting, standards, practice or procedure is tenuous. (206-07) These factors are a clear standard for states and local jurisdictions to follow in redistricting processes and to act as a simplified standard for the courts in determining vote dilution. In 1992, Congress passed the Voting Rights Language Assistance Act, an amendment to the Voting Rights Act, which requires election information in the language of any language minority group in a county if 10,000 or more such speakers are also of 34 limited English proficiency, which is defined as those who do not speak or understand English adequately enough to participate in the electoral process. In addition, the Act was amended in 1992 to require counties to provide minority language assistance if 5% of a reservation's population is eligible for assistance regardless of its proportion of the county population. More recently, in 2006, Congress amended the Act in response to its findings that although much progress had been made to ensure the voting rights of a minority, "Vestiges of discrimination in voting continue to exist" (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights and Reauthorization and Amendments Act of 2006). The record compiled by Congress demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years. (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights and Reauthorization and Amendments Act of 2006) The Act extended the temporary provisions for an additional twenty-five years. In addition to the extension, Congress restored the broader definition of purposeful discrimination and the emphasis on a minority community's ability to elect candidates of their choice, rejecting the Supreme Court's holdings in Reno v. Bossier Parish (2000) and Georgia v. Ashcroft (2003). The effectiveness of the Voting Rights Act of 1965 has been significantly weakened by the United States Supreme Court decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft, which have misconstrued Congress' original intent in enacting the Voting Rights Act of 1965 and narrowed the protections afforded by Section 5 of such Act. (Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights and Reauthorization and Amendments Act of 2006) 35 The Act also allows the prevailing party in a voting rights lawsuit to recover expert witness fees and attorney fees. Today, the Act is a complex law with both permanent provisions that apply nationwide and special provisions, most of which are temporary, that apply only in "jurisdictions with aggravated histories of discrimination" (American Civil Liberties Union 2009, 11). The permanent provisions include the following: (a) a nationwide ban on the use of any test or device for voting, (b) a nationwide ban on any voting practice or procedure that results in a denial or abridgement of the right to vote on account of race, (c) a nationwide guarantee of the right of a voter to receive assistance in voting, and (d) a nationwide civil and criminal penalty for those who interfere with the right to vote or commit voter fraud. The temporary provisions, including Section 5 and Section 203, were renewed in 2006. These provisions will expire in 2031 unless Congress extends these temporary sections. Voting Rights Cases in Indian Country Seventy-six voting rights cases were brought by or on behalf of American Indians between 1965 and 2010.28 The cases fall into six major categories, ranging from Section 203 enforcement to challenges to redistricting (see Table 2.2). The most prevalent of all the cases, relying upon Section 2 of the Voting Rights Act, are those challenging at-large systems. Twenty-six of the cases are challenges to at-large election systems. The seventy-six identified cases have occurred in just fifteen states, most of which are in the western part of the United States (see Table 2.3). New Mexico and South 28These cases were filed under the Voting Rights Act, the Fourteenth Amendment, the Fifteenth Amendment, or all three. A complete list of cases is in Appendix A. 36 Table 2.2. American Indian Voting Rights Cases by Type, 1965 to 2010 Type of Case Number of Cases Denial of access to ballot 7 Discriminatory administration of election procedures 14 Enforcement of Section 203 8 Challenges to at-large elections 26 Disputes over redistricting 16 Disputes over Section 5 preclearance 10 Bailout actions 5 Other (Section 203 interpretation) 1 Total 76 Dakota hold the distinction of having the most American Indian Voting Rights Act cases in their respective states: nineteen each. Several states have had just a single Indian Voting Rights Act lawsuit within their boundaries. These states include Colorado, Maine, Nevada, North Carolina, and Wyoming. Indian parties have been highly successful in voting rights litigation. In only five cases have the claims of Indians been rejected. Those cases are Apache County v. U.S. (1966), Grinnell v. Sinner (1992), Old Person v. Brown (2002), Frank v. Forest County (2003), and Cottier v. City of Martin (2010). In Apache County, the U.S. District Court of the District of Columbia denied intervention by Navajos and permitted Arizona and three counties to bail out of coverage. The other three cases addressed Section 2 of the Voting Rights Act. The Grinnell case was a challenge to at-large elections for state legislatures in North Dakota. The U.S. District Court of North Dakota dismissed the case for failure to meet the first Gingles test: The minority population must be "sufficiently large and geographically compact" to constitute a majority in one or more districts. The plaintiffs in 37 Table 2.3. American Indian Voting Rights Cases by State, 1965 to 2010 State Number of cases Arizona 11 Colorado 1 Maine 1 Minnesota 2 Montana 9 Nebraska 2 Nevada 1 New Mexico 19 North Carolina 1 North Dakota 3 Oklahoma 2 South Dakota 19 Utah 2 Wisconsin 2 Wyoming 1 Total 76 the Old Person case challenged the redistricting plans for Montana's state house and senate on the grounds that the plan diluted Indian voting strength in violation of Section 2. The Ninth Circuit Court vacated the finding of no dilution; however, on remand, the District Court of Montana again found no vote dilution. In Frank v. Forest County, the U.S. District Court of Eastern Wisconsin ruled that deviation in the size of districts is acceptable when district populations are so small. The Court also found that the plaintiffs failed to meet the second Gingles test, which requires political cohesion of the minority group. At issue in the Cottier case is the City of Martin's Ordinance 122, which established boundaries for three voting wards within the city. The plaintiffs claimed the 38 boundaries diluted the votes of Indians in each ward, thereby violating Section 2 of the Voting Rights Act. The plaintiffs also alleged that the City of Martin enacted and maintained Ordinance 122 with a racially discriminatory purpose, thereby violating Section 2 and the Fourteenth and Fifteenth Amendments. The case was originally brought before the courts in 2002. In 2010, the 8th Circuit Court of Appeals dismissed the lawsuit brought by Indian voters against the City of Martin. The majority opinion concluded that the plaintiffs, two American Indian voters, had failed to meet the third Gingles criteria: that White voters usually defeat the Indian-preferred candidates in city elections (Cottier v. Martin 2010). The Impact of the Voting Rights Act on American Indians The Voting Rights Act of 1965 and subsequent amendments unquestionably changed the nature of the U.S. political system. In the years since passage, more minorities are registering, voting, running for office, and winning. No widespread analysis has been completed on the impact of the Voting Rights Act on American Indian registration and turnout; however, analysis of a limited number of jurisdictions that have been involved in voting rights litigation suggest an increase in registration and turnout. McDonald (1989) found that even though systematic surveys do not exist, scattered evidence suggests an increase in registration among American Indians in Arizona, Colorado, New Mexico, and Utah. A previous study found that in two jurisdictions (i.e., San Juan County, Utah, and New Mexico) bilingual language assistance programs have resulted in an increase in registration and turnout (McCool, Olson, and Robinson 2007, 155-58). 39 One of the most significant changes resulting from voting rights litigation is the change in voting structures, particularly at-large electoral systems that can cause vote dilution. At-large electoral systems hinder the ability of minorities to elect candidates of their choice and diminish the success of minority candidates (Davidson and Korbel 1984; Engstrom and McDonald 1981; Grofman and Davidson 1994; Karnig 1976; McCool, Olson, and Robinson 2007; Robinson and Dye 1978; Taebel 1978).29 Dramatic gains have been made in office holding for American Indians once at-large systems are dismantled (McCool, Olson, and Robinson 2007). A previous study examined nineteen jurisdictions that replaced their at-large systems with another electoral system (i.e., single-member districts, mixed system, or cumulative system) as a result of lawsuits filed under the Voting Rights Act. In these nineteen jurisdictions, only six American Indians had ever been elected in the at-large system. When the at-large structure was replaced with single-member districts, Indian candidates were successful. As of 2007, twenty-five Indians held office in fifteen of the jurisdictions that switched from an at-large system. In those jurisdictions, only one Indian had ever been elected under the old system. Indian candidates are less successful when cumulative voting systems or mixed electoral systems are implemented in place of at-large systems (McCool, Olson, and Robinson 2007). Previous studies have shown that minority officeholders are associated with substantial shifts in "responsiveness to minority interests and the inclusion of minorities in decision making" (McDonald 1989, 1277). My work indicates that the election of Indians to public office has also had a positive impact on services, Indians' access to 29A handful of studies have failed to show the detrimental effects of at-large elections on minority candidates (e.g., Cole 1974, 1976; MacManus 1978; and Welch and Karnig 1978). 40 government, and Indians' perception of government. However, Indian- elected officials are divided as to their impact on laws and regulations in their jurisdictions (McCool, Olson, and Robinson 2007). This finding is not surprising considering that Indians are often still in the minority in public office and can be easily outnumbered when voting. For example, in most of the case studies, Indians were often only one of a multimember county commission, limiting their ability to effect laws and policies. The impact of the Voting Rights Act on American Indians has been positive by many measures. More Indians are able to register and vote and to have a meaningful vote; that is, they are able to elect candidates of their choice. More Indians are successful as candidates, winning elected office at the local level often when no Indian had previously held public office in the community. It appears that this success has led to positive effects on services, access to government, and the perception of government among American Indians. CHAPTER 3 UNDERSTANDING POLITICAL PARTICIPATION In the past several decades, a substantial amount of research has been conducted on political participation in the United States. As political scientists have sought to identify factors that influence an individual‟s decision to participate in the political process, the socioeconomic model has effectively explained political participation. However, while in general this model works well, it does not adequately explain participation for minority groups, including American Indians. In developing a more complete understanding of participation among American Indians, it might be useful to rely upon a theory that accounts for contextual factors such as the empowerment theory rather than to exclusively rely upon individual level factors. The use of the empowerment theory has yielded positive results in explaining the turnout of African Americans, another minority group for which the socioeconomic model has not adequately worked. Studies of political participation typically emphasize individual characteristics or resources, with particular emphasis placed upon individual socioeconomic status. An extensive body of research indicates a strong and positive correlation between socioeconomic status and political participation (Rosenstone and Hansen 2002; Verba and Nie 1972; Wolfinger and Rosenstone 1980). In addition to socioeconomic status, scholars have also studied the relationship between other individual characteristics such as race, gender, and age, along with attitudinal variables such as efficacy and trust on 42 political behavior. These studies have reaffirmed strong relationships between individual characteristics and participation. "These scholars argue, in effect, that the decision to participate is primarily an internal process, a function of ability, knowledge, and interests, and is largely unresponsive to social and political cues" (Gay 2001, 590). Yet, these models of participation, which focus on individual characteristics, do not provide an adequate basis for explaining turnout among American Indians. The limited number of studies on Indians has found that even when controlling for socioeconomic status, Indians vote at lower rates than all other racial and ethnic groups (Peterson 1997). Little research beyond these socioeconomic studies has been conducted on Indians. Yet, opportunities are there to better understand participation and voter turnout among this population by relying upon other models that consider more than individual level variables and include the social and political context. In the last fifteen years, scholarship in the area of minority political participation has developed by more fully incorporating contextual factors into the study of participation of other racial groups. Of specific importance to this study is the effect of the political environment (or political context) on participation (Bobo and Gilliam 1990; Gilliam and Kaufmann 1998; Kaufmann 1999). This line of scholarship has been useful in expanding an understanding of participation, especially among minority populations for whom the traditional model of socioeconomic status falls short. Of particular note is empowerment theory, which explores the relationship between participation rates and minority elected officials. Empowerment theory is a social-psychological theory of group behavior. It requires group cohesiveness, and it argues that group members are likely to experience a psychological response to their in-group empowerment (Kaufman 2003). Empowerment 43 theory argues that as a group achieves significant representation and influence in political decision making, group members will experience increased levels of political trust, efficacy, and knowledge that in turn will positively affect participation rates. Political empowerment, also referred to as political incorporation by Browning, Marshall, and Tabb (1984), is defined in this study as the "extent to which a group has achieved significant representation and influence in political decision making" (Bobo and Gilliam 1990, 378). Empowerment theory has been applied to African American and Hispanic voters, yielding significant findings. Bobo and Gilliam (1990) found that African Americans in high-empowerment areas, as measured by African Americans holding mayoral office, are more active than African Americans in low-empowerment areas. Empowerment has positive effects on trust and efficacious orientation toward politics (Bobo and Gilliam 1990). According to Gay (2001), there is "mounting evidence of a relationship between minority officeholding and political behavior" (590). Although empowerment theory has not yet been applied to American Indians, it holds much promise in explaining the participation of this racial group. The Traditional Model and Individual Characteristics Individual Characteristics: Socioeconomic Status For more than seventy years, scholars have been examining the American voter. An important, large-scale study of the effects of socioeconomic status was completed by Verba and Nie in 1972.1 They found that high socioeconomic status has positive effects 1Socioeconomic status, which typically includes education, income, and occupation, is the traditional variable used to explain turnout. The People's Choice (Lazarsfeld, Berelson, and 44 on the development of knowledge, skills, and civic attitudes; these in turn are strongly related to voting (Verba and Nie 1972). One limitation of this early study is that the research did not "disentangle the role of education, occupation, and income" (134) but used a simple combined socioeconomic status variable. Subsequent studies have determined that these three variables (i.e., income, education, and occupation) are not equally related to turnout (Wolfinger and Rosenstone 1980). Education, of the three, is most strongly related to who votes. In fact, education has a "very powerful independent effect on voting" (Wolfinger and Rosenstone 1980, 23). As education levels increase, so does participation in elections as well as in other forms of political participation such as volunteering for candidates or political parties, persuading others to vote, donating, writing elected officials, signing petitions, and attending political meetings (Rosenstone and Hansen 2002). Education affects participation in three distinct ways. First, education increases cognitive ability, which is necessary for understanding the complexities of policies, campaigns, and other political information. Second, education imparts experience with bureaucracy, which assists individuals with registration and voting. Finally, education builds characteristics, including efficacy and interest in politics that encourage participation (Wolfinger and Rosenstone 1980). Rosenstone and Hansen (2002) confirmed these findings: Those individuals with more education are more likely to vote than those with less education. Initial research indicated that income has a modest effect on voting when education and occupation are controlled (Wolfinger and Rosenstone 1980). Wolfinger and Rosenstone determined that once an individual attains a modest standard of living, Gaudet 1948) was an early study addressing the influence of individual characteristics on voting in America. 45 additional income does not affect whether one votes. Recent studies have contradicted these early conclusions. Rosenstone and Hansen found that income does affect one‟s level of participation in politics, including voting. Those with an income above $50,000 participate at a much higher level than those with an income below $20,000 (Verba, Schlozman, Brady, and Nie 1993). Further examination supports the finding that those who are very poor participate much less. Verba et al. (1993) examined the participation rates for those receiving means-based benefits compared with those receiving nonmeans-based benefits. The findings indicate that those who received food stamps, Medicaid, housing subsidies, and aid to families with dependent children were much less likely to participate than those who receive nonmeans-based benefits such as student loans, Social Security, and Medicare. These findings applied to various forms of political participation, including voting, serving on a board, working on a campaign, and donating (Verba, Scholzman, Brady, and Nie 1993). Again, income came in a distant second to education (Rosenstone and Hansen 2002). Occupation, the third socioeconomic status variable, also has a modest effect on turnout. Studies concluded that the characteristics of the job rather than the status of the job are more important in effecting turnout. Jobs that involve bureaucratic skills, politics, or government work assist individuals in developing the skills necessary to vote as well as heightening their interest in politics that is evident in the turnout rates for different occupations (Wolfinger and Rosenstone 1980). Recent studies did not address the effect of occupation on turnout (Rosenstone and Hansen 2002). 46 Individual Characteristics: Race The discipline of political science has paid attention to the political behavior of Whites and to some extent persons of color for more than thirty years. However, most research in the field that addresses the political participation of persons of color is limited to studies of African American participation and, to a small extent, the political participation of Asian Americans and Hispanics and very little political participation to American Indians (see Bobo and Gilliman 1990; Lien 2000; Tate 1991). In general, non-Whites, including Hispanics, Asian Americans, African Americans, and American Indians, vote less than Whites. Among these four groups, Asian Americans, Hispanics, and American Indians vote even less than African Americans and Whites (Lien 2000, 207). However, studies have found differing relationships between voting and race when socioeconomic status is controlled. For example, African Americans participate in politics at higher rates than Whites when controlling for socioeconomic status (Wolfinger and Rosenstone 1980; Tate 1991). Research also indicates that Asian Americans and Hispanics vote less than Whites, even after controlling for socioeconomic status. Specifically, Asian Americans are 23% less likely to vote than Whites when controlling for socioeconomic status (Lien 2000). Studies also indicate that Hispanic voter turnout is not well explained by the socioeconomic model. Garcia (2003) found that higher education results in higher turnout in Hispanic voters. However, income and occupation do not seem to have a significant effect on turnout for this group. Higher income and occupational status do not have the same positive effect for Hispanics as they do for non-Hispanics (Garcia 2003). Although these populations are studied in-depth, nationally, and over long periods of time, 47 American Indians are severely understudied in political science (Prindeville and Gomez 1999). Scholars who study American Indian participation have noted that there is a dearth of information about the politics of American Indians. With few notable exceptions mainstream political scientists have generally failed to examine either the diversity of tribal governments operating across the United States or the character of Indian politics on or off Indian lands. (Prindeville and Gomez 1999, 19; see also Wilkins 2002) Many reasons likely contribute to the lack of research with regard to this minority population. First, surveys do not always count Native Americans as their own category; rather, they are combined with other persons of color in the "other" category (McCool 1985, 118; Phelps 1991). Even the Current Population Survey did not count Native Americans as a separate category until 1990 (Lien 2000; Peterson 1997). Second, small studies tend to focus on single tribes or small geographic areas. In addition, both large surveys and small studies may be limited by the fact that many Indians live in remote areas where language and cultural barriers exist (McCool 1985). Scholars have been constrained by these limitations; thus, what is known about Indian participation compared with what is known about the participation of other minority groups is limited. To begin, Indian participation rates are lower than participation rates among non-Indians, even when socioeconomic status is controlled (Lien 2000; Peterson 1997). Peterson (1997) published one of just a handful of existing articles on Native Americans and voter turnout in nontribal elections. He examined the role of race, income, age, gender, and education on turnout. Peterson‟s quantitative study attempted to overcome data limitations by focusing upon individual- level data, two election cycles, and American Indians from seven states rather than from a single tribe. Again, the results of Peterson‟s research indicated that socioeconomic factors do 48 influence whether a person votes. However, the most significant finding was that Native Americans still vote at lower levels than non-Native Americans when controlling for socioeconomic status. Peterson (1997), relying on archival data from the 1990 and 1992 Current Population Surveys available from the U.S. Census Bureau, developed a dataset that included 674 American Indians from seven states, each with a large Indian population- an adequate size for conducting statistical analysis. The dependent variable in Peterson‟s analysis was whether an individual voted in the election. The independent variables were race (Native American or non-Native American), income, gender, education level, and year of the election (1990 or 1992). As noted earlier, income and education are the best predictors of voter turnout and were used in this study to determine the effect each has on Indian voting rates. Initially, Peterson (1997) conducted a bivariate analysis to determine whether race influences voting. The analysis included a cross-tabulation and a t test, both of which indicate a significant relationship between race and voting in the population. Peterson noted that there is "a clear relationship between whether someone votes and whether they are Native American" (324). The bivariate analysis does consider causal factors other than race; therefore, Peterson appropriately continued his study with a multivariate logistic regression. This technique allows the researcher to control for the effect of numerous causal variables on the dependent variable: voting. It is clear from Table 3.1, derived from Peterson‟s (1997) work, that socioeconomic factors such as education and income play a role in whether an individual votes. Table 3.1 shows the regression coefficients and the significance levels for each 49 Table 3.1. Logistic Regression Results of Peterson‟s Study, Combined 1990 and 1992 Data Variable Logistic Regression Coefficients Significance % Change Race (Indian = 1, non-Indian = 0) -0.07168 0.001 -51% Gender -0.0094 0.755 xxx Education 0.1233 0.001 13% Income 0.0556 0.001 6% Age 0.0321 0.001 3% North Dakota 0.2258 0.001 25% South Dakota 0.2687 0.001 31% New Mexico 0.0699 0.323 xxx Montana 0.5038 0.001 66% Oklahoma 0.0321 0.643 xxx Florida -0.8517 0.005 -15% Year 0.0523 0.001 5% Note: The coefficient is the partial logistic regression coefficient. Source: Peterson 1997. independent variable. Peterson also included a column labeled "% change," which indicates the change in the likelihood of the dependent variable (voting), with a one-unit change in each of the independent variables (controlling for the effects of the other independent variables). For example, if an individual was Native American, then he or she was 51% less likely to vote than a non-Native American. Each increase of $3,000 in family income raised the likelihood of voting by 6%, and for each year of education received, he or she was 13% more likely to vote. Based upon the logistic regression results for the combined 1990 and 1992 data, education and income influenced voter 50 turnout for all individuals. It is also clear that some variables, including gender and being a resident of New Mexico and Oklahoma, play no significant role in whether an individual votes. The results of Peterson‟s (1997) research indicated that socioeconomic factors such as income and education influence whether a person votes. However, what is most interesting in Peterson‟s report is that when controlling for socioeconomic status Native Americans still vote at lower levels than non-Native Americans. Unfortunately, it is not clear from Peterson‟s results the precise role income and education have on Native American turnout. Peterson noted that the results demonstrate that Native Americans do not vote at the same levels as other groups when controlling for socioeconomic factors. Peterson (1997) acknowledged the following: Overall, the results demonstrate the socioeconomic theory of voter turnout does not accurately explain Native American voting patterns in either election. While it is not clear what makes the Native American voters different from other groups, it is clear that a difference does exist. (324-25) Peterson stated that the lower rate "might be caused by cultural factors, a lack of political knowledge, tribal identities overriding national political identities, or any other of a myriad of possible explanations" (326). Another limitation of the study that deserves note is the fact that this study did not identify whether any differences exist among reservations, tribes, or clans. Little research beyond socioeconomic models has been conducted to explain the voting behavior of Indians (O‟Brien 1989; Prindeville and Gomez 1999). However, one important finding that has been established is the role of tribal culture on participation. It would be erroneous to assume a pan-Indian identity; differences between tribes matter 51 (Bataille and Sands 1984; Klein and Ackerman 1995; Niethammer 1977). Prindeville and Gomez (1999) found that particular tribal culture and traditions do discourage, prohibit, or both women from running for or holding political office (27). They discovered that a majority of Pueblo tribes in New Mexico are more "traditional" than other Indian nations. These traditions have hindered women‟s political participation in tribal and nontribal politics (Prindeville and Gomez 1999, 27-28). In summary, a limited amount of knowledge exists about Indian participation rates. Further, most of the scholarship has relied upon socioeconomic status as the primary model. This model does not adequately explain Indian participation rates. Individual Characteristics: Attitudinal Factors Research has also demonstrated the link between attitudinal factors and political participation. Although several attitudinal factors have been shown to affect participation rates, this section focuses specifically upon trust and efficacy, as these seem to have a significant role in reducing turnout among minority populations. Political trust is an evaluative or an affective judgment of government, a lack of trust in political cynicism (Miller 1974). To begin, mistrust and dissatisfaction with government and politics have been found to undermine the desire to vote (Patterson 2002, 82-83), which may have implications for American Indian participation rates. Historical conflicts between American Indians and Whites are well documented and include legal and illegal barriers that prevented Indians from participating in the political process (Peterson 1957; Phelps 1991; Svingen 1987; Wolfley 1990). The centuries of barriers created "a pattern of separation that has become firmly entrenched" (Svingen 1987, 278). Other scholars have implied that historical as well as current conflicts with local, state, 52 and federal government have created an atmosphere of distrust among the Indian people (Peterson 1997). The long-lasting effects of such discrimination could be a cause for lower participation rates among American Indians. A second attitudinal factor that relates to political participation is efficacy. Two types of efficacy, internal and external efficacy, deserve further explanation. Internal efficacy is often described as a feeling of personal political effectiveness (Miller 1980). Internal efficacy could also be defined as the feeling that individual political action does have, or can have, an impact on the political process (i.e., it is worthwhile to perform one‟s civic duties; Campbell, Gurin, and Miller 1954, 187). Tate (1991) provided an example of internal efficacy at work. She found that the Ronald Reagan Administration had created a political climate in which blacks felt that the political stakes involved in 1984 were perhaps greater than in previous elections. Similarly, [Jesse] Jackson‟s candidacy may have had an additional affect on black participation. . . . Without Jackson‟s candidacy, fewer churches in the Black community might have gotten involved. (1172) Those two factors had positive effects on internal efficacy; thus, a higher participation rate by Blacks was seen that year. External political efficacy is related to an individual‟s beliefs about government responsiveness. The "declining beliefs about government responsiveness, that is, lowered feelings of „external‟ political efficacy" may be one cause of the decline in electoral participation in the United States (Abramson and Aldrich 1982, 502). 53 Individual Characteristics: Knowledge Finally, the relationship between knowledge and political participation is worth noting. The question of how politically informed the American public is has been studied for decades. Delli Carpini and Keeter (1996) found that Americans are not as uninformed as some previous studies have suggested (69). They noted that Americans are about as informed as they were fifty years ago and that they are slightly more knowledgeable in some areas (Delli Carpini and Keeter 1996, 116-17). They also delineated between the informed and the less informed, finding that men are more politically informed than women, Whites are more informed than Blacks, younger people are less informed than older generations, and economically disadvantaged individuals are less informed than wealthy individuals. Delli Carpini and Keeter offered some explanation. They noted that the following three factors have a great effect on political learning: (a) structures (formal education, income, and occupation); (b) knowledge; and (c) and behavior (Delli Carpini and Keeter 1996, 180). The best predictor of political knowledge is a formal education (Delli Carpini and Keeter 1996, 188), in particular a college education (Delli Carpini and Keeter 1996, 192). Thus, those who are disadvantaged (women, poor, and minorities) are at a disadvantage to gain political knowledge. Although the individual level factors discussed above provide some understanding of Indian voting behavior, it is clear that limitations can be found in the research findings. Equally important, it is necessary to move beyond these individual factors and to explore the ways in which contextual factors may impact voting behavior for this minority population. The following section focuses upon a promising line of 54 scholarship, empowerment theory, that has successfully shown the impact of the context on political behavior for other minority groups. Empowerment Theory A scholar recently noted the importance of examining the "whole person" when studying political participation among minorities (Garcia Bedolla 2005). As noted above, low participation rates among minorities, including American Indians, has not been well explained by socioeconomic status or by other individual level variables. It is important to examine the whole individual by examining not only the individual level variables but also the context. One such theory that has been successfully applied to minority populations to better understand their participation rates in the political system is empowerment theory. The theory moves beyond the traditional models of participation by considering the importance of a person‟s political context as a potential influence on individual participation rather than focusing exclusively on individual level variables. Empowerment theory is a social-psychological theory of group behavior. At its core, empowerment theory is based upon the premise that as a group achieves significant representation and influence in political decision making, group members will experience increased levels of political trust, knowledge, and efficacy that in turn will positively affect participation rates (Bobo and Gilliam 1990; Browning, Marshall, and Tabb 1984).2 The theory has yet to be applied to American Indians, yet it holds much promise in explaining voting rates among this group. 2In the case of American Indians, so few have been elected to office that the election of a single Indian may meet the standard of "significant." 55 Previous studies have demonstrated the positive relationship between political representation and participation rates among other minority groups (see Bobo and Gilliam 1990; Browning, Marshall, and Tabb 1986; Kauffmann 2003). "Visible descriptive representation sends a message of inclusion to group members and has been shown to heighten individual levels of political engagement within empowered groups" (Kaufmann 2003, 109). It is likely that when ethnic minorities can identify with their representative, they become less alienated and more involved in the political system (Browning, Marshall, and Tabb 1986). In the Bobo and Gilliam (1990) study, the role of empowerment was explored as measured by Black control of the mayor‟s office on Black participation. Two major findings encouraged them to approach the study using the empowerment theory. First, Blacks participate at higher levels than Whites when socioeconomic status is considered (Millbrath and Goel, 1977; Olsen 1970; Verba and Nie 1972). Second, a strong sense of ethnic community or group consciousness is seen as