“The land was ours before we were the land’s.” With those words, Robert Frost began his poem, “The Gift Outright,” at President John F. Kennedy’s 1961 inauguration.
Had Frost been speaking to Native Americans, he might have said, “The land was yours before we were the land’s.”
Today, we occupy one nation — “theirs” and “ours” — one people under a single national flag. Admittedly, native peoples were often recruited by force to participate in the United States. But they were also persuaded by leaders like Thomas Jefferson, who invited them to “unite yourselves with us, join our Great Councils and form one people with us and we shall all be Americans.”
Sadly, foes of Native American rights undercut such promises — and democracy.
These efforts endure. Montana Republicans’ new vote restriction legislation could easily suppress the Indian vote. The new measure forbids an individual from delivering another person’s absentee ballot to the polls. That delivery method is essential for home-bound voters in places without mail service — the situation on many Montana reservations and others across the country. And many elderly Indians living on reservations do not have cars.
The Republicans controlling Montana’s legislature know that subtracting small numbers of votes can change election outcomes. In 2018, Democratic Sen. Jon Tester “won seven of eight Montana counties containing the headquarters of a federally recognized tribe and received 50.3 percent of the vote statewide.”
To justify voter restrictions, Republican state legislators across the country rely on the deception that they are targeting voter fraud. Last November, no lesser authority than Trump’s Attorney General William Barr searched for widespread ballot fraud and found none.
Suppressing Native American voting is not new. In 1884, the Supreme Court ruled that John Elk, an Indian resident of Omaha, Neb., could not vote because Indians were not covered by the Fourteenth Amendment’s promise that everyone born in the United States is a citizen.
Justice John Harlan, “the Great Dissenter” and a champion of racial justice, dissented, declaring that someone such as Elk, who settled among whites, “joins himself in the body politic,” and his “right to protection … must be as complete as that of any other native-born inhabitant.” The majority’s anti-voting rights decision stood until 1887, when the General Allotment Act promised that Native Americans accepting the federal government’s decision to divide their tribal reservations into individual plots would become citizens.
Still, every state with significant Indian populations continued to suppress their vote. In Utah, Native Americans living on reservations were denied the right to vote until 1957. Arizona’s Supreme Court ruled in 1928 that Indians could not vote. (The Court reversed itself in 1948.)
Those in power today continue feeding resistance to Native Americans’ voting rights. On July 1, in Brnovich v. Democratic National Committee, the U.S. Supreme Court rejected a 1965 Voting Rights Act challenge to an Arizona election law like Montana’s, prohibiting ballot delivery by anyone other than the voter. “The mission of the Voting Rights Act is … to enable minority voters to vote and to participate,” Harvard Law School Professor Nicholas Stephanopoulos wrote. “[T]he conservatives on the Court have … a visceral dislike for that mission.”
Notably, Arizona’s Indian population is among the nation’s largest. And while the 2016 law upheld in Brnovich did not prevent a 2020 victory for President Biden in that state, the Brnovich Court just signaled a green light for expanded voter restrictions.
Thus, without Congress adopting the “For the People” Act, and the John Lewis Voting Rights Advancement Act, the Brnovich decision takes the teeth out of United States v. Blaine County, the 2004 Ninth Circuit ruling that established the Voting’s Right Act’s authority over Native American voting. One of us (Hoxie) testified at trial in that case.
Beyond Arizona and Montana, Florida, Iowa, and Kansas have adopted legislation that restricts assistance in delivering ballots. Each state has rural Native American communities.
Nobel Peace Prize recipient Nelson Mandela famously said, “A nation should not be judged by how it treats its highest citizens, but its lowest ones.” By that standard, and given our longstanding mistreatment of Native Americans, history’s judgment of the election laws sweeping Republican state legislatures will not be kind.
NOTE: This post has been updated to correct the spelling of Justice Harlan’s name.
Arlinda F. Locklear, an enrolled member of the Lumbee Tribe of North Carolina, federal Indian law practitioner and the first native woman to argue before the U.S. Supreme Court, contributed to this op-ed.
Frederick E. Hoxie is professor emeritus of history, law and American Indian studies at the University of Illinois, Urbana-Champaign. His latest book is “This Indian Country: American Indian Activists and the Place They Made.”
Dennis Aftergut is a former federal prosecutor, currently of counsel at the Renne Public Law Group in San Francisco.